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GARBER ENTERPRISES, INC. v. CITY OF LAWRENCE

July 13, 1990.

GARBER ENTERPRISES, INC., Appellee,
v.
CITY OF LAWRENCE, a Kansas Municipal Corporation, Appellant.



*fn1 REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated October 3, 1990, pursuant to Rule 7.04 (1989 Kan.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

[14 Kan. App. 2d 657]

      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 thereof."

  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 vacate.

[14 Kan. App. 2d 658]

     

 The map below best illustrates the issue: [EDITORS' NOTE: MAP IS ...


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