Leawood, developer in tug of war over land

Leawood officials and a developer are locked in a legal dispute over a tract that the city has targeted for a future activity center.

The city filed a petition in Johnson County District Court on Sept. 22 to acquire the property through eminent domain. MD Associates, owner of the 4.7-acre site at the northeast corner of 117th Street and Roe Avenue, subsequently moved to block the city by filing a temporary restraining order. A ruling on that motion is pending.

MD Associates has been trying for about 15 months to gain city approval of its development plan, which proposes a drug store and a medical office building on the site. Soon after those plans were submitted, the company was informed by the city that the site was a candidate for condemnation and a future activity center.

The company says the city does not have a legal basis to take the land.

“There’s no money, no design and no feasibility study for any public use. Are they going to spend $4 million through condemnation for a use that has not even been defined by the city? They cannot take the property without a public need or a public purpose,” said Greg Musil, an attorney representing the developer. “This is different from a normal condemnation because of the way they’ve handled the plan.”

The city’s handling has been objectionable in part, Musil said, because it has involved repeated and unnecessary delays in considering the developer’s revised preliminary plan application.

After consideration of that application was postponed by the city Planning Commission on two occasions over the developer’s objections, the commission ultimately recommended unanimously that the plan be approved by the City Council.

The council did not take up the matter, however, because it was not placed on the agenda in view of the city’s intent to condemn the land. MD Associates filed suit challenging the refusal to act.

A district judge ruled in the developer’s favor, but the court victory did not produce the desired results. The plan application was placed on the council agenda as required, but the council immediately voted to continue consideration for six months.

Musil said he could find no precedent for the council ever having instituted such a lengthy delay on a development plan that had been so thoroughly reviewed by the city staff and planning board.

By failing to act, Musil said, the city could be adversely affecting the price it might pay for the land if it is granted condemnation rights.

“We think they have manipulated the value,” Musil said. “The use of a property is part of its value in condemnation. By not getting (the plans) issued, we think the city is affecting the price.”

Musil emphasized that MD Associates’ primary goal is not to insure that it receive top dollar for sale of the land.

“It’s not just about the money. The developer does not want to sell. They want to develop the property with the people they have a letter of intent signed with,” Musil said.

The developer also is challenging the city’s right to condemn the property for public use because no formal activity center plan is in place.

City officials declined to respond to most of the complaints and charges because the matter is in litigation.

City Attorney Patricia Bennett did state, however, that the city took a similar route when it used eminent domain five years ago to acquire an 11.5-acre tract near 115th Street and Tomahawk Creek Parkway, which is located just east of the property now in dispute.

In that prior case, the city obtained the land for its planned Justice Center and a possible Community Center even though it did not at that time have any building designs drawn or construction funding allocated.

City Administrator Scott Lambers said if the city wins approval for condemnation, it would purchase the site immediately by using temporary notes.

The site is important to the city’s long-range plans for a governmental and recreational complex in the 117th and Roe vicinity, Lambers said. City Hall and the Johnson County Pioneer Library are located across Roe Avenue from the MD Associates property, which is just west of the future Justice Center ground.

Optional sites for municipal buildings are difficult to find, Lambers said, because the city is landlocked and few undeveloped properties are available for purchase. The 117th and Roe site is particularly desirable because it is near the geographic center of the city, he said.

Leawood voters approved a five-year sales tax increase in 2006 to fund the $16 million Justice Center, which is scheduled for construction next year.

The city’s five-year Capital Improvements Plan does not list any planned expenditures for a community center or activity center through 2014. A proposal to conduct a $12,000 feasibility study for such facilities never has gained council approval.

Citizen surveys have been conducted, however, to assess what residents would want in a community center.

Preliminary indications have been that a community center would include a wide variety of recreational amenities including an indoor swimming pool. The current community center site, Lambers said, would not be large enough to accommodate all of the office space and recreation facilities the city would like to provide there. Consequently, parks department offices and recreational outlets would most likely be placed at an activity center.

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