A civil lawsuit involving the Ellis County Commission is moving forward in district court. A petition was filed in December by Mary Alice Unrein, developer of a residential subdivision known as Blue Sky Acres that was rejected by the commission in November.
The county Thursday filed an answer to the petition, as well as a motion for the court to dismiss the lawsuit and a memorandum in support of that motion.
Unrein is seeking to make the commission reverse its decision, which was handed down in a 1-1 vote. Commissioner Dean Haselhorst favored the development, while commissioner Marcy McClelland voted in opposition. A majority vote is required for approval.
The lawsuit is filed against the commission as a whole, and McClelland specifically. The third county commissioner, Barbara Wasinger, had recused herself from the issue to prevent conflicting interests.
McClelland said her opposition was due to concerns about water supply and the possibility of groundwater contamination from privately maintained septic systems, which would be necessary for the development.
The lawsuit, which is asking the court to issue mandamus action for the commission to reverse its decision, notes the developer had complied with city and county subdivision regulations, and alleges McClelland’s decision was “arbitrary” and “unreasonable.”
The county’s response alleges the use of mandamus action would not apply to this case under state statute, in part because McClelland’s decision was “discretionary.”
McClelland and Haselhorst declined to comment, as did County Attorney Tom Drees. David Cascio of Kansas City, Mo., is the county’s lead attorney in this matter; his firm has a policy not to discuss pending litigation with the media.
The Hays Daily News also attempted to contact Tom Wasinger, who has acted as an attorney and spokesperson for the developer. That call had not been returned as of publication time.
Unrein also is seeking damages, including attorney’s fees. She is being represented by Hays attorney Donald Hoffman.
The next step in the proceeding likely will be to set a hearing for the county’s motion to dismiss the lawsuit, said Amanda Truan, district court clerk. Unrein also has time to file a response to the county’s documents.
If the county’s motion to have the matter dismissed is not granted, the county’s answer to Unrein’s petition includes a demand for a trial by jury.
The case will be heard by a judge from another county to prevent any conflicting interests.