Judge weighs giving voters more power as Wichita OKs non-binding Century II election
Wichita voters will get a chance to vote on whether to demolish the big blue building at the Century II Convention and Performing Arts Center, the City Council decided Tuesday.
But unlike a citizens’ initiative currently being challenged by the city government in court, the vote would be non-binding.
It could also include as-yet-undetermined details such as how to finance either renovating Century II or replacing it in a plan to tear it down and build new facilities.
When the vote would be held is also an open question, but it would have to be a special election and it is estimated it would cost $100,000, city officials said.
The advisory vote would only cover the Century II’s blue-roofed performing-arts roundhouse, recently added to the state’s register of historically significant places.
The vote “is not intended to include the Convention Hall (Bob Brown Exposition Hall) or the Expo Hall promenade level to the Hyatt Hotel,” the resolution says.
The advisory election is the city’s answer to a six-month petition drive that has collected more than 17,000 signatures to force a vote before tearing down Century II and/or the adjacent building that formerly housed the Central Library.
The signatures haven’t been verified yet, but court hearings are underway on a city-initiated lawsuit attempting to keep it from being put in front of voters.
The city’s proposal for an advisory election drew little discussion during Tuesday’s meeting, but it was supported by a spokesman for the Riverfront Legacy Master Plan Coalition.
That group envisions tearing down Century II and the library and using the land for part of a $1 billion-plus redevelopment with a new convention center, a new performing arts center, park space and various private business developments.
“We fully support a vote on the library and Century II,” said Darryl Kelly, speaking for the Riverfront coalition.
But it’s not unconditional support.
“If we have a vote on the future of Century II and the library, we believe that the vote needs to be accompanied by a design and funding plan that makes sense for our future,” Kelly added. “And the plan needs to take into account the health and economic realities we find ourselves in.”
Mayor Brandon Whipple assured Kelly that the resolution requiring a vote would not limit the questions that the council could decide to put before voters.
Celeste Racette, the main leader in the fight to save the building, missed Tuesday’s council meeting because she was at court fighting the city’s lawsuit seeking to quash the initiative, which would force a binding vote before tearing down or otherwise “adversely affecting” a city-owned building.
Racette said for an advisory vote to have any effect at all, the City Council would have to “respect the will of voters.”
“But the City Council members don’t, as we’ve seen with so many of their decisions,” she said. “They’ve already said in court that they don’t think voters are qualified to decide.
“If the advisory vote is non-binding, what difference does it make? The city can still tear down the building and destroy it.”
Court decision expected this week
While the City Council approved an advisory vote at City Hall, across the street at the Sedgwick County Courthouse City Attorney Sharon Dickgrafe asked a judge to throw out a petition with 17,265 signatures aimed at letting voters decide whether to call for a public vote before tearing down any prominent city-owned building with architectural or historical significance.
John Todd, a local activist and member of the Save Century II group, said the City Council is just trying to save face at this point and fundamentally missed the mark with its Tuesday vote, which he called “insulting.”
“If the City Council wanted to let voters decide, all they had to do was let the petition go on the November ballot,” he said. “Now, they’ve dragged citizens into court to defend their right to petition their government and their right to vote. What is wrong with this picture?”
After a two-day court hearing over the petition, Sedgwick County District Court Judge Eric Commer said he will issue a written decision this week on whether the petition is valid. He said he preferred to write-out his judgment in this case because it is likely to face an appeal no matter which way he rules.
One of the city’s main contentions in its lawsuit is that the ordinance is “administrative” in nature and deals with decisions that “require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city.”
State law prohibits enacting administrative ordinances through the initiative petition process.
But one of the city’s witnesses, interim assistant director for public works and utilities Ben Nelson, may have undercut that argument Monday under questioning by the Save Century II group’s lawyer Windell Snow.
“Do you believe that you are better equipped to make a determination whether or not a historical structure such as Century II should be torn down as opposed to the members of the community that signed that petition?” Snow asked.
“No,” Nelson said. “As somebody who works in building maintenance, construction and renovation, our task isn’t to determine what programming needs a community has as much as it is to facilitate the maintenance side. So, no, I would not say I am more qualified than the petitioners.”
