Independence Square

John Pennell looked like the big-game hunter who’d finally bagged his ultimate trophy.

A photograph of the longtime Independence gadfly appeared in the pages of The Kansas City Star, along with news of the quarry he’d taken down after stalking him for years.

Pennell had finally lined up Ken McClain in his cross hairs, and Jackson County’s government had helped him pull the trigger.

For most of a decade, Pennell had been pursuing McClain, a wealthy lawyer and developer who had considerable influence in his adopted town of Independence.

Too much influence, say Pennell and a host of others who criticized McClain’s every move.

But this time, McClain had simply gone too far. Excavating near one of McClain’s housing developments in April 2003, a contractor McClain had hired carved an ugly scar into earth that was actually county park land.

Pennell discovered the transgression and fed it to the media, promoting it as a scandal while county officials ratcheted up their demands on McClain. County legislator Robert Stringfield has now hired Pennell as an aide, and in June, the two of them got their way — the county ditched arbitration and filed a lawsuit against McClain. The county is demanding millions over the developer’s removal of parkland soil.

For the cottage industry in McClain-hating that appears to supply much of Independence with its heat and light, the squabble over a misdirected bulldozer scrape has turned into a showdown.

Stringfield and Pennell seem to have convinced the Star and others that McClain, the developer so many in Independence love to loathe, has met his match.

But there’s another, less sensational version of events in the east Jackson County town. That a man who happens to be rich got that way by making millions fighting righteous battles against the tobacco industry, industrial polluters and unethical employers. That he then invested his money to transform a town that had nearly died. That along the way, he picked up small-town enemies who turned slight disagreements into nuclear battles, enemies who too easily believed that a wealthy developer was rotten to the core.

But that version wouldn’t be as sexy as the little guy winning a victory over the corrupt magnate, would it?

It’s not hard to tell which parts of Independence Square have been bought and cleaned up by Ken McClain. His properties are the ones with the ornately painted façades, crystal-clear windows and dust-free signs.

“Here’s the difference. Look at the quality,” he says, giving a tour of the historic district and pointing out the improvements he’s put into the storefronts he owns. One that he doesn’t is home to a beauty parlor. Its black tiles are cracked and chipped, but the owner is inside styling hair, which McClain admits is something.

“The last thing I need is more empty buildings to fill,” he says.

Since 1997, McClain has been buying up the square, one store at a time. So far, McClain says, he has spent $8 million to acquire and repair the 16 historic buildings he owns. The corner building that now holds the specialty groceries and imports of Gilbert, Whitney and Co. cost $600,000 to repair and $250,000 to stock, he says. Café Verona, next door, with its patio, two floors and giant “Birth of Venus” mural, cost quite a bit more than that.

In June, McClain closed on two more buildings on the square — the cinema and another showy corner building that has been an antique shop.

Gradually, McClain is turning the town into the Independence he used to know.

Although he grew up in Brighton, Michigan, McClain made annual summer pilgrimages to Independence in the 1960s and 1970s to visit his grandmother, Gwendolyn McClain.

“My grandma made it just the most exciting time to be alive,” McClain says.

She organized trips with an army of McClain’s cousins to regional attractions — the Truman Presidential Museum and Library, Fort Osage, Jesse James’ home in Kearney, the Mormon Visitors Center. The grandson of a prominent Reorganized Latter Day Saints church leader (called the Community of Christ now), McClain considered the town a kind of child’s paradise.

McClain says he clung to this vision of Independence as he attended Graceland College and then law school at the University of Michigan. And he continued to make pilgrimages back.

It was during one such visit for an RLDS Church World Conference that McClain met his wife, Cindy.

After law school, he turned down offers from firms in Los Angeles, New York, Seattle and Atlanta to take a job with Stinson, Mag & Fizzell in Kansas City. The reason? So he could move to Independence with his new wife.

But the Independence he moved to in 1982 was nothing like McClain’s recollection. “It was in shambles,” he says. “The whole square was closed.”

He likens it to the climactic scene from Planet of the Apes in which Charlton Heston realizes he’s been on Earth the whole time. “You maniacs! You blew it up!” the movie character exclaims.

