By JONATHAN ZWEYGARDT
Hays Post
A district court judge on Tuesday denied a motion to dismiss a lawsuit against the Ellis County Commission regarding the purposed Blue Sky Acres residential subdivision.
According to the lawsuit filed in December by the owner of the property Mary Alice Unrein, Ellis County Commissioner Marcy McClelland and the commission acted “unreasonably” by failing to approve the final plat for the subdivision south of Hays.
Unrein had purchased the land south of Hays to construct the addition, which would have six lots ranging from 2.5 to 3 acres. The final plat was approved in April 2016 by the Hays Area Planning Commission and sent to the county commission for its approval.
On Nov. 7, the commission failed to take action on the measure after it failed to receive a second. Commissioner Barb Wasinger recused herself from the decision because of a conflict of interest. Then, on Nov. 21, the commission voted 1-1, rejecting the final plat. McClelland voted against the measure with Commissioner Dean Haselhorst voting in favor.
The suit also alleges Unrein completed all of the necessary requirements for the development to be approved and that the court should force McClelland and the commission to approve the plat and dedication of the Blue Sky Acres Addition and that the action does not “involve the exercise of unlimited discretion.”
Unrein’s Attorney, Don Hoffman, said at Tuesday’s hearing that Unrein completed everything required of her and that the court can force the commission to approve the plat.
David Cascio, the attorney representing Ellis County, argued the suit should be dismissed because McClelland’s decision was discretionary.
McClelland had brought up concerns about the lack of water in the area and the potential for groundwater pollution due to wastewater runoff.
At Tuesday’s hearing in Ellis County, Chief Judge of the 24th Judicial District Bruce Gatterman denied the motion to dismiss the case and cited state statute that says a person can pursue action against a governing board to have the decision overturned.
The two parties will continue with case management before another hearing date is set.