By JONATHAN ZWEYGARDT
Hays Post
After several months of legal maneuvering, the case of the proposed Blue Sky residential division could finally be coming to a conclusion with a bench trial scheduled for Tuesday.
In November 2016, a proposed residential subdivision south of Hays – Blue Sky Acres owned by Mary Alice Unrein — failed to receive approval of the final plat after the Ellis County Commission voted 1-1 on the measure.
Despite receiving the approval of the county zoning and planning department, the Kansas Department of Health and Environment and the KWO, County Commissioner Marcy McClelland voted against the plat, citing concerns about water availability and wastewater contamination.
Commissioner Barb Wasinger recused herself because of a conflict of interest. Commissioner Dean Haselhorst voted in favor. Because there was no majority, the measure failed.
On Dec. 20, 2016, Unrein filed a lawsuit contending that she completed all the necessary requirements to have to project approved and that “Commissioner Marcy McClelland and other commissioners should be compelled to perform the clearly defined duty to approve the plat and dedication of Blue Sky Acres Addition.”
The suit also argues the court should force the commission to approve the plat through a writ of mandamus.
According to legaldictionary.net, a “writ of mandamus refers to an order by a court to a lesser government official to perform an act required by law, which he has refused or neglected to do. This type of court order is a remedy that may be sought if a governmental agency, public authority, or corporation in service of the government, fails or refuses to do its public or statutory duty.”
In May 2017, District Judge Bruce Gatterman denied a motion by Ellis County to dismiss the case citing state statute that says a person can pursue action against a governing board to have the decision overturned.
Gatterman on Feb. 20 ordered Unrein to present facts of the case to the County Commission and McClelland by March 13. McClelland and the Commission had until April 13 to respond.
He also set a one-day bench trial for 9 a.m. Tuesday on the second floor of the Ellis County Courthouse.
Of the eight facts presented by Unrein, the Ellis County Commission and McClelland had issues with two.
They objected to the claim that McClellan had previously expressed support for the Blue Sky Acres.
In the court document, they said the fact was not relevant to the case.
The commission also denied a fact presented by Unrein that said “the only objections were made by homeowners or members of the governing body” and did not rely on ordinances or regulations.