By JONATHAN ZWEYGARDT
Hays Post
The case of the Blue Sky Acres residential subdivision was once again before a judge in Ellis County District Court on Tuesday.
Ellis County resident and property owner Mary Alice Urein filed a lawsuit in December 2016 against the Ellis County Commission and Commissioner Marcy McClelland. The suit was filed after the commission failed to approve the final plat on the 20-acre subdivision on a 1-1 vote on the measure.
Commissioner Barb Wasinger recused herself because of a conflict of interest. Commissioner Dean Haselhorst voted in favor and McClelland opposed. Because there was no majority, the measure failed.
Unrein and her attorney Don Hoffman contend in the lawsuit that the approval of a plat is considered an “administrative/ministerial act” and part of the duty of county commission and that a commissioner cannot exercise “unlimited discretion.”
The suit also argues that McClelland’s vote was “arbitrary, capricious and unreasonable” and that a writ of mandamus would force the commission to approve the final plat.
In testimony Tuesday, McClelland continued to assert that her decision was made based on her life experiences and research she did after consulting with parties involved.
She contends that the possibility of groundwater contamination from septic systems and lack of available water in the area were her main reasons for voting against the measure.
McClelland, who was the last of several Hays and Ellis County officials who took the stand Tuesday, reaffirmed her “No” vote when asked by the county’s attorney, Kevin Case of Case Linden, if she wanted to change her vote.
And when asked if she thought her vote was a mistake she answered emphatically, “No!”
She said while living in McPherson County her family experienced water well contamination and said, “I was not wanting to put any citizens in that situation.”
“I felt if I voted in favor of this and something happened, I felt that could come back on Ellis County and the taxpayers,” McClelland said.
McClelland also denied having a bias against Unrein and said that she knew of one resident living in the VonFeldt Addition before the project was brought to the commission but said they did not talk about the Blue Sky Acres because of the litigation.
The land purchased by Unrein borders the VonFeldt Addition, and McClelland tetified she was concerned additional water wells in the area could jeopardize the water supply and the septic and water runoff from the Blue Sky Acres could contaminate existing lots in the VonFeldt Addition.
County Commissioner Dean Haselhorst, who voted in favor of the plat, was called to testify on behalf of the plaintiff.
Haselhorst said he voted in favor of the plat because, “Everything we have asked, she (Unrein) has went above and beyond.”
He pointed to the fact the Unrein increased the lot size when residents of the VonFeldt Addition reached out to her with their concerns.
According to Unrein, the plat called for six lots; four that would be 3 acres and two 2.7 acres. State and county regulations require lots with septic systems in rural developments to be at least 2 acres.
Haselhorst also said Ellis County Sanitarian Karen Purvis told the commission residents in the VonFeldt Addition were more likely to contaminate each other because they are 1-acre lots.
The VonFeldt Addition was constructed in the 1970s before the county adopted zoning regulations in the early 1990s.
Purvis was not available to testify at the trial Tuesday because she was on vacation so Public Works Director Bill Ring testified in her place.
Commissioner Haselhorst also reaffirmed his support for the project saying, “If I did (have any concerns), I wouldn’t have voted for it.”
In his testimony, Haselhorst said McClelland still has not told him why she refused to approve the plat.
During cross examination the county’s attorney, Kevin Case asked Haselhorst if McClelland owed him an explanation, which set off a tense exchange between the two.
Case asked Haselhorst the same question twice before he responded by saying, “No. If that’s what you are fishing for.”
Haselhorst also said the suit is having an impact on development within Ellis County and that he knows of at least three developers that are interested in building in Ellis County but are waiting on the outcome of the lawsuit. But, when pressed by Case to name them, he refused.
During her testimony, Mary Alice Unrein revealed she and McClelland had had a private meeting along with Hays real estate agent Errol Wuertz at Unrein’s home to discuss the project.
Unrein testified that McClelland, “seemed OK” with the project.
McClelland said during her testimony she wanted to listen to the proposal and tried to give Urein advice but that she did not say that she would approve the project.
McClelland said she was not against all development when asked by Attorney Don Hoffman.
He then asked, “Just this one?”
“The way this was put in, yes,” McClelland answered.
Both McClelland and Haselhorst echoed their support of the county and city employees who worked and gave their input on the project.
But McClelland said she took into account advice from legal counsel, county officials and officials with the Trego Country Rural Water Board before making her decision. She said after talking with them and looking at the information provided she, “could still have my own (opinion).”
The county’s lawyer attempted to have the case dismissed about midway through Tuesday’s proceedings. Kevin Case argued that the plaintiff had failed to present enough evidence that shows McClelland acted “arbitrary, capricious and unreasonable.”
Judge Bruce Gatterman of the 24th Judicial District is overseeing the case and denied the motion, saying he believes there could be evidence for a prima facie case — “on its face,” there is sufficient evidence to try the case.
After the denial, the county called two more witnesses, including McClelland, before wrapping up its case.
The judge did not issue a ruling in the case, but instead requested that closing arguments be submitted to his office in Larned within 10 days of receiving the court transcript.