Johnson County judge orders Shawnee to drop eminent domain claim against Wayne Developers’ property

Leah Wankum - August 2, 2019 11:25 am
Eminent domain
The 20 acres of private property feature a 30,000-square-foot warehouse.

A district judge has prohibited the city of Shawnee from moving forward with an eminent domain claim on property owned by Wayne Developers LLC.

Judge Kevin Moriarty, district judge presiding over Division 14 in Johnson County District Court, entered his memorandum decision Wednesday, July 31. His decision granted a permanent injunction requested by Wayne Developers, which owns 20 acres of land at 18570 Johnson Drive in western Shawnee.

The city of Shawnee had filed a claim of eminent domain in March over the property with plans to condemn and acquire it in order to build a centralized facility for the city’s parks and recreation department. The property is located just east of the city’s public works facility on Johnson Drive and shares a driveway access with the city.

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Judge Moriarty found that testimony of city staff and councilmembers demonstrated that the eminent domain claim was “too speculative” because the city did not have concrete plans for use of the property when making its claim.

“The City’s Petition expressly cites ‘anticipated need for future expansion’ as a primary basis for the taking, yet its witnesses could not provide any testimony regarding the nature, scope, and timing of any such use,” Judge Moriarty wrote. “On the record before the Court, acquiring the Subject Property for an ‘anticipated need’ for expansion at an indeterminate time in the future is not an adequate basis under Kansas law to support the City’s pending condemnation.”

Moriarty concluded that Wayne Developers had “met its burden in establishing a right to injunctive relief under governing Kansas law,” and indicated that the property should not be condemned under the city’s eminent domain ruling.

“The evidence before the Court does establish that Plaintiff Wayne would suffer irreparable injury if this condemnation were allowed to proceed, injuries far outweighing any damage or inconvenience to the City, who has and is actively pursuing other locations that will suit its needs,” Moriarty wrote.

Wayne Developers is making plans to build a $13 million trucking facility on site. The company is affiliated with Republic Services Inc., a provider of solid waste collection.

Melissa Hoag Sherman, attorney for Wayne Developer LLC

“We are very pleased with the ruling and believe that it is appropriate and warranted under the facts and the law,” said Melissa Hoag Sherman, the attorney with Spencer Fane LLP who represents Republic Services and Wayne Developers. “Given that an injunction was entered, we anticipate that the condemnation action will be dismissed. My client intends to proceed with developing the property as quickly as possible.”

Sherman noted that the judge’s decision does not include any award of damages to Wayne Developers.

Ellis Rainey, city attorney for the city of Shawnee, said the next opportunity for the city’s governing body to meet with legal counsel will be at the council meeting Aug. 12, during which the city can determine whether it will appeal the decision.

Other findings of the court include:

  • Shawnee had “more than adequate” reserves in the city’s general funds to purchase the property without impacting the current budget or the city’s capital improvement plan, according to evidence provided by City Manager Nolan Sunderman
  • Shawnee did not try to acquire the property by eminent domain prior to Wayne Developers’ purchase in August 2018
  • Sunderman cited other reasons for wanting to acquire the property for future growth of the parks and recreation needs to accommodate a long-term residential population growth of 110,000, as well as an expected closure and conversion of the neighboring landfill to a public park facility
  • Shawnee could have leased the property in 2015, but city staff at the time found it was too expensive to renovate and adapt the property and 30,000 square foot building on site at about $2 million
  • Last year, the city considered but decided not to purchase 6.2 acres on the west side of the public works facility because it would have cost as much as $12 million to build a parks and recreation facility on that track of land
  • A 2001 study shows that 3 to 5 acres were needed to build a parks and recreation facility; while the general vicinity of Johnson Drive and I-435 is recommended as a future site for the facility, the study did not specifically identify the property at 18570 Johnson Drive as the best site
  • The city was also considering selling a portion of the property to Waste Management, which owns and operates the neighboring landfill. Based on an agreement with RDD Holdings, the previous owner of the property that is affiliated with the Deffenbaugh Foundation, Waste Management was allowed first consideration to buy the property. However, the foundation didn’t want to sell the property to Waste Management
  • Sunderman had concerns with the neighboring landfill’s odor problems and didn’t want Shawnee to become known as a “trash town”

Judge Moriarty retired earlier this year, so District Judge Robert J. Wonnell presiding over Division 6 will take over the civil case as it wraps up.

Editor’s note: This story has been updated to include a response from Ellis Rainey, city attorney for the city of Shawnee.

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