Kansas Attorney General Kris Kobach Upholds Kansas Law by Filing Illegal Annexation Case Against the City of Edgerton

Residents in southwest Johnson and northwest Miami counties are rejoicing today over the recent filing by the Attorney General’s office. They have worked hard for the past 2-1/2 years to prove what they knew to be the truth – that the City of Edgerton had worked on behalf of their largest developer to illegally annex nearly 700 acres into their city limits so that they could immediately rezone it to industrial against the wishes of all homeowners.

KSA 12-520(7) allows cities to annex land into their city limits at the request of property owners with no public hearing or approval from neighboring residents required. This is what is known as a consent annexation. In order to do this, the property has to be touching the existing city limits.

What happens if the property is not touching but the developer and the city want to find a way to make it contiguous? In the case of the December 2020 illegal annexation, the developer (and possibly representatives from the City of Edgerton) convinced Johnson County to illegally subdivide a “narrow corridor” to get them across Gardner Road to access a small parcel they purchased that was contiguous. (the southeast corner of property 1 above)

What causes a consent annexation to be considered illegal?

KSA 12-520(g) states: “No city may utilize any provision of this section to annex a narrow corridor of land to gain access to noncontiguous tracts of land. The corridor of land must have a tangible value and purpose other than for enhancing future annexations of land by the city.

The below calendar describes the order of events in a simple visual. The narrow corridor was divided by the Johnson County planning and zoning in an unprecedented maneuver that was historically not consistent with other subdivisions. It was divided from a tract of land that was not even for sale (top right corner of calendar below,) but the developer was purchasing the west 40 acres on that picture and they convinced the property owner of both parcels to divide a small section across the bottom of the east parcel.

Johnson County subdivided it and added to the 40-acre tract to the west of it. This gave the purchaser, Treadstone Acquisitions (another NorthPoint Development affiliate,) the path they needed to get across Gardner Road by having contiguous land between it and another property they purchased on the same day. (properties 1 & 2 on the map above)

The City of Edgerton agreed to annex this newly-created parcel and the contiguous parcel on the east side of Gardner Road at their December 10, 2020 meeting. This all happened the same day the developer purchased the property, which is highly unlikely, unless the city already knew to have this on the agenda.

At the end of that meeting, Mayor Don Roberts called a special meeting for the following week on December 17th but did not disclose the topic.

The next day, NorthPoint Development applied for rezoning on 7 properties, totaling nearly 700 acres, that were originally non-contiguous to the original city limits but that were now contiguous with the illegal annexation. (properties 3-9 on the above map) Oddly enough, these parcels were not even in the city limits at the time of the rezoning filing on December 11, 2020, so why would NorthPoint be requesting rezoning to logistics parks from the City of Edgerton for land in the boundary of unincorporated Johnson County?

That was answered at that special meeting the following week when all 7 properties were annexed into the city limits. The city, county, and developer had all been working in cahoots to get the nearly 700-acres out of requiring a county hearing for rezoning and into the jurisdiction of the city who was poised to rubber stamp the project.

Imagine the residents’ surprise when they were served notices of the rezoning on Christmas Eve 2020. Although only those within 1/2 mile received the notices, an industrial park in the middle of 117 homes within that half-mile radius would negatively affect a community spanning nearly 20 square miles on both sides of the county line.

The citizens were outraged, trying to understand how Edgerton even had authority in the community that was always considered to be South Gardner. Especially since the original intermodal plan with neighboring communities had forbidden any intermodal development south and east of I-35 in the conservation area for the Hillsdale Watershed and the rural residential community.

So homeowners quickly united and formed a community group, Protect Rural JoCo, LLC, in order to organize their efforts and “fight city hall.”

Meetings were held, research was done, and teams were created to get the most amount of impact in a short amount of time, prior to the January 2021 planning commission meeting.

It was quickly discovered that although NorthPoint Development and the City of Edgerton were members of that 2013 Southwest Intermodal Plan that forbid development in the area for the developer’s competition, NorthPoint used that unfair competitive advantage by sending real estate agent, Dan Knight, to strategic properties beginning in 2014 that the developer needed in their contiguous land map to move south and east of I-35 for the expansion of their LPKCI into LPKCII.

The story is the same amongst many of the sellers, that the agent convinced homeowners to sell for “large lot subdivisions” that they were going to build so others could enjoy rural living.

