Can you vote on saving Century II, former library? Kansas appeals court hears arguments
Will Wichitans ever get a vote on saving Century II, the former Central Library and other historic city buildings?
That question will be decided by the Kansas Court of Appeals and judges there peppered both sides on Wednesday with hard questions about whether to allow a citizen initiative signed by 17,000 Wichita voters to proceed to a vote.
If approved by voters, the initiative would require a public vote to tear down, sell or lease any prominent city-owned, historically significant buildings.
The initiative came about in 2020 as the city moved toward razing Century II and the former library to make way for the Riverfront Legacy Master Plan, a proposed $1.5 billion plan to remake the East Bank of the Arkansas River with new convention and performing arts centers and a number of private businesses.
Although it gained the necessary signatures, the city sued to stop it and District Judge Eric Commer ruled it couldn’t go to voters.
Attorney Austin Parker, representing Save Century II leaders Celeste Racette and Karl Peterjohn on appeal, argued that despite some technical issues, the initiative was substantially compliant with the spirit of the law and deserves a spot on the ballot at the next city election.
“Did they screw it up a little bit? Yeah,” he said. “It’s not perfect . . . They didn’t put the right heading at the top. If they would have known, they would have put the right heading at the top. Right?”
But he said that’s the nature of citizen-written ordinances and it wouldn’t be any different than when local laws were passed and hand-written by local mayors in ordinance books before the use of city attorneys became common.
“We have an action by citizens,” he said. “They’re not attorneys. They’re drafting an ordinance. When I draft an ordinance it’s five pages long. They’re utilizing language that they commonly understand. “
Parker got into a pitched argument with one of the judges, Sarah Warner, as he argued the court should apply a precedent from a Lawrence case.
“It strikes me that the ordinance that was being challenged in Lawrence . . . was an ordinance that had been adopted by the city government, so in other words it was a duly effective ordinance that was then being challenged,” she said. “Here we have a question as to whether this proposal is a valid proposal or not. So it’s a different analysis from our starting point.”
Parker responded: “I disagree with that 100% your honor.” Although the measure is being brought by citizen petition rather than City Council action, “It’s still an ordinance like anything else.”
Wagner replied: “We don’t have an adopted ordinance yet. We have a question of whether it can even proceed to that point.”
Parker: “Yes your honor, but it is still an ordinance. I’ve probably drafted over 100 ordinances in my life. Every ordinance that I draft is not law until it’s adopted by the governing body. “
Wagner: “I think it’s probably fair to say that we disagree on this point.”
The crux of the case is whether the citizen-proposed initiative is legislative or administrative.
Legislative ordinances set broad policies, while administrative ordinances are narrowly focused on a specific topic requiring specialized training and expertise in city government.
Legislative initiatives are allowed by state law, while administrative initiatives are prohibited by it.
All involved agree that an ordinance that only barred tearing down the Century II and/or the library building would be administrative.
The authors of the Wichita initiative sought to get around that by broadening it to mandate a public vote before removing, selling or leasing any prominent city building of historical significance.
Assistant City Attorney Sharon Dickgrafe argued that the initiative can’t go forward because of the complications of handling city buildings.
“Ben Nelson from our Public Works Department testified regarding financial issues, life use of the buildings, cash-basis law, budget law,the factors that are analyzed by our staff and the useful life of a building, how would that be used, what kind of financing is available,” she said. “Those are all complex, administrative type decisions.”
Judge G. Gordon Atcheson broke in and questioned Dickgrafe on that.
“If you’re looking at the fiscal implications of some decision and claiming that requires expertise, isn’t that every decision?” he said. “Anything a city does has fiscal implications.”
Replied Dickgrafe: “I don’t think everything the city does has fiscal implications . . . In this case the issue is do we rehabilitate a building? How can that building be used and what are the economics of that building? And I think you have to look at each particular building through this analysis.”
Dickgrafe ran into some trouble when she argued that the initiative was too vague and could apply to 540 city buildings.
Wagner pressed her on that, implying that the vagueness argument seemed to undercut the argument that the initiative was unacceptably administrative.
“Isn’t that the nature of a broad policy statement, that it incorporates a lot of items that individually, administratively you might handle, but when you make a broad policy statement, then it’s going to encompass a lot more? Wagner asked.
Replied Dickgrafe: “Yes, but this isn’t a policy statement, it’s an ordinance. And the city cannot alter this ordinance, we cannot redefine this ordinance, which I think then puts you into the analysis of is this an administrative ordinance, and I think the answer is clearly, yes it is.”
This story was originally published March 9, 2022 at 3:11 PM.