When he saw the condition of the city, he wondered why the people with money and influence had let it happen.

“I always told myself that if I ever was successful I wouldn’t just sit on my hands and let the town deteriorate,” McClain says. “Anytime you try to make changes for the better, you are going to get resistance. I didn’t know how hard it would be.” Still, he says, “I wouldn’t choose to live anywhere else.”

Meanwhile, as a lawyer, McClain was learning how to win in court. In 1985, he was recruited to another firm that represented the Independence School District. The district was one of the first in the state of Missouri to sue a company over the asbestos products that were then being removed from school buildings because of health risks.

The eventual $1 million verdict for the district was not lucrative for the firm, which had been billing by the hour. But in 1989, McClain’s firm made a similar case on a contingency basis for 21 other Missouri school districts, which made for a much larger payday.

McClain says he realized he had a knack for in-depth, technical cases, and that taking such cases on contingency, though a risk, could pay off in large ways.

Four years later, he used that strategy to make legal history.

By 1993, McClain was a partner in the firm Humphrey, Farrington & McClain, and he’d drafted a new employee into a risky case. Greg Leyh had joined the firm that August after leaving a career as a professor of political philosophy.

“Not two weeks after I went to work for him, he came into my office and said, ‘We’ve got to go after big tobacco,'” Leyh recalls.

To Leyh, the request sounded idiotic. Few people were pursuing personal injury cases against the tobacco companies, and no one was winning.

“Nobody was doing it in ’93, other than small-time guys who just got their heads handed to them by Shook, Hardy and other firms,” Leyh says.

Tobacco industry attorneys were known for fighting every court motion and never settling lawsuits. And they were undefeated on personal injury claims.

McClain, however, had a personal debt to settle. His father had died of lung cancer at 50.

Leyh went to work and found the Tobacco Liability Project at Northeastern University in Boston, which had a case that no one else would touch.

In the 1940s, Janet Sackman was a beautiful strawberry-blond model who made smoking Lucky Strike cigarettes seem all-American. When she was 17, an ad exec told her that she should start smoking to better look the model part. She became addicted, stopping only when she was diagnosed with throat cancer. She would have her larynx and part of a lung removed.

McClain and Leyh filed a personal injury case based on her illness, only days before the statute of limitations was to expire.

“He was basically the only lawyer in the country willing to take the case,” says Richard Daynard, executive director of the Northeastern University group.

Against heavy odds, McClain and Leyh were able to wrest a few key documents from Chesterfield cigarette maker Liggett Group, which showed that the company had taken steps to make its product more addictive.

“It was the Rosetta stone in a very real way to unfold the secrets of tobacco industry,” McClain explains.

The case settled. Details of the payoff are confidential, but even $1 would have been more than any other lawyer had wrung out of a tobacco company on a personal injury claim related to smoking.

“It was the first time any tobacco company ever settled a case,” Daynard says. The victory proved that such cases could be won, and Daynard says it established McClain as one of the ten most important lawyers in the country in tobacco litigation. “He’s really a very important national figure in this area,” Daynard says.

When the state of Missouri began contemplating a lawsuit to collect for health-care costs connected to smoking, McClain was on the short list to help represent Attorney General Jay Nixon. With McClain’s help, Missouri was offered $4.5 billion over 25 years from the tobacco industry.

“Ken is the best trial lawyer I’ve ever seen,” Leyh says. “He once told me there is no place he’s more comfortable than in the courtroom. … There is nothing that befuddles him.”

McClain’s latest cause was on behalf of workers at a Jasper County popcorn factory. The workers spent their days laboring around vats of boiling butter flavoring, and many suffered from rare lung and throat illnesses.

In 2004, McClain convinced a jury that the company knew the chemicals in the flavoring were harmful and won a $20 million verdict for one of the employees. Last year, another worker won a $15 million verdict. McClain has another 70 plaintiffs lined up to make cases of their own against the factory.

The cases earned him recognition as one of Missouri Lawyers Weekly‘s 2004 Lawyers of the Year.

“I’ve always regarded Ken McClain as a utopian,” Leyh says. “These are guys who imagine the world a certain way and create communities around how life should be…. He’s setting up a community out there he thinks will help people to enjoy life.”