After the first round of purchases in late 2017, the City annexed and rezoned multiple properties south and east of I-35 for Project Mustang, approximately 2 miles west of the disputed Gardner Road properties. However, like the Protect Rural JoCo community, those residents never knew what hit them until it was too late.

The 7 non-contiguous properties in this lawsuit were all purchased by NorthPoint during those 2014-2017 deals, but the developer could not do anything with them at the time because they were not contiguous to the Edgerton City limit and would require a public hearing by Johnson County that would require notice to and public comments by neighboring residents.

So they used the narrow corridor instead, to circumvent the public hearing required by the county for a unilateral decision between the city and the developer. 

The Protect Rural JoCo residents worked together to follow all of the required steps of the process for a successful opposition campaign.

They had to get the required number of protest petitions (18) to force the city council vote to a super majority (4 out of 5 votes.)

When they asked the City for a copy of the area served, they were given one list. This would require 18 of those properties for proper protest petitions. The citizens got 33.

At the council meeting where the city addressed the petitions, the city considered each parcel individually instead of by the combined list they had given the residents, forcing 6 of the 7 properties to not have enough valid protest petitions for those properties, per the city.

These were the kinds of tricks the city continually played on the residents.

Citizens researched the law and rallied funds to pay an attorney to help represent their cause and to advise what needed to be done prior to court. Plenty of citizen volunteers spent hundreds of hours preparing legal documents for their attorney in order to save any legal fees they could and to make sure nothing slipped through the cracks.

During the first planning commission meeting, the residents spoke on the dangers of the truck traffic in the community, the damages to their residential home values from living in an industrial park, and the inverse taking of property rights by the city due to changing the entire zoning use and character of the neighborhood.

In 2019, the Johnson County Planning Commission had already denied another industrial rezoning matter right next door at 207th and Gardner Road, and stated that industrial zoning was the least restrictive use and rural residential zoning was the most restrictive use; therefore, these two uses were not compatible without a sufficient buffer zone.

The planning commissioners were concerned and recommended an economic impact study be prepared in order to see the damages it would cause to unincorporated residents surrounding the project.

The City of Edgerton paid their intermodal partner, Columbia Capital Management, to prepare their biased report that claimed there would be no damages to the community.

Protect Rural JoCo members had their own study prepared that showed the truth – that bringing 11 million square feet of industrial warehouses into the middle of hundreds of homes in a community was not compatible and would change the fabric of the neighborhood and damage home values.

The residents provided the planning commissioners with their study, and the city presented its study at a second planning commission meeting.

Despite the conflict of interest on the economic impact report from the city’s intermodal partner, and the city staff’s attempt at forcing the intermodal through regardless of the harm to the neighbors, the planning commissioners heard the residents’ pleas, and the rezoning was unanimously denied.

The next step after the planning commission’s denial was for the item to be presented to the City Council for a vote on what to do next. They had three courses of action. They could accept the planning commission’s decision, override their decision by authorizing the rezoning anyway, or they could send it back for reconsideration.

At the City Council meeting, the residents showed up in droves, keeping the Edgerton City Council past midnight, in order to express their concerns regarding the project and what it would do to the unincorporated county residents who had no vote on the matters of Edgerton, the city council members, or the mayor.

The citizens were forbidden the opportunity to yield their time to one speaker in order to have a cohesive argument but were instead only allowed 3 minutes each to speak.

The citizens decided to sign up in chronological order so that they could read their sections of the report in order, 3 minutes at a time.

Prior to the meeting, during speaker sign-up, City Administrator Beth Linn gave a copy of the same sign-up sheet showing numbers 19-28, so that no one knew what order they would be in.

It took some quick thinking, but Protect Rural JoCo member, Jennifer Williams, took everyone’s 3-minute scripted speech they had worked on and distributed them in chronological order as names were called so that they could keep the presentation running smoothly.

The city continually tried to throw the residents off, but their resilience and persistence kept them fighting strong.

In an unexpected maneuver, City Attorney Lee Hendricks and City Administrator Beth Linn recommended the City Council vote to send the matter back to the planning commission to give a reason for their decision. The City Council voted to do just that.

During the next planning commission meeting, the City had removed multiple chairs from the meeting room, reserved all but a few for “applicant”, and banished the citizens outside in the cold.

