Politics trumping law?
City attorney Bill Raymond told commissioners Tuesday night that their decision to deny the building of a fence came down to politics, not legality.
Commissioners spent two hours listening to renters and home owners along the south side of Arbor Heights Drive explain why they supported or opposed a petition to build a uniform fence along the back side of their properties abutting Kansas Highway 18 in Manhattan.
Raymond said even though one property owner, Neal Strathman, changed his mind after he signed the petition supporting it, the petition was legal and binding in court.
However, because Strathman changed his mind and decided to oppose the petition after the fact, commissioners were left with a problem because Strathman became a “swing vote” among 13 signees.
Support for the fence had received a 7-6 endorsement from 13 participants, but Strathman deciding to go the other way eliminated a majority — at least in the commission’s view of things.
Strathman said in a letter to the commission that he changed his mind because he thought more people supported the fence, but after he found out there were only six others supporting the idea, he changed his mind.
Raymond said because Strathman did not change his vote within the seven days after the petition was filed with the city, the petition was binding as submitted.
Raymond gave commissioners an out, however, noting that the petition did not specify the exact height and cost of the fence. He explained that if the commission denied the petition on that basis, the matter would go back to the residents — and they would have to return with another more specific petition.
In other words, the commission could get out from under the debate politically, despite the fact that they had a legal, approved petition on their hands.
How did this mess come about?
After the petition was signed originally, Mike Walter — president of the homeowners association — went to the city and asked for help in getting Kansas Department of Transportation to help foot the bill for building a fence that would increase safety and privacy, while alleviating noise from the highway.
City officials said KDOT and the city agreed to pay one-third of the cost of building the “minimum” standard fence.
That standard included a 6-foot wooden fence and planting evergreen trees along the right-of-way owned by KDOT, for a cost of $66,000.
However, in looking at cost as opposed to maintenance, Walter said that 12 out of 13 home owners agreed in a preliminary survey that an 8-foot tall Simtech fence without the trees would give the homeowners more bang for their buck.
The Simtech fence took up less space, giving them more room on their properties.
There was also no maintenance required for the life of the fence, estimated at 25 years. The wooden fence and trees required maintenance every year or two, and had a life expectancy of 15 years.
Walter said when calculating the cost of installation, maintenance, life of the fence and other factors, it was more cost effective to go with the Simtech fence—which is made out of artificial material that looks like limestone.
Several residents, however, said that problem was not the design or the added benefit, but the overall cost, since the Simtech fence was estimated at $141,000.
Walter said that KDOT and the city would cover $44,000 of the bill, leaving the rest to be covered by residents.
If the residents went with KDOT’s suggestion of a wooden fence and trees, it would cost home owners $22,000 up front, as opposed to $97,000 for a Simtech structure.
The city offered to spread that out over a 10-year special assessment to the properties — about $50 per month — or each resident could pay a lump sum, about $7,400 per property.
Suddenly, support for the fence wavered a bit, eventually leading to the split opinions on the petition, Strathman’s late change of heart and a bit of a headache for the city commission.
During the back-and-forth discussion which seemed destined to last until daylight, KDOT engineer Mark Karolevitz told commissioners that the agency was willing to enter into individual agreements with property owners, but would not help financially. The city also would not be required to contribute to any individual projects.
Commissioner Karen McCulloh cautioned residents about getting involved with individual agreements. She said residents should find out the cost of hiring a lawyer to negotiate a contract with KDOT before making a decision to build individual fences.
Commissioner Wynn Butler said security was also a factor — not only for the residents, but also for the motorists.
He said KDOT should foot part of the bill, and that a uniform fence would look better, too.
If the city were to negotiate a contract with KDOT, the residents would be charged a 5 percent fee — but the petition requested that fee be waived.
City manager Ron Fehr asked commissioners to give the residents guidance on whether they would waive the fee if that would provide enough votes to move forward with a fence in a new petition.
Commissioners Butler, Rich Jankovich and mayor John Matta said they would support waiving the fee if it drove the cost down enough for the majority to support it.
However, commissioner Usha Reddi said she would not support it unless more than a simple majority of seven wanted the fence built.
Commissioners denied the petition 5-0 because they agreed that it was not clear what the residents wanted or were willing to pay.
However, they made it clear they were willing to support using tax dollars to help build a uniform fence for the safety and security of residents and motorists.
At the end of it all, the entire matter had been tossed back to the residents — despite a marathon debate by the commission that had begun with a legal, binding petition for a fence.
As Raymond pointed out, politics carried the day.