A decision by Ellis County Commissioner Marcy McClelland in 2016 to oppose the Blue Sky Acres development was vindicated Friday.
District Court Judge Bruce Gatterman, Larned, 24th Judicial District, ruled late Friday afternoon that McClelland was within her legal authority to oppose the development.
Gatterman did not rule on whether McClelland was right or wrong to oppose the development, which the city of Hays and its planning commission had approved.
“It is not the function of this Court to decide if McClelland was right or wrong,” the judge wrote. “In determining whether her decision, and ultimately the decision of the Board, were reasonable, the Court finds that the decision was clearly within the scope of authority of the Defendants as conferred by ordinance; the decision was supported by relevant and substantial evidence and the decision was not as a matter of law unreasonable or without foundation in fact.”
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. Commissioner Barb Wasinger abstained for conflict of interest.
Hays-area developer Mary Alice Unrein is proposing to develop 20 acres into 2-3 acre residential lots. In her lawsuit filed in late 2016, she asked the courts to overrule McClelland’s veto and decide in favor of developing the land.
Unrein asserted in her earlier filings that McClelland’s opposition was ridiculous and based on an arbitrary and capricious whim.
Commenting Friday evening on the ruling, McClelland said she had no regrets about her vote.
“No, absolutely not,” she said. “I believe my vote was discretionary and that’s the way it stands. It is not arbitrary or capricious as charged. It was discretionary as I told them.”
Since McClelland’s controversial vote, County Commissioner Barb Wasinger has pressed McClelland various times in county meetings to explain her vote. Wasinger also has voted against other zoning matters saying McClelland’s vote against Blue Sky indicates the county lacks clear policy.
On Friday evening, Wasinger urged an appeal.
“I hope Mary Alice appeals because I think the judge’s decision was wrong,” Wasinger said in a texted statement. “If she appeals, I also hope that people who believe in property rights will help her with her legal expenses.”
County insurance will cover the cost of the county’s attorney fees to outside counsel for the lawsuit, said Thomas Drees, Ellis County Attorney. Drees praised the judge’s ruling.
“The county is happy that the court ruled in its favor, and did not award any costs or fees against the county,” Drees said, “and that the court upheld Commissioner McClelland’s decision finding that she did not act arbitrarily and capriciously, that she made a decision as an elected official based on the facts before her. Right or wrong, she made that decision, which is what we ask our elected officials to do.”
At the time of the vote, McClelland said she was concerned about sufficient water supply and water contamination from an adjacent subdivision fronting U.S. Highway 183.
Developed in 1977, the VonFeldt Subdivision consists of 1-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 earlier court filings by McClelland and the Ellis County Commission, which was also named in the suit. McClelland’s brief held that the VonFeldt Subdivision, if proposed today, would not be approved due to non-compliance with existing zoning law.
While Blue Sky Acres’ six lots sit outside the 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.
The tie vote in 2016 resulted after 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.
Gatterman in the ruling said he wouldn’t comment on the case beyond what was entered in his judgment. He ordered both parties to bear their own costs of the ruling.
Besides an appeal, Unrein also could resubmit the plat next year, at which time McClelland will no longer be in office as a member of the commission, Drees said.