Nelson agreed with the Century II supporters’ lawyer that the decision whether to tear down a historically or architecturally significant building is a cultural decision rather than a decision based on the city’s typical building assessments.
However he did say that the petition is vague and could delay city maintenance and increase costs of maintenance and renovation, bolstering one of the city’s arguments.
Part of Nelson’s job includes oversight of the city-owned buildings, including Century II and the library. He said the city has 541 buildings and about 40% are at least 40 years old.
“Without a definition of historic or architectural significance, it is impossible to determine how many of those 541 would be covered by this petition,” Nelson said.
“Calling for a vote every time we had something that could adversely affect any of our facilities would greatly extend the amount of time where we could do preventive or corrective maintenance, potentially, to a facility and that could result in buildings potentially being shut down to the public or city staff. It can also increase costs long term,” Nelson said.
When questioned directly by the judge on his knowledge of Century II, Nelson lacked answers and later conceded he doesn’t know much about the city’s historic buildings.
Commer: “Do you know who the (Century II) architect was?”
Nelson: “No.”
Commer: “Do you know why it’s called Century II?”
Nelson: “No, but I want to learn.”
Judge Commer later asked the same questions of Racette, a retired accountant who successfully applied to have Century II and the Central Library buildings added to the state’s historical register.
She quickly rattled off the history of Century II, its architects — Roy K. Varenhorst and John Hickman — and several other historic buildings owned by the city of Wichita.
As for the Century II name, Racette explained that the building was given that name to commemorate the city’s centennial.
“(The city) — it was facing its second century, so it was a celebration,” she said.
The primary arguments for replacing Century II have been knocks on the building’s condition and its functionality for conventions and performing arts.
Asked by Commer about Century II’s condition, Nelson said his department has not received any maintenance requests related to the use of the building for conventions and theatrical productions.
“None that we haven’t been able to meet in the past,” Nelson said.
Should citizens decide?
The petitioners’ lawyers argued that only a small fraction — around 10 — of the city’s buildings are historically or architecturally significant and any obstacles could be offset by state, federal and private grants and tax credits that are available for historic buildings.
In closing arguments Tuesday, Save Century II’s co-counsel Christopher Snow said the city failed to prove that voters aren’t qualified to decide when city-owned buildings stay or go.
“As the petition challenger, it is the city’s work to establish that this proposed ordinance is void,” Snow said. “And although they claim that the city has the sole expertise to make these types of determinations, I believe the record will reflect that the sole witness they brought in support of that argument, Mr. Ben Nelson, acknowledged during defendant’s examination yesterday he has no more expertise than the voters who signed this petition to determine whether or not a historical structure like Century II should be demolished.”
Dickgrafe, the city’s attorney, said the city has to make decisions in accordance with state law regarding bonding and other budget decisions that could be in conflict with a decision made by voters.
Judge Commer signaled that he found some merit in the city’s argument about binding decisions made by average citizens.
“We all know they can make decisions and interpret things like this because we have juries and they make decisions, and they’re just average citizens brought into the court room, seated in a jury box, and they make decisions, interpreting things that are said between the parties.”
But Commer said he sees a “striking difference here between the jury and the citizens in the city of Wichita.”
“If you took a building somewhere in the city of Wichita and brought a hundred people, walked them by it and asked them, ‘Is this historically important?’ I don’t think they would have a clue,” Commer said. “History isn’t one of those enjoyed subjects in high school.”
Continuing with the jury comparison, Commer said there could be an opportunity to educate voters before holding an election but campaigns typically aren’t as informative as the instructions, arguments and evidence considered by a jury.
After a campaign, “I just don’t see the electorate being much better educated, certainly not to the caliber of the people who have sat in my jury box throughout a trial,” Commer said.
Save Century II’s lawyer argued that that was beside the point because the petition doesn’t call for citizens to determine what’s historically or architecturally significant.
Under the proposed ordinance, that determination would be made by the city through the Historic Preservation Board, he argued.
Voters would only get to decide whether to allow the city to demolish or take some other adverse action on a building if it were considered architecturally or historically significant by the city’s board.
“I think it’s important to consider that the defense’s proposed ordinance does not tell the city of Wichita how to make the determination of whether or not something is historically or architecturally significant,” Snow said.
This story was originally published August 18, 2020 at 10:44 AM.
