After Wichita church case, lawmakers look at requiring notice for development neighbors

Some state lawmakers say they’re surprised and concerned that Wichita officials allowed a church to wrap a planned school-expansion project around an elderly couple’s home, and may introduce legislation requiring notice to surrounding property owners when such plans are proposed.

Rep. John Carmichael, D-Wichita, said he’s troubled by the process the Metropolitan Area Planning Department and city of Wichita used to approve a resubdivision of land – called “replatting” in planning jargon – that allows Holy Savior Catholic Church to build school parking lots on both sides of John and Cecial Yarbrough’s Wichita home.

He said he’s neutral on the flap between the church and the homeowners, but was disturbed the Yarbroughs weren’t informed when the plan moved through City Hall.

Carmichael said he plans to review city and state planning notice requirements and if necessary, introduce a bill to clarify that the state wants notices sent to all adjacent property owners who could suffer adverse impacts from a neighbor’s development plan.

The state platting law, Kansas Statute 12-512b, says it applies where there’s a planning commission and subdivision regulations “provide for the giving of adequate notice to all persons having property rights or interests affected by the platting or replatting.”

The Planning Department’s position is that the law only requires individual notice to property owners within the boundaries of an area being resubdivided, not the next-door neighbors.

Carmichael disagreed.

“Folks need to be notified if their property is adjacent to the development so they have the opportunity to be heard,” said Carmichael, who serves on the House Local Government Committee. “That’s just basic fairness.”

The chairman of that committee, Rep. Steve Huebert, R-Valley Center, served on his city’s planning board before he was elected to the Legislature and agreed with Carmichael that property owners adjacent to land undergoing replatting should get notice that it’s happening.

He said Wichita not doing that seems like a “pretty loose interpretation” of the state law.

If Carmichael or another legislator introduces a bill to clarify the statute, “I would definitely hold a hearing on it and see where it goes,” Huebert said.

A replatting approved by the City Council in January cleared the way for Holy Savior to begin construction of a new church and school on Chautauqua between North 13th and 14th Streets.

The church purchased every home on the 1400 block of Chautauqua, except the Yarbrough house and a corner-lot house facing away from the church onto 14th Street.

The church wants to buy the Yarbrough’s home and the Yarbroughs, who are both in their 70s and have disabling health problems, want to sell and move before construction begins. But they’ve been mutually unable so far to find a suitable replacement house in range of the $78,000 the church offered for the home.

The replatting plan passed through City Hall without a public hearing at either the Planning Commission or the City Council. The council, which was given an inaccurate map of the platting boundaries, approved it on the “consent agenda,” a list of items deemed so routine they are handled in a single vote at the weekly meeting.

As part of the plan, the city ceded half a block of Chautauqua to the church, again without any notice to the Yarbroughs whose access would be through a turnaround circle in front of their home.

Church leaders say they’re trying to develop a church-school campus that will elevate that part of the city, one of Wichita’s poorest.

Holy Savior wants to build a new church and school on Chautauqua and expand from about 145 students to about 325. About two-thirds of the students are non-Catholic children from the surrounding neighborhood, said the parish priest, the Rev. James Billinger.

Church leaders said in crafting their plan, they hired a consulting engineer and followed the development procedures they were told to follow by city officials.

Dale Miller, a planning manager who was promoted Friday to director of the Metropolitan Area Planning Department, said the state law didn’t require individual notice to the Yarbroughs of the replatting. Also, a city policy requiring neighbors get notice of street vacations doesn’t apply in cases where it’s part of a replat.

“The Planning Department followed the procedures we have, as we have for the last 20 years,” Miller said.

He said he did not have any comment on the prospect of state legislation changes.

Carmichael, a lawyer, said he plans to review the state law on replatting and determine whether he thinks the city’s interpretation on the notice provisions is legally valid. He also said he will research whether the no-notice-required interpretation is unique to Wichita or common statewide.

“Obviously, if the city of Wichita has misinterpreted the existing statute, there is a remedy in the courts for that,” he said. “If the problem is the statute is written with a loophole, we need to close that loophole.”

Rep. Gail Finney, D-Wichita, represents the neighborhood that includes the Holy Savior and Yarbrough properties. She said she will support Carmichael’s push to review the platting law and finds it “terrible” that a project can go through without notice to adjacent property owners who would be affected.

“If that were to happen to me, I’d be outraged,” she said. “I definitely don’t like it. That law needs a rewrite or something.”

Both Carmichael and Finney said they learned of the issue from an Oct. 11 story in The Eagle that detailed the property conflict between the church and the Yarbroughs.

Mayor Jeff Longwell said he thought the policy already was to give notice to surrounding property owners when development is proposed nearby. Current MAPD policy requires that for zoning changes, but not replatting, officials said.

Longwell said the city government should and probably will take a second look at that.

He said he’s a “big fan of property rights,” but there are tough cases when a developer’s right to build conflicts with neighbors’ rights to use their property in peace.

“I’m not sure we should give people veto power (over projects), but they should be able to make their case,” he said.

This story was originally published October 17, 2015 at 3:43 PM with the headline "After Wichita church case, lawmakers look at requiring notice for development neighbors."