*fn1 REPORTER'S NOTE: Previously filed as an unpublished
opinion, the Supreme Court granted a motion to publish by an
order dated October 3, 1990, pursuant to Rule 7.04 (1989 Kan. Ct.
R. Annot. 34).
The City of Lawrence appeals a summary judgment ruling entered
for Garber Enterprises, Inc. (Garber). Garber opposed the City's
decision to vacate portions of two city streets in the western
part of Lawrence. We affirm.
In 1985 residents of the Western Hills subdivision petitioned
the Lawrence City Commission to vacate 12th and 13th Streets west
of Wagon Wheel Drive. The matter was referred to the
city's planning staff and planning commission. Both opposed the
action. The City took no action after the Lawrence City Planning
Commission voted 7-2 to oppose it.
The matter came up again in 1987. The City set a hearing date
and published a notice of hearing pursuant to K.S.A. 1989 Supp.
12-504. Garber owned all the lots in a subdivision directly west
of Wagon Wheel Drive. Some of Garber's lots touched the streets
which were the subject of the vacation hearing.
Garber filed a timely written objection to the proposed action.
Once again, the city planning department recommended keeping the
streets open. The Lawrence-Douglas County Metropolitan Planning
Commission unanimously recommended keeping the streets open. The
Lawrence city attorney advised the city commission that Garber
had standing to oppose the action, and, therefore, under the
language of K.S.A. 1989 Supp. 12-505, had the right to block the
action. Nevertheless, the city commission voted 3-2 to vacate
portions of the two streets.
Garber sued to block the action. The court made a finding that
Garber was a proper party and granted summary judgment. The City
of Lawrence appeals.
K.S.A. 1989 Supp. 12-505 states in part, "The petition shall
not be granted if a written objection thereto is filed with the
city clerk, at the time of or before the hearing, by any owner or
adjoining owner who would be a proper party to the petition but
has not joined therein."
Proper parties for filing vacation petitions are described in
K.S.A. 1989 Supp. 12-504 as "the owner or owners of the lands
adjoining on both sides of any street, alley or public
reservation such as, but not limited to public easements,
dedicated building setback lines, access control, or a part
Simply stated, if Garber is an owner as defined by K.S.A. 1989
Supp. 12-504, Garber is then empowered to block the action to
The map below best illustrates the issue:
[EDITORS' NOTE: MAP IS ...