Contentious proposal to build apartments, townhomes in JoCo revived after court ruling

A proposal to build hundreds of apartments and more than 40 townhomes in Shawnee may come back to the dais after the Kansas Supreme Court ruled in favor of the developer – bringing an almost six-year saga to a close.

“We reverse the lower courts and remand the case to the district court with instructions to rule in favor of Austin Properties and return the application to the City for action consistent with this opinion,” the court ruling said.

In December 2019, Johnson County development company Austin Properties proposed a $50 million housing development on 29 acres in western Shawnee off Woodsonia Drive and 53rd Street near Kansas State Highway 7 to build 42 townhomes and 380 apartments.

The Shawnee Planning Commission recommended City Council approval, but neighboring property owners pushed back against the project and filed a protest petition that required a three-fourths, supermajority vote by City Council to approve the project.

The Council voted 4-4 against rezoning the area, falling short of the necessary support, and the city told Austin Properties that its application was denied. The developer sued the city shortly after its decision and the case worked its way through the district court and Court of Appeals.

In its arguments, Austin Properties claimed that the City Council erred when it denied the application. After it failed to approve the zoning application with a three-fourths vote, the Council did not vote to deny or to return the application to the planning commission “with an explanation of why the application was not approved or denied,” according to the ruling.

The Supreme Court agreed.

“The City must still follow those procedures even in the face of a petition,” the ruling stated. “A valid protest petition simply increases the percentage of approval votes needed to approve the protested change.”

The housing development proposal comes back to the table amid affordable housing needs and housing density debates in Johnson County.

The number of attainable homes ($300,000 or less) has dropped from almost 100,000 homes in 2018 to less than 25,000 last year. While Johnson County has grown over the years, debates fueled by how much housing to build and where to build it to keep up with the influx have gripped several communities — including Shawnee.

During the City Council’s vote on the project in 2019, residents came forward with concerns about density, neighborhood character, traffic, and school overcrowding, according to previous Star reporting.

This time around, new eyes will be on the project after the Shawnee City Council experienced significant turnover since its December 2019 vote. Only two members – Mayor Mickey Sandifer and Councilmember Mike Kemmling — were on the Council at the time.

Councilmember Kurt Knappen, who represents the area the project would be built, told The Star in an email that he has no comment as it’s an ongoing legal matter, but he added that he assumes this proposal will come back to the Planning Commission and City Council for consideration.

“I would not want to pre-judge a proposal that I might eventually need to vote on,” Knappen said in the email.

Angela Stiens, who also represents a portion of the project’s area, was not immediately available for comment on Friday.

Shawnee spokesperson Doug Donahoo told the Star that “there are still some procedural elements that have to take place within this ruling” and that the city would not comment further at this time.

Melissa Sherman, an Overland Park-based attorney at Spencer Fane who represented Austin Properties, told The Star in an email that her clients, Greg Prieb with Prieb Homes, are “thrilled with the Supreme Court’s decision.”

“It certainly has been a long process, but Mr. Prieb was intent to pursue a just result and he is grateful that the court agreed with our position,” Sherman said in the email. “The matter will now return to the city for further review, and Mr. Prieb looks forward to working with the city to advance Austin Properties’ plan and development.”