An Arkansas City couple is taking the Cowley County Commission to court in a dispute?over whether the county had the right to send county employees onto?their land without their permission and bill them over $11,000 for the time spent cleaning up?property the couple say they were already cleaning.
Victor and Nancy Barnes own about 14 acres of land one-half mile west of U.S. 77 and 252nd Road. The property is part of the unincorporated area in Cowley County and for many years much of the land was farmed. It has trees growing upon it and much of it is in meadow.
The couple?lived in Pennsylvania between September 2005 and September 2006 while on a mission with the? Assembly of God Church in Arkansas City to rehabilitate an inter-city church building.
Before his deployment to Iraq with the Kansas National Guard, the Barnes’ son used the property as a paintball course, which contained natural and man-made obstacles, including large round hay bales and stacked tires.
The Barnes received a “notice of complaint” in Philadelphia on or after Jan 6, 2006 but claim the notice did not give them enough time to arrange to attend a Jan. 17, 2006 meeting with the county commission that was announced in the notice.
Victor Barnes claims he did talk with the county’s environmental technician, Jim McGuire, before the Jan. 17 meeting and told him he would be unable to attend the meeting, but would be back in Kansas in late March or early April. Sometime after Feb. 1, 2006, the Barnes received an order reflecting the Jan. 17 proceedings before the commission and contacted McGuire to say they would hire people to comply with the concerns when they returned in early April, according to court documents.
Some time after March 20, 2006, while still in Philadelphia, the Barnes received a copy of a letter from County Counselor Bill Taylor which gave the couple 21 days from the date of the letter – March 14 – to comply with the order.
The Barnes claim that on April 4 they hired Ranger Tree Service to do the required work on the property because they were returning to Philadelphia and could not do it themselves. Two outbuildings were razed and burned, a small house was razed, the basement filled in,?bricks and salvageable?building materials were stacked and inoperable vehicles removed. The tree service provided 58 hours of labor and services which cost $3,700, according to court documents.
Rain and ill health interrupted the tree service from completing the work, but?the only work remaining was the removal of tires, a wall around the house foundation and a second well that had been discovered and needed to be filled in. No buildings remained on the property and non-combustible and salvageable building materials were piled for disposition, the documents state.
In late May, the tree service was told by Taylor not to complete the work that he had contracted with the Barnes to complete. Instead, county workers were sent onto the property without permission or court approval and removed building materials, cut down trees and performed other work, charging the Barnes $11,740.75.
The invoice was placed on the Barnes’ tax statement and charged as an assessment, tax or charge, and instituted a lien against the property.
The Barnes argue that counties do not have the same self-help powers as cities. They are challenging the county resolution commissioners used as a tool to deal with the Barnes and claim it is too broad, unconstitutionally vague and mistreats due process.
“It is not defendant’s job, nor its prerogative to beautify lands in the county, nor to substitute its judgment for the way a parcel should appear,” court documents state. “It is only to protect the health, safety and welfare of the residents. In its entry on plaintiff’s land, defendant violated plaintiff’s due process guarantees. The action of defendant is at best arbitrary and capricious,” attorney Chris Rogers argues in his legal briefs.
A statement of facts with other court documents state that a?petition was submitted to the county in August 2005 by five county residents alleging that uninhabitable structures and a nuisance existed on the Barnes property. The following December, county administrative staff visited the area and took photographs. A notice of complaint was sent to the Barnes the same month by certified mail which advised a preliminary investigation revealed uninhabitable structures and items constituting? a nuisance on their land. They were notified of the Jan. 17, 2006 hearing over the issue.
Following the hearing, an order was issued giving the Barnes 30 days to get started and advising them that county personnel or private contractors could be authorized by the?county to do the work. A letter was sent in March again warning the Barnes county employees would do the work if they didn’t. County workers began working May 30. The Barnes were sent an invoice for $11,704.75, have not paid the bill,? and it is now considered a lien on their property.
Nearly 50 pieces of property were?listed on a master list of structures unfit for human use or land considered a nuisance that the commission has been working with.
