A lawsuit against the Ellis County Commission that has been pending in district court for a year has moved a step forward in legal proceedings. A petition was filed last December by developer Mary Alice Unrein regarding the commission’s rejection of her plat for a proposed residential subdivision south of Hays known as Blue Sky Acres.
The plat failed to pass due to a tied 1-1 vote, with commissioner Marcy McClelland opposing the subdivision. Commissioner Dean Haselhorst was in favor, with Barbara Wasinger recusing herself to prevent the appearance of conflicting interest. Her husband, Tom, previously had served as an attorney for Unrein and continues to be a friend and spokesman.
McClelland, when voting against the measure last November, expressed concerns about environmental issues related to private septic systems and groundwater contamination. She also is named personally as a defendant in the lawsuit.
Judge Bruce Gatterman on Friday filed a memorandum decision and order that rejects a motion from the county’s legal team that sought to dismiss part of Unrein’s allegations. The motion filed on behalf of the county in August alleged state statute would not provide for valid claim for relief or subject matter jurisdiction in district court.
Gatterman refuted both claims, writing case law confirms the court’s "inherent authority" to grant relief.
Gatterman, a Pawnee County judge who was assigned to hear the case, also directed all involved parties to schedule a case management conference to move forward.
Ellis County Attorney Tom Drees said Saturday morning the case management conference will decide how the case will proceed.
“I’m sure we’ll probably have an executive session on Monday and fill in the two commissioners who are part of this with what’s going on and go from there,” Drees said, noting the latest development is one step forward in a long process.
“One little step in the race doesn’t determine the outcome of the race,” he said. “It’s a process.”
If the case proceeds, the next significant event could be a trial to determine if the county’s decision was reasonable, said Tom Wasinger, who continues to act as a spokesman for Mary Alice Unrein in the matter. Unrein is represented in court by Hays attorney Donald Hoffman.
“Now Commissioner McClelland is going to have to explain to the public why up until the day of the vote she was supportive of Mary Alice’s project and suddenly changed at the last minute,” Wasinger said. “That has to do with reasonableness. She’s going to have to defend in public why her decision was reasonable.”
McClelland has been questioned at public county commission meetings regarding future development and septic system regulations, and has declined to comment due to the pending litigation.
The county switched attorneys in September, with Ryan Loehr taking over for David Cascio. Both are with the firm Case Linden PC in Kansas City, which has a policy not to discuss pending litigation with the press.
The county previously had filed a separate motion to have the lawsuit dismissed, but Gatterman declined to do so during a hearing in May.
As of early September, the ongoing legal battle had not cost the county financially, as insurance covers legal costs up to a certain amount, County Administrator Phillip Smith-Hanes said.
When the issue was last discussed at a county commission meeting in September, approximately $7,000 remained before the county exceeded its coverage limit. Smith-Hanes said Friday morning that remains the most current cost estimate, as the case had been at an apparent standstill for a few months.