Wayne Developers files petition against Shawnee for invoking eminent domain

Eminent domain
The 20 acres of private property feature a 30,000-square-foot warehouse.

After the city of Shawnee moved to use eminent domain to plan for the conversion of a piece of private property into a new building for a parks and recreation facility, the property owner has filed a countering petition against the city, urging the Johnson County District Court to enter a restraining order and prohibit the city from pursuing its claim.

The private property being contested in Johnson County District Court is located at 18570 Johnson Drive in western Shawnee and is owned by Wayne Developers LLC. Wayne Developers, which is affiliated with Republic Services Inc., a provider of solid waste collection, purchased the land in August 2018, intending to develop the site as a multimillion-dollar transportation facility for collections vehicles.

The city is claiming it must acquire the property, which is adjacent to the city’s public works facility, by eminent domain in order to build a parks and recreation facility. Julie Breithaupt, spokeswoman for the city of Shawnee, said the city is not commenting on any pending litigation.

Melissa Hoag Sherman, an attorney with Spencer Fane LLP who represents Republic Services and Wayne Developers, said the city of Shawnee knew that the private property was for sale last year and could have purchased it then. While Wayne was under contract to purchase the property in summer 2018, city staff recommended approving an agreement for joint access and maintenance of a driveway shared by the private property and the city’s public works facility, she added.

However, prior to the counter petition filing, City Attorney Ellis Rainey said that although the property was offered to the city for lease in 2015, the city was told the property was not for sale.

“At that time, we concluded investing in the needed remodeling of the property under a lease wasn’t financially prudent,” Rainey said in an email. “Although the City’s interest in the property was known to the former owner, the City was never made aware the property was for sale.”

Deputy City Manager Stephen Powell said the same private property was identified in a 2001 appraisal of the city’s parks and recreation needs as a possible location for a parks and recreation facility.

Wayne believes city’s eminent domain claim is attempt to stop commercial development

Melissa Hoag Sherman, attorney for Wayne Developer LLC

Sherman said her client believes the city is attempting to claim the property by eminent domain in order to stop the commercial development. The plaintiff also claims the city has neither budgeted funds nor made plans to build a parks and recreations facility on the site.

“The City is shunning and working to keep out the type of company it should be welcoming,” Sherman said in an email. “And in the process, it’s sending a warning to any business considering expansion in or relocation to Shawnee: not only might you not be wanted here, but we may also try to take what’s yours.”

Both the private property and the site of the public works facility were previously owned by Ron Deffenbaugh, who conveyed the public works site to the city in 1995, according to a city memo.

Sherman said city staff said they did not want Shawnee to be become known as the “trash capital” of Kansas and hoped for the city to be out of the waste business in 20 years. The private property is close to the Johnson County landfill operated by Waste Management.

Wayne Developers indicated in the petition that they believe Shawnee moved forward with condemning the property “very quickly” and filed the eminent domain petition without first obtaining an appraisal of the property or offering to purchase it.

“Likewise, a condemning authority has no power or ability ‘to appropriate private property for only a contemplated or speculative use in the future,’” Wayne Developers claimed in the petition, citing a case between Water District No. 1 of Johnson County and Prairie Center Development LLC.

Powell said a consultant study in August 2018 indicated that Shawnee’s current facility needs included an estimated 34,702 gross square feet of building area.

“The City has not completed a separate estimate for future expansion of public facilities and storage needs,” Powell said in an email.

If the court sides with Shawnee, then a judge will begin the process to identify a fair market value of the property. The property owners and Shawnee will then be able to file a separate new civil action to contest the market value conclusion of that report.