Tale of two cities: Olathe, Spring Hill annexation pact silences ‘will of voters’ in future
By Tim Carpenter,
TOPEKA — Attorneys representing the city of Olathe argued the Kansas Supreme Court’s derailment of an annexation pact between Spring Hill and Olathe could jeopardize similar alliances among municipalities guiding development throughout Kansas.
On the contrary, said lawyers for the city of Spring Hill, the type of open-ended annexation truce adopted in 2006 by the neighboring cities in Johnson County shouldn’t be construed to unfairly bind elected officials of those cities. The Spring Hill argument was that voters shouldn’t be perpetually disenfranchised by policy decisions of city council members who served more than 15 years ago.
Justices of the state Supreme Court sided with Spring Hill, which had moved in 2021 to abandon the annexation agreement. The justices said fundamentals of democracy and the laws of Kansas forbid an elected governing body from using its legislative power to constrain policy options of subsequent city councils.
“To hold otherwise would invite elected governing bodies to make their policies permanent, defeating the ability of future voters to set their own courses, leading to archaic legislation, stagnation and an inability to respond to changed circumstances,” said Justice Eric Rosen, who wrote the opinion.
Rosen said if Olathe were to prevail in the case, “the effect is to silence the will of voters in the future.”
In the opinion issued July 1, the state Supreme Court affirmed a previous ruling by a Johnson County District Court judge to dismiss Olathe’s lawsuit seeking to enforce the annexation agreement with Spring Hill. The justices also agreed with the district court that Olathe wasn’t entitled to financial relief because Spring Hill unilaterally ended the agreement.
In 2006, Spring Hill and Olathe entered a written agreement establishing artificial boundaries for annexing unincorporated land adjacent to the two cities. Olathe wouldn’t annex south of the boundary line, while Spring Hill wouldn’t venture north of that line. The common objective was to avoid annexation or zoning disputes and duplication of city planning work while providing property owners a sense of evolving development activity.
Spring Hill notified Olathe in March 2021 of intent to annex land north of the boundary for a development with Carvana, a car seller that has been accused of improperly transferring titles on vehicles sold and of misusing out-of-state temporary registration permits.
Olathe filed a petition in district court to stop Spring Hill from annexing land north of the line. Olathe’s lawyers argued breaking the city-to-city agreement would promote uncertainty for landowners and city planners as well as open the county up to chaotic land grabs by municipalities.
The June 2021 ruling in district court in favor of Spring Hill led its city council to immediately move ahead with annexation of land for the commercial project. Olathe appealed the district court ruling to the Kansas Court of Appeals, but the case was transferred in September to the state Supreme Court.
Anthony Rupp, a Foulston Siefkin firm attorney representing Olathe, argued before the Supreme Court in May that state law enabled cities to contract with each other for government services, activities and undertakings. He said that commonly involved consideration of locations for road, water and sewer infrastructure, but also included agreements on future growth areas of the cities.
Justice Caleb Stegall said he was concerned about setting a precedent in which a city council could establish a policy position and essentially forbid the next city council from adopting a different perspective on the issue.
“If it does, doesn’t that undermine principles of democratic rule?” Stegall said.
Rupp said a Supreme Court decision allowing Spring Hill to annex land outside the agreed-upon boundary would essentially declare “to cities that every interlocal agreement is at risk.” Such a position would be inconsistent with intent of the Kansas Legislature, he said.
“There is no question that the Spring Hill project breaches the annexation contract,” Rupp said. “Nothing could be more of a government undertaking than long term planning for orderly growth and development.”
Curtis Tideman, of the Lathrop GPM firm representing Spring Hill, said Olathe’s bid to block the annexation was properly rejected because the current city council in Spring Hill couldn’t be held to the 2006 agreement. Only one member of the 2006 council remained in office, he said.
“There is no question that by trying to enforce this agreement on the current city council that it is attempting to bind future city councils,” Tideman said.
In the Supreme Court decision, the justices said elected government bodies in Kansas couldn’t use legislative power to box in future governing bodies on policy decisions. An elected governing body, the high court said, may use its administrative or proprietary authority to enter into enforceable contracts to pay a specified sum over a specified time.
The opinion by the Supreme Court said legislative powers were related to affairs of political jurisdiction and the public welfare at large. These powers, the court said, involved policymaking and couldn’t be contracted away. The Olathe and Spring Hill agreement “cannot be considered a contract with a binding effect on future elected councils,” the decision said.
“This is a rule that extends across the various jurisdictions in this country and has long been recognized in Kansas,” Justice Rosen wrote. “As early as 1872, this court has held that ‘in deciding what past laws shall stand, and what be repealed, each legislature is free and absolute’ and that ‘one legislature cannot abridge the powers of a succeeding legislature.'”
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