Motion sets back zoning trial

Topeka Capital-Journal, The, Jul 24, 2008 by Tim Hrenchir

By Tim Hrenchir

THE CAPITAL-JOURNAL

A Topeka developer's lawsuit against the city won't go to trial as scheduled in September, but a Shawnee County district judge says he will try to ensure a jury hears the case before too long.

"I'll do all I can to get it in before the end of the year," Judge Larry Hendricks said Wednesday.

Hendricks presided over Wednesday's pretrial hearing for a suit in which court records show Gene Jani's Topeka-based Brainstorm Development Group LLC and Klani LLC are seeking $2,343,119 in damages from the city.

Jani contends the Topeka City Council twice failed to comply with rules set up by the Kansas Supreme Court that required the council to approve changes Jani sought in zoning for 6.55 acres he owns at 3420 S.W. Fairlawn Road. That court in the 1978 case of Golden v. city of Overland Park set out eight factors cities may consider to determine whether a zoning decision is reasonable.

The city council rejected rezonings sought by Jani in June 2007 and in February. Council members voted June 10 to approve a separate rezoning he sought for 4.3 acres on the property. But Jani said June 11 he wouldn't drop the suit because he had sustained "way too many damages."

Jani was accompanied and represented at Wednesday's hearing by his attorney, Bryan Smith. The city was represented by Gregory Lee, a private attorney working under contract. Both attorneys told Hendricks they expected a jury trial would last four or five days.

Lee indicated he plans to file a motion for summary judgment seeking the lawsuit's dismissal and maintaining it lacks enough merit to proceed. Hendricks consequently canceled the scheduled Sept. 2 trial date, saying he considered it unlikely the motion for summary judgment would be resolved before then.

Hendricks made tentative plans to set a new trial date during a motion hearing expected to take place next month on a date that hasn't been decided.

Hendricks plans during the hearing to consider requests Smith made for subpoenas to obtain some text messages and phone records of City Councilman John Alcala and to conduct another deposition of Alcala, whom Lee said was deposed for three hours last month. The city objects to the issuance of the subpoenas.

City officials -- including all nine council members -- have given depositions in the case after being subpoenaed by Smith. During depositions, witnesses give testimony under oath that is recorded and could be used later in court.

Lee encouraged Hendricks to schedule any jury trial to take place before December, when he said jurors usually do a poor job of concentrating after the first week of the month.

Tim Hrenchir can be reachedat (785) 295-1184or tim.hrenchir@cjonline.com.