No further public comment was allowed, so the city staff was able to maneuver its plan without the planning commissioners having to look the residents in the eye.

While standing outside in line early to get a seat, residents were sighting multiple tags arriving from Missouri, with business professionals asking around to see if they were in Edgerton. These were all seat-fillers for the “applicant.”

Chairman, John Daly, who doesn’t live in the city but lives miles away near Gardner Lake, prodded the meeting along, coercing the other commissioners that if Edgerton doesn’t take the development then Gardner will, by inaccurately citing the south Gardner Road QuikTrip project, north of I-35 and several miles from the subject property, as his reasoning for Gardner being a commercial competitor in the residential neighborhood. All punches were pulled and the vote was taken.

Imagine the defeat residents felt when they left that night with a unanimous rezoning approval, provided the city make sure they took care of any infrastructure required to avoid traffic concerns.

How could a unanimous denial turn to a unanimous approval when they were only supposed to be stating why they denied it?

That’s what happens when the city attorney, city administrator, and planning chairman don’t even live in the city they are making the decisions for. The residents are silenced for the larger agenda.

The entire process was an emotional roller coaster for people who were just trying to protect their homes and rights.

Residents immediately filed a lawsuit against the illegal narrow corridor and the unreasonable rezoning.

Recently, almost 2-1/2 years later, the judge dismissed the Plaintiff’s rezoning case stating since the city followed proper procedure by holding all of the meetings, that their decision was reasonable.

Nothing about their decision was reasonable, and every Golden Criteria and comprehensive plan in the area was violated, but that too was ignored.

Even City Council member, Josh Lewis, stated on the night of the vote that, “it sucks to be you guys. I’d fight it too if I lived there. But the City doesn’t get a million opportunities to make a million dollars.”

To the homeowners, that was a slap in the face that proved the city representatives knew they were causing damages, but they were putting their own selfish interests first, with no regard for the harm their illegal invasion was causing the people who actually lived there.

Residents felt like they lived in a third-world country, being invaded for their resources, with no protection of their rights.

As for the original annexation lawsuit, Judge Vano said that he can “see the illegality“ but he ruled last summer that the residents don’t have standing to bring a case against the violation.

It is in appeal and Edgerton’s attorneys continually try to claim that the affected homeowners do not have standing to bring that lawsuit. The Plaintiffs believe they have standing and that the legislature’s intentions are being misconstrued with an ambiguity in the writing of the statute regarding standing on a KSA 12-520(g) violation.

However, there is no question from either side that the Attorney General has standing against the illegal annexation and always has. Kris Kobach’s willingness to protect Kansans from rogue government agents is necessary for upholding his oath of office, enforcing state statutes, and protecting constitutional rights.

“We are so grateful that the Attorney General’s office is willing to step up and make sure that local governments are complying with State laws,” said Jennifer Williams. “It gets so discouraging when residents are told over and over that they have no voice in protecting their own property rights. This is such a win for the people!”

Thank you to everyone in the Attorney General’s office for upholding the law to protect all Kansans.

What happens next?

The Attorney General’s office will pursue the case through the normal course of the legal system in order to prove the claims of the narrow corridor. Lawsuits take time, as residents have seen over the past 2-1/2 years. It’s not over yet, but it’s definitely a step in the right direction.

Of course, the City of Edgerton is continuing to deny the illegality in their statement regarding the lawsuit, by claiming the property owner voluntarily annexed into Edgerton. No one is denying that NorthPoint’s affiliate company was created as a Delaware corporation two days before the purchase of that property and voluntarily annexed into Edgerton. That’s not the dispute.

The illegality is in the narrow corridor used in order to get them across Gardner Road so that they could voluntarily annex and rezone nearly 700 more acres without the County meeting that would have been required if they had wanted to annex that 700 acres into Edgerton without the narrow corridor violation that got them there.

Their use of the narrow corridor effectively circumvented all required public hearings and left the decision solely in the hands of the city and the developer – voluntarily!

One comment

  1. This ‘Intermodal’ conflict has been going on for a number of years prior to the illegal rezoning attempt. It has been an attempt to destroy private property rights in Johnson County . The Johnson County Commissioners are ultimately to blame by selling out to special interests for the ‘common good’, something antithetical to this republic.

Leave a Reply

Your email address will not be published. Required fields are marked *