McClain’s legal victories have funded his personal urban-renewal campaign.

It started with Saddle Ridge.

By the mid 1990s, with his legal career a success, McClain and his wife, Cindy, were ready to build a new house that would accommodate their six children. But Independence didn’t then have what McClain called an “executive subdivision,” a new development with the kind of upscale homes they had in mind.

“Independence wanted it in the worst way,” McClain says. “How do I say this? I like these people. I wanted to help.”

The project also brought McClain and John Pennell together for the first time in the fall of 1996.

Pennell was then a small-time home builder in business with his brother. The pair were building six or seven homes a year.

“Move-up houses,” Pennell calls them. They were priced around $225,000.

Pennell remembers the marketing materials he’d seen for Saddle Ridge. McClain insisted on strict control of designs. He required slate roofs and brick or stuccolike exterior. In return, he promised an exclusive neighborhood with a swimming pool, sculptures and a trail system linked to the county’s own.

The plan sounded good to Pennell, who says he offered McClain a disclosure.

“I’m getting ready to run for mayor,” Pennell recalls telling McClain. “If that’s a problem, we need to go somewhere else.”

McClain reassured Pennell that it wouldn’t be. “This is business. That’s politics,” Pennell remembers McClain saying.

McClain wasn’t encouraging. Both men remember that McClain told Pennell he wouldn’t have much of a chance.

McClain says he meant to caution the political neophyte that the voters didn’t know him and wouldn’t support him. He remembers suggesting that Pennell run for a city council seat first.

But the way Pennell tells the story, McClain made the decision for the city. He had picked Mayor Stewart, and so Stewart, the incumbent, would continue to be mayor.

Pennell paid $50,000 for a single lot near the entrance to Saddle Ridge. He and his brother built a 3,600-square-foot, single-story house with a walk-out basement and a huge stone fireplace. The completed house languished unsold for two years, sucking up 24 months of loan, tax and insurance payments before it finally sold for $525,000.

Pennell blames the delay on McClain’s “build it and they will come” philosophy, which passed for market research. “It never dawned on me that someone like that would have no business plan,” Pennell says.

Pennell says problems with the development hurt his ability to sell the home. He says erosion problems caused mud to ooze across the newly built streets, building up deep enough at times to stop traffic. McClain, he says, was slow to follow through in building the pool and adding the sculptures and other aesthetic amenities.

But McClain blames Pennell’s problems on the home design, which included only two bedrooms. “We tried like hell to sell it,” McClain says. “The reason he lost money was, it was a goofy design.”

Pennell’s mayoral run was no more successful. Independence voters overwhelmingly re-elected Stewart in 1997.

But in defeat, Pennell gained some name recognition, and soon people with gripes about Stewart’s mayoral administration began approaching him. And many of the complaints, Pennell says, involved McClain.

McClain’s critics complain that he has used his money to buy the politicians of Independence.

He has been a prodigious political donor. In 2002, he helped start a political group called Citizens for Independence with a donation of $22,000. The group backed Independence City Council members Jim Schultz and Jason White and Mayor Ron Stewart in the last city elections. More recently, McClain’s political clout rose to a new level when Emanuel Cleaver chose him as co-chairman of his successful congressional campaign.

McClain insists that he doesn’t ask for special favors, but he isn’t afraid to tell elected officials what he thinks. And that rubs some people the wrong way.

“He’s a cocky untouchable. He’s a typical lawyer,” says Councilwoman Renee Paluka, who hasn’t been endorsed or opposed by McClain and is in her second term. “When you run for office, he threatens that he’ll spend every dime to take you out of office.”

“I don’t remember making that comment to anyone,” McClain says. “I think that may be kind of the lore because I was willing to spend money to put candidates in.”

Paluka says that McClain’s money has granted him a special status. “Before they even cite him for codes, they call him and send him a special letter. They don’t do that for anyone else,” Paluka says. “How can you totally blame Ken McClain? His hand’s been held for so long. On the other hand, when you have someone that is investing in property, doing a lot for the city, don’t you tend to hold someone’s hand a little?”

