County backtracks on closure of 71st South

It's not every day that defendants in a lawsuit question whether they were right to do what they did.

But that's what's happening in a case involving Sedgwick County and the controversial closing of part of 71st Street South.

Back in July, county commissioners voted 3-2 to close 71st Street South between 127th and 143rd Streets East to help a local airport, Cook Airfield, expand its runway. The city of Derby and a group of homeowners promptly sued the county.

Now, the county says the closure is void because it used the wrong statute, according to a court filing. County officials say whether the decision should be reversed comes down to whether 71st Street South is a street or a road.

But a political shift on the commission also is a factor in the county's stance. Two of the three commissioners who supported the closure are no longer on the bench: Kelly Parks did not seek re-election, and Gwen Welshimer lost to Jim Skelton.

After Skelton took office last month, the mayor of Derby, Dion Avello, sent Skelton a letter asking him to reconsider the road closure.

The next day, commissioners met in a closed session; they did not say what they were meeting about because they did not take any formal action.

Soon after, the county filed a supplemental brief with the court saying that it did not use the proper state statutes to close the road and the "board lacked the jurisdiction to vacate 71st Street in the manner it did in this case."

In its brief, the county said that "as a result, the board would consider it appropriate and efficient for the court to deny its motion for summary judgment. . . and enter judgment in favor of the appellants on this ground."

The brief also said it would be appropriate for the court to resolve the case by holding the decision to be void.

The county's lawyers would not comment beyond the county's brief after a hearing in court Thursday at which time District Court Judge Douglas Roth gave parties in the case until March 3 to make oral arguments.

Wichita lawyer Jeff Kennedy made an appearance on the behalf of the owners of Cook Airfield.

He told Roth that his clients entered a motion to intervene in the case because the county no longer appeared to have Cook Airfield's interests in mind.

He called it "unbelievably unfair" for the county to now argue it had no jurisdiction to close the road.

The vote to close 71st Street South drew heated opposition from Derby and some area residents.

"As you know," Avello wrote to Skelton last month, "the city of Derby opposed the closure of this county section line road for the benefit of one small business and to the detriment of Derby's future growth potential."

Avello said the lawsuit could be put to rest —"at substantial savings in attorneys' fees to both city and county taxpayers" — if the board were to reverse its decision.

The county is asking the court to determine whether the county had the right to close the road.

The statute the county used to close 71st Street South, the county's brief says, "lists a number of types of things that can be vacated under that statute and includes a 'street' but does not expressly include the term 'road.' " The brief continues to say that "technically, 71st Street is a 'county road.' "

When vacating roads, the county's brief says, 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 later one giving notice of the viewing."

The road closure, the brief argues, "is therefore void for want of jurisdiction when not undertaken under the specific statute dealing with vacating county roads."

The brief also said that the county would "terminate other pending road vacation cases elsewhere in the county begun" under the wrong statute and that Cook Airfield's owners could refile their petition under the correct statute.

Steve Logue, one of the owners of Cook Airfield, said the county is backtracking to reverse the road closure, which would hamper plans to expand the runway and develop the area with homes that feature hangars.