Memorandum

City of Lawrence

City Attorney's Office

 

TO: 

David Corliss, City Manager

Toni Ramirez Wheeler, City Attorney

 

FROM:

Randall F. Larkin, Senior Assistant City Attorney

 

CC:

Scott McCullough, Director of Planning and Development Services

 

Date:

November 21, 2013

 

RE:

Ordinance No. 8926, repealing Ordinances No. 8285 and 8350, annexing and rezoning the 155-acre tract located northwest of the City on Farmer's Turnpike

____________________________________________________________________________ _

 

In 2008, the City received an application to annex into the City a 155-acre tract of land located northwest of the City on Farmer's Turnpike. Because the 155-acre tract does not adjoin and is not contiguous to the City, it was an application for an "island" annexation. Before the City may annex an "island," the County must first find "that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city within" the County. K.S.A. 12-520c. After the County made the requisite findings, the City passed Ordinance No. 8285, annexing the subject property, and Ordinance No. 8350, rezoning the subject property from County A (Agricultural) to IG (General Industrial).

 

In Baggett, et al. v. Board of Douglas County Commissioners, Case No. 2008cv371, filed in the District Court of Douglas County, Kansas, neighbors of the subject property challenged the County's finding that the proposed annexation would "not hinder or prevent the proper growth or development of the area." In Baggett, et al. v. City of Lawrence, Kansas, Case No. 2008cv622, also filed in the District Court of Douglas County, Kansas, the neighbors challenged the City's rezoning of the subject property.

 

After the County and the City prevailed in both cases, the neighbors appealed the judgment of the district court to the Kansas Court of Appeals. On September 30, 2011, the Kansas Court of Appeals entered its Memorandum Opinion, reversing the judgment of the district court and remanding the cases to district court to take further action consistent therewith.

 

On November 4, 2011, the Kansas Court of Appeals issued its mandate in the rezoning case. Because the City did not seek review of that decision, the mandate invalidated Ordinance No. 8350, rezoning the subject property. In other words, effective November 4, 2011, the subject property was no longer zoned IG (General Industrial).

 

 

With respect to the annexation case, however, both the County and the City, as intervenor, filed with the Kansas Supreme Court petitions for review, asking the Supreme Court to overturn the decision of the Kansas Court of Appeal. On May 20, 2013, the Kansas Supreme Court denied the County's and the City's petitions for review. Thereafter, the Kansas Court of Appeals issued its mandate, remanding the annexation case to district court. On July 24, 2013, consistent therewith, the district court entered its journal entry of judgment, reversing the County's finding and remanding the annexation to the County to take action and make findings consistent with the ruling of the Kansas Court of Appeals.

 

Because the City cannot annex an "island," such as the subject property, until after the County makes certain findings and because the court ruled that the County erred in making those findings, the court's ruling rendered Ordinance No. 8285, annexing the subject property, void ab initio. In other words, effective July 24, 2013, the ruling was that the subject property was not properly annexed and was not -- and never was -- a part of the City.

 

Accordingly, the purpose of Ordinance No. 8926 is not to de-annex or to repudiate the rezoning of the subject property. In their various rulings, the courts have already done that. The purpose of the present ordinance is merely to repeal ordinances that the courts have ruled were void, ab initio, (1) so that the public is not confused as to the status of the subject property or the boundaries of the City and (2) so that it is clear that the subject property is not included within the City boundaries, which boundaries the City must, under state law, certify by resolution at the end of each calendar year.

 

Action Requested: Staff requests that the City Commission adopt on first reading, Ordinance No. 8926 repealing Ordinance No. 8285, annexing the subject property, and Ordinance No. 8350, rezoning the subject property, based on the court's ruling that those ordinances are void, ab initio, and for the purposes of clarifying the City's boundaries.