Paluka, however, doesn’t see John Pennell as the city’s savior against the ravages of McClain.

“The town is, like, real divided about Pennell,” she says. “A lot of people think he’s a real pain in the butt because he’s always into everybody’s business.” She puts Pennell in a category of gadfly with good intentions and an ability to connect to the common citizen.

“They are borderline geniuses, but they don’t know where to stop,” Paluka says. “Personally, I think everybody needs Pennells.”

She says Pennell’s greatest moment was his fight against the perennial bugaboo of small-town crusaders — fluoridated water.

“He kept that alive in this city for a year,” Paluka says. “If it wasn’t for him, it probably would have passed.”

Paluka admits that Pennell’s stand didn’t earn him universal praise.

Pennell says he was a reluctant clearinghouse, but he says he can’t refuse to listen to people who call with their complaints.

He also has the luxury of time. He lives cheaply in his parents’ house a few blocks south of Independence Square. Pennell is careful to say that there is no personal animosity between him and McClain.

“It’s not just me,” Pennell insists. “I may be the focal point. But there is a whole group of people out there that have not the highest opinion of Ken McClain.”

McClain has had great success as a developer, but he has also struggled with failure.

After hearing someone remark that it was a shame that houses near the Truman home were decaying, McClain bought eight such properties in 1998 and rehabbed them.

Work crews lifted each century-old building to pour a new concrete foundation. They overhauled the electrical and plumbing systems. And they repainted every wall and ceiling.

The buildings qualified for a program through the county that allowed the eventual buyers to pay reduced property taxes. But the program required the renovations to be historically accurate, which made for some hard discussions between McClain’s contractors and the city.

McClain eventually sold the homes, one for $260,000, but he didn’t make money on the project, he says.

“We’ve had to fight at every turn to be able to do this,” McClain says. “We got nothing except arguments and complaining.”

McClain received no tax money for the houses themselves. And though tax abatements made the houses easier to sell, they didn’t put any cash in McClain’s pocket.

Meanwhile, a few miles to the west, Kansas City is embroiled in controversy over a similar project with a similar goal — to jump-start urban renewal by fixing up a couple of houses in a decaying area. But in Kansas City, the populace was scandalized by news that the city had spent $600,000 and was on the hook for a total of more than $1 million after rehabbing modest homes appraised at less then $30,000 each on Tracy Avenue.

In Independence, thanks to McClain, a far better program of renewal happened quickly and without the city spending a dime on the houses themselves.

McClain remains surprised that the project was so hard. He should be used to it by now, though. Every McClain project has had its critics.

None more than the Santa Fe Trails tax-increment-financing district. In 1997, McClain proposed making three decaying properties on the west side of Noland Road part of a new development that would rim tiny Doutt’s Lake with stores and homes. After receiving commitments from several retailers and a grocery store that agreed to locate there as an anchor tenant, he took his case to the city.

McClain’s project was approved for a TIF district, and the city issued $10.26 million in bonds to pay for certain parts of the project, including property acquisition and financing expenses.

But the development struggled almost from the start when the grocery store backed out. Since then, McClain has been unable to find a replacement, and the lengthening weeds have become a sore point for some.

But more troubling than the vacant property is the financial time bomb in the city-backed bonds.

The original agreement requires McClain to have at least 106,000 square feet of developed improvements and 80 percent occupancy by May 31, 2006.

McClain has said he’ll continue to make good on the city’s debt payments, which begin to come due in October 2006.

By then, McClain says, “We will have everything in place on the TIF. We currently are working on a major project we’ll announce shortly.”

He insists that he’ll find a good mix of stores and a suitable anchor.

“I could put a bunch of fast-food restaurants tomorrow,” he says. “Wendy’s was desperate to build a store there.”

McClain insists that he doesn’t want to be doing so much at one time. He says he really hoped other developers would follow suit. “Our idea was not to do all of this,” he says. “The idea was to be a catalyst.”

McClain says he would love to see more activity on the square in particular.

He says his wife’s vision is driving the mix of specialty shops and restaurants he’s building in hopes of drawing tourists from the people who come for Truman, the Mormons or the National Frontier Trails Museum.

