A rural Ark City couple ? who went to court in 2007 to challenge Cowley County’s property clean up practices ? will have their case argued in front of the Kansas Supreme Court next month.
Attorneys for Victor and Nancy Barnes and the county commission are set to make oral arguments in the case Dec. 6, according to the docket for the state’s high court. The case was appealed to the high court after judges at the district court and appellate level ruled in the county’s favor.
Winfield attorney Chris Rogers will represent the Barneses and Ed L. Keeley and William A. Taylor will represent the county.
The case dates to 2006 when the county sent a clean up crew onto 14 acres of property the Barneses own near U.S. 77 and 252nd Rd. County workers were sent to the property without consent from the landowners, or a court order, and removed building materials, cut down trees and performed other work.
The Barneses were billed $11,740, which they eventually paid under protest. In 2007, the couple filed suit against county commissioners in Cowley County district court claiming commissioners did not have the authority to enforce such clean up rules.
"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," Rogers argued in court documents filed three years ago. "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."
Rogers has argued that while cities regularly clean up or condemn properties, and bill residents for it, counties are not afforded the same powers.
—————————————
It was Jan. 2006, when the Barneses received a clean up notice while living in Pennsylvania on mission with the Assembly of God Church in Ark City.
Prior to being deployed to Iraq, the Barneses’ son used the property as a paintball course that included natural and man-made obstacles, including large round hay bales and stacked tires.
The couple said they attempted to work with county officials, and in April 2006 arranged to have the property cleaned up by hiring a contractor. The county had established a 21-day deadline for the Barneses to have the work completed.
Ranger Tree Service worked at the property and billed the couple about $3,700.
Rain and health issues prevented the work from being completed in its entirety and in May the county told the tree service not to finish the project. County workers were sent to the property and did the remaining work for which the couple was billed.
The couple is seeking repayment of the money they paid to the county for clean up charges.
