Archive for Wednesday, November 9, 2005

Kansas’ high court takes suit on sexual predator

November 9, 2005

It will be the Kansas Supreme Court's decision whether a notorious sexual predator will be allowed to live in a group home in southern Leavenworth County.

Leavenworth County counselor David VanParys said the Supreme Court had taken the case from the Court of Appeals.

"In a ruling last week, in essence, the Whitsons had petitioned the court to remove the case from the Court of Appeals and take it directly to the Supreme Court," VanParys said last Wednesday. "We had the response that we didn't think it was appropriate, that we didn't feel it needed to go to the Supreme Court because it's a local issue."

However, VanParys said, the Supreme Court agreed to hear the case.

"They didn't give a reason why," VanParys said.

Leavenworth County Commis-sioner Dean Oroke said Monday that although this court case involved a sexual predator, there's more to it than that.

"It's really an important land-use case for any county in the state that has any zoning," Oroke said. "Because what it's saying is zoning doesn't apply."

In May, Rick and Linda Whitson, who live in Lawrence, purchased a home in southern Leavenworth County where they planned to house convicted sex offender LeRoy Hendricks.

Hendricks, who has a 50-year history of molesting children, has been widely quoted as saying the only way he would stop molesting children would be if he died.

In June, after Hendricks had completed part of a sexual predator treatment program at Larned State Hospital, the state Department of Social and Rehabilitation Services moved the wheelchair-bound 70-year-old sexual predator into the Whitson's property at 24130 Golden Road.

The house is about five miles west of Linwood, just south of Kansas Highway 32.

The Whitsons had planned to keep Hendricks, and possibly in the future, several other men like him, under 24-hour surveillance. The state was going to pay $278,000 to house and guard Hendricks for 15 months.

Leavenworth County commissioners were outraged that SRS had moved Hendricks into the county.

According to the county, the Whitsons had violated several zoning ordinances, including:

  • They were operating a commercial property in a residential neighborhood. Oroke said it was a commercial venture based on the fact that the state would pay to house and guard Hendricks.
  • They had indicated there would possibly be two or three more people like Hendricks living there, which would qualify the property as a group home, which would require a special-use permit, according to the county's zoning regulations.
  • SRS indicated the home had security locks on the doors, which would keep residents from leaving, in which case the home could be looked upon as being a detention facility.

On June 3, Leavenworth County officials gained a temporary restraining order that prevented Hendricks from living there or having the house used as a detention facility or nursing center.

Within days, Hendricks was moved from the house to the grounds of Osawatomie State Hospital in Osawatomie.

On July 19, Leavenworth County District Judge David King granted a temporary injunction, and in August, King granted a permanent injunction that prevented the house from being used as a treatment facility for violent sexual predators.

The Whitsons decided to appeal King's ruling.

And on Sept. 6, Gregory Lee, an attorney for the Whitsons, filed a motion to transfer the case to the Kansas Supreme Court.

In his motion, Lee said the case had significant public interest because it involved the transfer of an individual in the state's sexual predator treatment program to a privately owned and operated and licensed group home.

And Lee, wrote, the case involves legal questions of great public significance.

In his response to the transfer motion, VanParys said the case should not be moved to the supreme court because it "has limited public interest.

"The issue involved is one of local land-use control and does not involve a matter of substantial public interest," VanParys said.

Additionally, VanParys said, King's ruling supported "the legal principle that local governments have broad powers to adopt and enforce land-use regulations."

Oroke said the county's zoning rules should have prevented the Whitsons and SRS from moving Hendricks into the county.

"SRS or the Whitsons or anybody else has to abide by county zoning rules and regulations," Oroke said. "They must apply and go through the proper steps and procedures like any other individual would need to go through and that was not done. Once that application was made, the county would have to had made the judgment based on our rules and regulations."

It shouldn't have mattered that SRS, which is a state agency, was involved, Oroke said.

He noted that a year ago that Kansas Department of Transportation wanted to put a tower in the Easton area.

"They came in and applied for a special-use permit and went through the process," Oroke said. "It's just one agency of the state -- SRS -- that it appears they don't think the rules apply to them."

VanParys said the Whitsons' attorney has to file briefs by mid-November, and it's likely they will receive a 30-day extension.

"I would anticipate their brief will be filed before the end of the year and we're given 20 days to respond," VanParys said. "Then the Supreme Court would either rule based on the briefs or schedule it for oral arguments."

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