“There are lots of tourists, but there is nothing for them here,” McClain says.

Only a couple of McClain’s businesses are breaking even, which forces him to keep up the pace on his law career.

“I love practicing law, and I love trying cases, but I might not have the urgency to continue to try as hard as I do if there wasn’t the great need to do so many projects,” he says. “When you are under the most pressure … your emotions and feelings are at the highest. This has kept me sharp, kept me focused.”

Jack Cardwell, a real estate appraiser who has worked for McClain, acknowledges that it takes more motivation than just dollars to justify investment in Independence Square. “I think it’s a labor of love that he wants to help the city that’s been good to him,” Cardwell says.

McClain seems to think that the city could be better to him.

If he ran the town like some say, he says he’d get more tangible results. There would be more park benches on the square. The city would not have approved a CarMax dealership for the TIF district at Interstates 70 and 470, which has drawn more retail energy from Noland Road. And there would be more attention paid to the hesitant rebirth of the square.

McClain says that Independence doesn’t advertise about its transformation, further proof that he doesn’t always get his way.

But some in town are convinced that McClain pulls the town’s strings.

“He’s done good things with my [tax] money,” says Cecil Vaughan, a former Jackson County legislator who lives only a few houses from McClain.

But Vaughan says McClain acts like he’s the only one who has ever done anything for Independence.

“Ken’s kind of sometimes his own worst enemy,” says auto dealer Galen Boyer. “He’s bright. He’s brusque. He’s not very diplomatic all the time. It comes across as sort of arrogance that doesn’t sit so well with some people.”

Jerry Banark has that impression, and he’s never met McClain.

Banark’s McClain story may be typical.

Banark says he got crosswise with McClain after a storm a couple of years ago when, for the first time ever, he got water in his basement when the sewer backed up through his basement floor drain. “This was dirty water. This was toilet water.”

Two feet of toilet water meant a $9,000 cleanup bill to replace the saturated carpet and repair other damage, not counting the guns. “I lost some pretty doggone good guns.”

He says the city assessed the problem and blamed it on a poorly designed sewer line. But Banark is convinced that the problem was caused by McClain. He believes construction debris from a McClain project nearby floated into an open manhole and caused the backup.

Banark didn’t call McClain, who is listed in the phone book. Instead, he posted signs on his fence and appealed to the City Council.

“I put signs on my fence calling him a zero as far as character goes,” Banark says. “I was hoping that McClain … would knock on my door or have one of his people knock on my door. It would have been settled.”

Instead, Banark has held a grudge, one that caused him to quit the county historical society when it honored McClain as its Hometown Hero in 2003.

“When you make the biggest crook in Independence the man of the year, it’s time to get out,” he says.

A couple of years ago, John Pennell started hearing that McClain was behind on his property taxes for several buildings, including the Central Professional Building, an office building just off Independence Square that holds Humphrey, Farrington & McClain. The building legally is owned by McFarr Realty LLC, of which McClain is a partner.

Pennell called Mike Mansur of The Kansas City Star, who would go on to write a story in December 2003 about how some influential Jackson County landowners were not required to pay penalties or interest on overdue property taxes.

Though he wasn’t the only one getting special treatment, McClain became the poster child for the phenomenon. County collector Michael Pendergast had forgiven McFarr Realty more than $21,000 in penalties and interest for overdue taxes for 1999 and 2000.

The exposé earned Mansur another scoop from Pennell four months later.

That’s when Pennell started hearing complaints about massive earth-moving vehicles damaging the roads of Saddle Ridge. Pennell checked and found that McClain had permission from the state Department of Natural Resources to move the dirt. (He would later learn that McClain’s permit had actually expired in 1997.)

McClain eventually worked out a deal to pay part of the city’s repair work on the roads. But Pennell kept getting calls, specifically about where McClain had been removing dirt.

In the spring of 2004, Pennell and a friend, Bill Wilcox, went to the excavation site with a tape measure. They carried plastic bags to justify a cover story that they were hunting for mushrooms. They were going to be on park land but had to cross private property to get there.

Sure enough, the pit McClain’s contractor had dug for a pond in the development was partly on county parkland. Pennell called county Legislature member Robert Stringfield. Then he called the Star.

