The City of Westwood suffered a legal setback in its efforts to prevent residents from having the opportunity to vote on the controversial sale of a city park to Karbank Real Estate after the state appeals court ruled that a court case regarding a special election petition could go forward.
Residents, including Rebecca R. Brown, objected, circulating a petition to force a vote on the sale.
The Johnson County Attorney and Johnson County District Judge David W. Hauber both rejected the petition.
State law requires that any petition to hold an election requires a question to be voted upon.
Hauber said the petition did not have such a question and, therefore, was invalid.
However, in his decision, Hauber noted that the petition stated: ” … to place on the ballot the question as to whether the Joe D. Dennis Park shall be sold, traded, or exchanged.”
Moreover, Hauber dismissed Brown’s motion to intervene as “moot” after ruling the petition was invalid on “form of the question” grounds.
The Kansas Court of Appeals strongly disagreed with Hauber, remanding the case for further review.
“We draw attention to the maxim cited by the district court: “[C]ourts should ‘”exercise extreme”‘ caution when rejecting citizens’ initiative or referendum petitions on mere technicalities,” the court wrote. “Given this policy, we direct the district court to provide a full and fair hearing on the issue of Brown’s intervention and, relatedly, her standing to proceed, with adequate notice and the opportunity to develop and present relevant evidence.”
Ryan Kriegshauser, partner at Kriegshauser Ney Law Group, who represents Brown in the case, said he was appreciative of the court’s ruling.
“We appreciate the Court’s thoughtful rejection of the City of Westwood’s arguments attempting to deny our access to the court,” Kriegshauser said. “We will continue to hold Westwood accountable for its attempts to silence and threaten its citizens that simply demand that the City follow the law. The City could have quickly avoided this controversy by simply holding an election. Instead, the City of Westwood continues to choose litigation. We look forward to fully litigating this case.”
Westwood cannot provide financials on project, attempts to silence critics
The case stems from a project in which the only municipal park in Westwood would be sold to Karbank Real Estate for an office and retail development.
The city of Westwood, Kansas—in northeast Johnson County—apparently did not conduct a long-term cash flow analysis on the development project with Karbank Real Estate, which includes millions in new debt for city taxpayers.
According to the Kansas City Star, Westwood residents in January of last year spent nearly four hours pleading with city leaders not to rezone a greenspace — including the city’s only park — for an office and retail development.
“In a 7 to 2 vote at 11:06 p.m., the commission voted to recommend to the Westwood City Council that 7.6 acres of land near 50th Street and Rainbow Boulevard be rezoned from residential to commercial and that a preliminary plan for a four-building project by Karbank Real Estate Co. also be approved,” the Star reported.
According to the plan, Karbank would have to pay off the remaining roughly $275,000 debt the city owns on a former church the city purchased in 2013 and demolished in 2020. Additionally, Karbank would “donate” $2.65 million to the city to purchase a closed school building from the Shawnee Mission School District, demolish it, and grade the land for a new 3.8-acre park.
City documents claim they expect to realize some $6.7 million in revenue over the district’s 20-year life—considerably more than the $2 million they estimate the cost of the new park.
However, it is difficult to determine if any of the projections are accurate because the city has declined to provide — or does not have — standard financial forecast data to support its contention.
On Oct. 23, 2023, the Sentinel sent the City of Westwood an Open Records request for “all documents pertaining to the financial analysis of the Karbank project, including a cash flow forecast for any debt to be issued.”
Rather than providing the requested records, the city directed the Sentinel to its website and said any detailed analysis was exempt.
Then, in late 2023, the Kansas Justice Institute demanded the City of Westwood retract a letter threatening opponents of a development project with a lawsuit. Like the Sentinel, KJI is owned by Kansas Policy Institute.
A “cease-and-desist” letter, dated Nov. 8, 2023, from Westwood City Attorney Ryan B. Denk to Todd Hauser threatened legal action if Hauser refused to withdraw his objections, accusing him and other opponents of “tortious interference” and “slander of title.”
“This correspondence responds to your correspondence dated October 12 and 19, 2023 asserting an objection to the sale of City property located at 5000 Rainbow due to alleged non-compliance with K.S.A. 12-1301,” the letter reads. “Simply stated, your objection is without merit, and the City is prepared to take such legal action against you and/or your clients as may be necessary to protect its title and its contractual relationships.”
And further demanding Hauser and his clients “immediately and formally withdraw any claims or demands related to K.S.A. §12-1301, and furthermore cease in publishing your and their continued slandering of the City’s title (whether through web sites, Facebook posts, door-to-door, or electioneering, as occurred in front of City Hall yesterday, during voting hours), and cease in further tortiously interfering with the City’s contractual relationships. The City expects to receive such a response from you by no later than Wednesday, November 15, 2023.”
Kansas Justice Institute Director of Litigation Sam MacRoberts sent a letter in response on Dec. 7, 2023, demanding that the city withdraw its letter.
“In our view, the City of Westwood’s letter is heavy-handed, unacceptable, and antithetical to the First Amendment. Accordingly, as to those portions of the letter that implicate the First Amendment, they should be immediately — and publicly — withdrawn,” MacRoberts wrote. “Further, to the extent this approach is Westwood’s policy and practice, it should likewise end immediately.”
MacRoberts said Denk’s threats are a violation of the First Amendment.
“Under well-established First Amendment principles, the City of Westwood cannot credibly argue it has a valid claim for tortious interference or slander of title against those who object to the proposed development of the park,” he wrote. “To begin with, those individuals who object to the sale of the park are speaking on matters of public concern. After all, the speech involves a matter of ‘political, social, or other concern to the community,’ and it is a subject of legitimate news interest.’”