The Kansas Court of Appeals has agreed that Sedgwick County used the wrong statute when it vacated a portion of 71st Street South so Cook Airfield could extend its runway.
Commissioners voted 3-2 to vacate 71st between 127th and 143rd Streets East in 2010.
The city of Derby and a group of homeowners promptly sued the county. Derby City Manager Kathy Sexton said at the time that the county hadn’t proved there was no loss to the public sector by closing the road.
After two of the commissioners who voted to vacate the street left the board — one was defeated and one did not seek re-election — the mayor of Derby, Dion Avello, asked then-new commissioner Jim Skelton to reconsider the board’s action.
The two commissioners who initially voted against closing the road, Tim Norton and Dave Unruh, found a new majority with Skelton.
The county decided not to defend itself against the lawsuit by the city of Derby and the group of homeowners, saying that it did not use the proper state statute and that it would be appropriate for the court to resolve the case by declaring the closure void.
A Sedgwick County District Court judge agreed the county used the wrong statute and said the closure was void.
The county said the mistake came down to the fact that 71st Street South, while called a street, is actually a road. When vacating roads, state law "requires that the county commission do things it did not do in this case such as appointing three disinterested householders to act as viewers with the county commissioners and publishing two different public notices, with the latter one giving notice of the viewing," according to the county’s court brief.
Crosswind Aviation, owners of Cook Airfield, appealed the district court’s decision.
The Kansas Court of Appeals ruled that “the board’s failure to use the required statutory authority to vacate a county road … was a jurisdictional defect. The district court did not err in ruling that the board lacked jurisdiction … to approve Crosswinds’ petition for vacation.”
Jeff Kennedy, the Wichita lawyer representing the owners of Cook Airfield, said Monday he had no comment about the appeals court’s ruling.
Robert Parnacott, assistant county counselor, said Crosswinds Aviation has 30 days to file a petition for review by the Kansas Supreme Court.
In the meantime, county commissioners passed a charter resolution about closing roads that would give Crosswinds the ability to ask the county again to close 71st.
However, a majority of commissioners would have to agree that closing 71st Street would not be detrimental to the public.