The land McClain’s hole encroached on is part of the 25-mile-long Little Blue Trace Park, which the county began acquiring in 1972 for flood control and to preserve natural resources. The area where McClain’s contractor had dug was inaccessible from the park’s bike trail and had become a dumping site, collecting several old cars and other junk.

An old fence line appeared to separate the park from private land that McClain owned, claimed the contractor who dug the hole in a deposition later. When he moved the dirt, he simply followed the old fence boundary. But Pennell found, after checking county records, that the actual boundary was a couple of hundred feet east of the fence line.

McClain was cited by the state for the expired permit, and County Executive Katheryn Shields told the public that the park would be repaired by McClain.

Nearly a year later, on April 25, 2005, the Jackson County Legislature submitted the matter to an arbitrator, retired Jackson County Circuit Judge John I. Moran.

Legislator Scott Burnett acknowledges that he favored the proposal in part because of who McClain is.

“I voted to go to arbitration with Ken McClain because he’s a skillful lawyer,” Burnett says. “I thought we’d be in court five to ten years.”

Stringfield cast the only dissenting vote. He said at the time that if arbitration were the solution, it should be handled by a retired federal judge to avoid “the illusion of favoritism.”

In a May 4 letter from Stringfield to Shields, the legislator argued, “For the legislature to surrender the leverage of trial by jury with no knowledge of insurance coverage stinks with the appearance of political influence.”

Moran then backed out of the arbitrator’s role. A second judge similarly declined to become involved.

Stringfield has hired attorney Sidney Willens, who has convinced him that the parkland excavation constitutes trespassing and should entitle the county to four times the damages to the land. In other words, he intends to make a case that McClain owes the county about $8 million, four times the $2 million estimate he got from an excavation company to replace the earth.

Stringfield and Willens believe it would be an easy win, citing a trespassing case involving oil drilling in parkland in the 1980s.

McClain, however, argues that the trespassing statute doesn’t apply. Under the property-damage laws, McClain says, the county is entitled to no more than $25,000. He has offered to swap the county for land worth four times that amount.

On May 16, Willens wrote a letter to Stringfield charging that “McClain intentionally and/or recklessly ignored boundary lines,” “submitted misleading and fraudulent paperwork to City” and “defied state law.”

“Let us seek to improve the park with McClain’s money. Taxpayers deserve no less. Future generations deserve no less,” Willens wrote.

Pennell and Stringfield mailed copies of the letter to news media, county officials and a number of city residents, including every person in Saddle Ridge.

McClain counters with the deposition of his excavator, Bill House, who died of cancer on June 4. Knowing that he was in bad health, House agreed to provide the deposition before the case lingered longer.

House testified that he’d never seen any surveys of the property. “There’s an old fence row there, and we always assumed that that was the property line,” he said.

House appeared to back up McClain’s contention that, contrary to what Willens says, there was no intention to take county land.

“We were just making a water amenity,” House testified.

The day after Pennell’s photo appeared in the Star in a story that described his role in putting McClain in hot water, McClain confronted him on Independence Square.

“He became angry. His fact got flushed. He threatened me,” Pennell claims. “He threatened Robert Stringfield by name.”

Pennell filed a police report. But when the police department told him that the encounter did not constitute a violation of state law, Pennell mailed a letter to the U.S. Attorney’s Office.

McClain recalls his conversation with Pennell differently.

“I said, ‘John, I’ve turned the other cheek over and over, but ultimately it’s going to stop.’ It was not even a heated discussion,” he tells the Pitch.

Pennell sees McClain’s dirt pit as one too many offenses.

“McClain wants to have the image of being upstanding and responsible,” Pennell says. “In order to have that image you’ve got to live up to those standards. If I don’t stand up, who will?”

Pennell says he dreams of a lawsuit that will force McClain to open his own records and expose his deeds.

McClain, meanwhile, is irked that Pennell is getting so much positive press out of the county lawsuit.

McClain has bested tobacco companies. He’s won millions from irresponsible business owners.

He gives the impression that Pennell is a minor irritation.

“He’s leading the crazy parade,” the developer says.

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