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OP Annexation Fight Heads to Court

In the fall of 2007 the City of Overland Park sought the permission of Johnson County Board of County Commissioners to involuntarily annex approximately 15 square miles of unincorporated Johnson County (an area about the size of Leawood). The Commissioners granted a partial annexation of about 56% of that area in February of 2008.

After months of wrangling, those who opposed Overland Park’s legally flawed annexation of southern Johnson County sued Overland Park and Johnson County and filed an appeal to overturn the annexation. Nearly two years after their fight began, Johnson County District Court heard the case in October 2009.

The lawsuit was filed on behalf of the hundreds of residents who were annexed against their wills. Recently the plaintiffs met with area residents to update them on annexation related issues. After hearing about the tax dollars being spent by the city and county on annexation related issues, everyone in the room was crying foul. Many said taxpayers in the city and county should hear what is happening with their hard-earned dollars. They were also appalled at how difficult it is to get elected officials to understand the need to let residents have a vote.

Here are some examples of tax dollars and time wasted by the city and county to fight citizens who made it clear that they did not want to be annexed into Overland Park:

As of February 2008, Overland Park had already paid outside legal consultants nearly $400,000 for their work on the annexation issue.
In addition, the city’s legal staff spent a substantial amount of time and money working on the land grab that would override the will of the landowners in the area.
City staff generated more than 90,000 pages of documents to support the unpopular annexation.
The County also spent huge amounts of tax dollars reviewing and processing over 3,000 pages of documents on the record.

This is all in direct contradiction to a 2001 document signed by city officials (including Overland Park Mayor Carl Gerlach) and county citizens stating “It is our belief that voluntary annexation should be preferred over involuntary annexation. We wish to emphasize that involuntary annexation by a city will typically be expensive, extremely controversial and, in all likelihood, difficult to achieve in southern Johnson County.”

Do taxpayers understand how many of their tax dollars are being spent to fight lawsuits due to the city’s and county’s blatant disregard for state laws? Do they understand how much the city and county are spending in an effort to get citizens within city limits that don’t want to be a part of the city?

Significant Issues:

The lawsuit’s Discovery phase has turned up some interesting information on serious and substantial violations made by the city and county in the annexation process:

The Moving Target. Kansas law requires an annexing city to present a plan for the extension of public services which is to be filed at the same time as the petition for annexation. The BOCC is required to hold a hearing on that plan. Here, the plan changed numerous times after it was filed, both before and after the hearing. We have argued that such changes are not permitted, particularly without holding further public hearings. Significantly, the County takes the position that the “information presented by the City was not intended to ‘change’ the service extension plan.” Even the City disagrees with this, admitting that “it is true that the City modified its service plan during the course of the approval process.”
Failure to Follow Quasi-Judicial Procedures. Annexation proceedings are quasi-judicial in nature. The proceedings must be conducted in the fashion of a trial, and the citizens have due process rights which must be respected, including the right to know all the evidence and to submit contrary evidence. Here, however, the Board of County Commissioners, through its representatives, met privately with representatives of Overland Park and Fire District No. 2 to engineer a fire services agreement without the public having any knowledge of the Board’s wishes or any opportunity to be heard. Informally, counsel for the City and County have suggested that the City did not know how the BOCC would vote. City Attorney Robert Watson, however, authored an e-mail concerning these private negotiations, and complained about “the BOCC insistence” on certain provisions. Clearly the City viewed these discussions as coming straight from the County, and thus had an understanding of what the County really wanted which was kept outside the public awareness.
The Belated New Contract. The BOCC relied on a fire services proposal from the City that was presented late in the day the record closed. It was not even considered by the Fire District until days after the record closed, and was only approved with changes. This is too late to be properly before the BOCC. Again, the BOCC is to act like a court, yet it relied on information the public could not conceivably have known or commented upon.
Contractually Unlawful. The fire services contract is a key component of the annexation. However, the agreement still in effect on the date the record closed stated that the contract would be inoperative if the BOCC granted a partial annexation, yet the Commissioners granted a partial annexation anyway.
Insufficient Evidence. Partial annexations are legal, but the City’s proposal contained none of the legally-required financial information necessary for the Board of County Commissioners to grant a partial annexation. The law clearly states that the costs of a proposed annexation to the City and the area to be annexed are to be disclosed, yet no one bothered to do this calculation for a partial annexation.
BOCC Lost Jurisdiction: According to Kansas law, the BOCC must rule on the annexation petition within 7 days of the public hearing unless it is continued. The JOCO BOCC did not continue the public hearing, yet ruled move than 3 months after the hearing.

Why it matters:

In addition to violations of basic individual rights being violated and County and City elected officials blatantly ignoring state statutes, landowners have concerns with the involuntary land grab. Some examples of harm (manifest injury) to citizens as a result of the annexation were given by Chairman Surbaugh of the BOCC when making the ruling in favor of annexation. Two of her quotes are:

“I do know that our snow plowing and our road maintenance probably is above any city, not just Overland Park.”
"We probably have not solved everything for every one of you whose lifestyle will change because of this.”

So, why should someone have to change their lifestyle and have lower level of services jus because a city wants to increase their tax base? This is on top of additional taxes and increased liability exposure on homeowners’ land.

The bottom line is that the Johnson County Board of County Commissioners and Overland Park broke numerous rules to push this unwelcome and unlawful annexation through. In court, those who never wanted to be annexed and were never allowed a voice in the process get a chance to expose the back-door dealings and flagrant disregard for the law exhibited by the city and county in this unlawful annexation.

Status:

Johnson County District Court held a hearing on the case to appeal Overland Park's annexation on Oct. 23, 2009. The judge's ruling was to be given by Dec. 25, 2009, but a ruling has not yet been made.