Landowner sues Shawnee over Vantage apartments decision
The landowner seeking the development of the Vantage at Shawnee Apartments has sued Shawnee on claims that the city unlawfully denied its zoning request change to develop the land at 62nd Street and Pflumm Road.
The lawsuit filed Tuesday by Qrivit LLC argues the City Council’s decision to deny the zoning request change along with the preliminary plan for the $35 million apartment project was “improper and illegal.” The lawsuit claims the City Council denied the project based on public opinion rather than the project's compliance with Shawnee's comprehensive plan. That plan states the land should be used as mid-density residential.
The complaint directly quotes Council Member Mickey Sandifer, who said after the vote to deny the project was completed, “I sided with the people and what they wanted. But I think it’s a very good project.”
The City Council voted 5-3 against passing the project and the required zoning change at a Jan. 25 council meeting. The council needed a super-majority vote of seven to pass the measure due to a successful protest petition made by residents in the area. Council Members Jim Neighbor, Dan Pflumm, Eric Jenkins, Mike Kemmling and Sandifer voted against the project while Jeff Vaught, Stephanie Meyer and Brandon Kenig were in favor of it.
Throughout the debate over the project and the zoning change, the council spoke about the legality of its ability to deny the zoning request based on public opinion. According to state law, governing bodies can reject rezoning proposals based on eight criteria, called the Golden Factors, which were established following the Kansas Supreme Court case Golden v. Overland Park in 1978. That case also established that zoning request changes cannot be denied based solely on public opinion.
At one City Council meeting, residents in the area protesting the Vantage at Shawnee project pleaded with the council to hear their concerns and represent them with their vote. Several council members, including Neighbor, Pflumm and Jenkins, said they had to listen to the people directly affected by the project in the immediate area.
Vaught warned the council against siding with residents opposed to the project, even though the project’s preliminary plan had been approved by the city Planning Commission twice and was recommended by city staff for approval.
“This is going to open up a can of worms,” Vaught said at the Jan. 25 meeting. “This is going to be a problem.”
The lawsuit now facing the city, brought by attorney Timothy Sear of the Polsinelli Law Firm, which represented the developer America First Real Estate Group in its presentations to the City Council, cites the Golden Factors in its case. It argues the proposed 288-unit, 13 building project was in character with the neighborhood, was in harmony with the zoning and uses of nearby properties, that the property had remained vacant as zoned and was not suitable for the uses under the existing zoning regulations, did not detrimentally affect nearby properties, would not adversely affect the capacity or safety of the road network, would not create environmental harm, would not pose a threat to public health, safety or welfare, and finally that the existing zoning in the area created hardship on the landowner.
Residents in the area argued during several public meetings the proposed project did affect the character of the neighborhood and was not in harmony with the zoning of the surrounding area, much of which is single-family residential. They also voiced concerns about traffic along Pflumm Road and 62nd Street.
The developer argued that other large non-residential properties also abutted the land, including the Shawnee Civic Centre, the Thomas A. Soetaert Aquatic Center, and the church and AT&T building on the south side of the property. The developer also cited traffic studies done in the area that showed the surrounding streets could handle the added traffic.
This week, Sandifer reaffirmed the statement used in the lawsuit against the city. He said he firmly believed the project was good for the area but had to listen to the residents opposing it.
“I’m put on the council to vote in favor of the residents that I represent,” Sandifer said. “The residents in the area didn’t want it, so I voted the way I voted because I felt that’s how I could best represent the people.”
Sandifer said the project matched all of the Golden Factors, in his mind. He did have one question about the density of the project but said that was not the reason he voted against it.
The original Vantage at Shawnee proposal included 312 units in 14 buildings when it was brought to the city in November. Following two Planning Commission meetings and a public hearing in front of the city’s governing body, the developers proposed several last-minute changes to appease some concerns of residents and council members. The developers proposed removing one of the buildings to lower the unit count to 288, therefore lowering the density to 10 units per acre from 10.89. Mid-density residential guidelines are between 5 to 10 units per acre. The developer also proposed moving some of the three-story buildings inward on the property to create 3 acres of green space on the west side of the land to buffer the neighborhoods from the buildings. Those changes did not affect the vote.
Qrivit LLC is seeking compensation for damages of more than $75,000 and is asking a Johnson County judge to order the city to approve the zoning change and application.
The city of Shawnee said it does not issue comments on pending lawsuits.