Several Ellis County and City of Hays officials took the stand Tuesday morning during a bench trial as part of an ongoing legal challenge contesting the county’s rejection of a proposed residential subdivision south of Hays.
The Ellis County Commission in November of 2016 in a tied 1-1 vote failed to approve a final plat for the subdivision, known as Blue Sky Acres, submitted by county resident and developer Mary Alice Unrein. Unrein is represented in court by Hays attorney Donald Hoffman.
Commissioner Marcy McClelland voted against the plat, with Dean Haselhorst in favor and Barbara Wasinger recused from the matter. Unrein in December 2016 filed a petition in district court alleging McClelland’s decision was “arbitrary” and “unreasonable,” and noted she had complied with all pertinent city, county and state regulations.
The petition also argues the approval of the plat was a ministerial act, while the county’s defense has maintained elected officials have the autonomy to make discretionary decisions.
McClelland, in taking the stand toward the end of Tuesday’s trial, reiterated environmental concerns she only briefly had discussed in public when she cast her dissenting vote in 2016. Her objections were based on concerns about water availability in the area, as well as fears about potential contamination resulting from private septic tanks — which are the norm in rural development. She testified much of her decision-making was based on personal experience.
“In my lifetime, I have been subject of having a contaminated water well. I know what that is to go through,” McClelland stated while being questioned by the county’s attorney, Kevin Case of Case Linden P.C. “I was not wanting to put any citizens in that situation.”
Under questioning, McClelland said the elevation of the adjacent VonFeldt subdivision is lower than the land proposed for development, and repeatedly mentioned the downward flow of water.
The county’s regulations — which are consistent with state law — require a minimum of 2-acre lots in rural development to provide adequate space for both a potable water well and septic tank on the same property. Those regulations were not in place until the early 1990s, and most lots in the VonFeldt subdivision are grandfathered in at only 1 acre in size.
Haselhorst also testified, confirming the county’s zoning administrator Karen Purvis had said the smaller lots in the VonFeldt subdivision were more likely to contaminate each other than to be contaminated by future development.
Unrein voluntarily increased the size of her proposed lots when she heard concern from the other residents in the area, saying she did so for “septic system safety of the community.” The six residential lots submitted in the plat ranged from 2.7 to 3 acres in size.
“Everything we have asked, she went above and beyond the call,” he said on the stand, noting she also offered water for fire protection, which is unusual in a residential subdivision.
Haselhorst also repeated his concern about the effect the lawsuit has had on other potential development. During a sometimes tense exchange with the county’s attorney, he said he personally has heard from three developers who are interested but will not pursue any projects until the Blue Sky Acres lawsuit is resolved.
Haselhorst and Unrein testified they were not aware of McClelland’s concerns about the project, and Haselhorst also said McClelland said little to explain her decision publicly.
The plaintiff had secured an opinion from an experienced local driller and reached out to state water officials to make sure groundwater supply was adequate, he said. When asked if he had any concerns at all about the proposed subdivision, Haselhorst responded firmly.
“If I did, I would never have voted in favor of it,” he said.
McClelland, under questioning, also reiterated that she stands by her original decision and would not change her vote if the issue was taken up today.
“I felt if I voted in favor of this and something happened and something was contaminated, I felt that could come back to Ellis County and the taxpayers because of my vote,” she said, also saying she understood her vote could decide the fate of the development.
Unrein purchased approximately 65 acres of land in 2015 with the intent to develop approximately 20 into the subdivision, which would be adjacent to an existing residential development known as the VonFeldt subdivision. Those residents publicly have expressed opposition to the project.
When crossed by the defense, Unrein also acknowledged there is some inherent risk in purchasing land for development before the necessary approvals are in place.
“You had no guarantee you would have the approval to develop the property?” Case asked.
“I was very hopeful,” Unrein replied.
Details also emerged of a private meeting between McClelland and Unrein prior to the vote, which occurred at Unrein’s home. Unrein testified that McClelland never had indicated opposition at that time.
“I had a visit at my home with her and explained all the water, septic tanks,” Unrein said. “She seemed OK with it.”
McClelland’s account differed slightly, saying she told Unrein she would prefer to see another entrance into the subdivision. But road access wasn’t her consideration in voting no, she later testified.
“I told her I would listen,” McClelland said of that meeting, then was asked if she had pledged support to the developer.
“No. I do not make any pledge to anyone,” she said.
She also said she knew Unrein did not appear before the Trego County rural water district that was considering taking on the project.
When questioned by the plaintiff’s attorney, McClelland denied any bias against Unrein, and was asked if she personally knew any residents of the VonFeldt addition. She said she knew one resident before the plat process began, but did not speak to that person about the matter while it was under litigation.
When asked, McClelland also testified she is not personally aware of any cases in Ellis County involving septic contamination of groundwater supply; her experience occurred in another county many years ago.
“Are you against all development?” Hoffman asked.
“No!” McClelland said emphatically.
“Just this one?”
“The way this was put in, yes,” she replied.
Midway through the trial, the county’s defense made a motion to have the case dismissed due to what they claimed was a lack of compelling evidence from the plaintiff. The trial was presided over by Judge Bruce Gatterman of Pawnee County, who was brought in to prevent any conflicting interest among local judges. Gatterman denied the county's request, saying there could be evidence for a prima facie case.
The county’s defense has attempted several times since the lawsuit was filed in late 2016 to have the case dismissed or decided in favor of McClelland and the county commission, alleging that Unrein’s request for mandamus action is not legally justified.
Gatterman has not issued a decision in the case, but ordered both parties to submit their closing arguments in writing within 10 days after the official court transcript is made available.