Concerns about sufficient water supply and water contamination prompted Ellis County Commissioner Marcy McClelland in 2016 to oppose the Blue Sky Acres development.

McClelland’s reasons for voting against the 65-acre residential development south of Hays on U.S. Highway 183 are laid out in closing arguments filed Monday in Ellis County District Court.

McClelland’s brief says she feared a vote in favor of the development would leave the county commissioners liable if water contamination ultimately occurred.

“…those people could come back on the county commissioners and the Ellis County taxpayers, and it would be because of my vote,” McClelland is quoted in the brief.

With closing arguments submitted from all sides, now the matter awaits the ruling of District Court Judge Bruce Gatterman, Larned, 24th Judicial District, who was appointed to hear the case.

The long-contested development south of Hays has been up in the air since it failed to win approval of the Ellis County Commission in November 2016 by a vote of 1-1. McClelland’s was the dissenting vote. One commissioner abstained.

Hays-area developer Mary Alice Unrein is proposing to develop 20 of the acres into 2-3 acre residential lots. In her lawsuit filed in late 2016, she asked the courts to overrule the veto and decide in favor of developing the land.

“We think Commissioner McClelland didn’t take into consideration the people she should have relied on,” said Unrein’s attorney, Donald Hoffman, with Dreiling, Bieker & Hoffman L.L.P., Hays, saying experts had said there was adequate water and drainage for the development.

“That’s their specialty,” Hoffman said. “That’s not her specialty.”

Judge Gatterman couldn’t be reached for comment, but Kevin Case, lead attorney with Case Linden P.C., Kansas City, Mo. for McClelland and the County Commission, said there’s no mandated deadline for a decision.

“I have no expectation for when a decision could be made,” Case said. “But it’s common for a judge to spend 90 days to 120 days on a matter like this.”

While Blue Sky Acres’ six lots sit outside city limits, they fall within an inter-jurisdictional three-mile boundary, so the city of Hays and its planning commission also considered and approved the development.

McClelland’s brief denies Unrein’s assertion that she voted against the development on a whim and states instead that she wasn’t persuaded by Unrein, the city, or county staff that the development was compliant and would be safe.

McClelland’s water concerns are due largely to an adjacent subdivision fronting U.S. 183, the VonFeldt Subdivision. That subdivision could be hurt by Blue Sky Acres because it already has water-related issues, she claims.

“The VonFeldt Subdivision, if proposed today, would not be approved, as it is non-compliant with existing zoning law,” sates McClelland’s brief.

Developed in 1977, the VonFeldt Subdivision consists of one-acre lots that each have their own water well and septic systems.

During storms, rain water washes across the low-lying subdivision, so that neighboring lots contaminate one another, according to the filings.

“(Unrein) could be making a bad, non-compliant subdivision even worse,” says McClelland’s brief.

The County Commissioner was also concerned about sufficient groundwater to serve not only Blue Sky, but the existing VonFeldt Subdivision.

Pfannenstiel Water Service, Hays, has concluded that there is a sufficient sustainable water supply. But McClelland questioned that conclusion, saying it’s impossible to prove water supply with reasonable certainty.

“No one is certain about the availability of water and no one can seriously dispute the water-deprived conditions of Western Kansas generally and the related litigation,” her brief states.

The County Commissioners’ brief, filed by Case Linden, notes that the commission in nine years has never rejected a plat prior to Blue Sky Acres.

Nevertheless, the brief cites case law to say that each county commissioner has the right to vote their well-reasoned discretion. There is no compulsion, says the brief, to “rubber stamp” recommendations from planning commissions and county staff.

It also denies Unrein’s assertion that the Ellis County Commissioners were presented evidence that Blue Sky Acres was compliant with regulations of the Ellis County Environmental Office, Ellis County Public Works, the Kansas Department of Health and Environment, the Kansas Department of Transportation or the Kansas Department of Agriculture.

Hoffman, Unrein’s attorney, also indicated he doesn’t know when to expect a decision, which is up to the judge.

“It’s in Judge Gatterman’s hands to determine if Commissioner McClelland acted capriciously or arbitrarily and that the plat should be approved,” he said.

The tie vote in 2016 resulted after County Commissioner Barbara Wasinger recused herself from voting to prevent the appearance of conflicting interest. Her husband, Tom, previously served as an attorney for Unrein and continues to be a friend and spokesman.