Board seeks bike trails along Big Ditch, but attorney points out legal hurdles

A Wichita city board decided to move forward Monday with trying to put bike paths along the Big Ditch, despite an attorney’s advice that it would be almost impossible to do it legally.

The Bicycle and Pedestrian Advisory Board is hoping to run trails on top of the levees of the Wichita-Valley Center Floodway, the centerpiece of the flood control system through west Wichita.

“I’ve known people who have ridden on top of that dike, and it wouldn’t take very much to make that a path,” said board member Jerry Jones.

On Monday, the board appointed two of its members and the city engineer to explore possibilities for a Big Ditch bike path.

The Big Ditch flood-control project runs from Valley Center to Derby, and bike board members say it could provide a long and scenic off-street riding corridor.

But Assistant City Attorney Jeff Vanzandt said there are high legal hurdles in the way.

The biggest problem, he said, is that when Wichita and Sedgwick County condemned the property for the ditch in 1950, they did it as a flood-control easement. That means the original property owner still owns it.

Under state law, adding a recreational use such as a bike path would “overburden” that easement, meaning it would be used for a purpose not originally intended when it was taken from its owner.

And state law doesn’t allow that, Vanzandt said.

He said the city would need to get permission from whoever owned the land when it was taken for the Big Ditch.

There’s no clear record of who may have inherited the property rights from the original owner or owners, who are almost certainly dead, he said.

If the city just went ahead and built a path, “we would technically be trespassing,” Vanzandt said.

The city would also need to get permission from the current property owners adjacent to the Big Ditch, because its use for anything other than flood control could affect their property rights.

A bike path would also need approval from the City Council, the Sedgwick County Commission and the Army Corps of Engineers.

“I didn’t want to come in here and just be Danny Downer here and say ‘Oh, you can’t do it,’ ” Vanzandt said. But he also said, “It’s not my job to say just close your eyes and shoot.”

Building a Big Ditch bike path would be difficult, bordering on impossible, he said.

“It’s going to be a little like that movie ‘Dumb and Dumber,’ where he said ‘do I have a chance to date you’ and she said ‘one in a million,’ so he said ‘so you’re telling me there’s a chance.’ ”

Board members, however, said other cities have gotten around similar legal issues and they think they can, too.

Board member Melany Barnes said the board should “give this a shot,” although she conceded “I probably won’t live long enough to see it.”

Another member, Tom Lasater, proposed taking it to the Legislature. “There might be a legislative solution to expand the easement so it’s not overburdened,” he said.

The solution could be a bill to allow recreational use of property taken for flood control more than 30 years ago, he said.

He said that might get support at the Capitol, because “it’s not changing it from a floodway to a street, it’s just adding a path.”

The board appointed Jones and Lasater to work on the project, and City Engineer Gary Janzen, who was at the meeting, offered to help them work with the Corps of Engineers and other agencies on the technical aspects of the proposal.

This story was originally published March 14, 2016 at 9:31 PM with the headline "Board seeks bike trails along Big Ditch, but attorney points out legal hurdles."