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County says termination notice cannot be withdrawn

John Richmeier
jrichmeier@leavenworthtimes.com
The Leavenworth Times

Last week, Lansing City Council members voted to rescind their earlier notice of intent to terminate an interlocal agreement concerning Leavenworth County Fire District No. 1.

Council members thought this move would leave in place the existing Board of Trustees for the fire district.

But Leavenworth County commissioners believe the City Council cannot withdraw the termination notice and the interlocal agreement will expire at the end of the month. The county commissioners intend to take control of the fire district July 1.

Commissioners discussed the issue when they met Wednesday. And they authorized possible legal action in support of their position.

Commissioners discussed the matter in open session after first going behind closed doors to consult with an attorney in executive session.

Leavenworth County Fire District No. 1 provides fire department services to the city of Lansing and Delaware and High Prairie townships.

The fire district is governed by the five-member Board of Trustees that was appointed by representatives of Lansing and the two townships. The process for appointing people to the Board of Trustees was established through a 2003 interlocal agreement.

The agreement was signed by representatives of Lansing, the two townships, the Leavenworth County Commission and an assistant attorney general for Kansas.

The interlocal agreement includes a termination clause that allows any party to terminate the agreement by providing notice at least 18 months in advance.

Officials with the city of Lansing have expressed an intent to establish a city-operated fire department.

Lansing officials have argued the assets of the fire district should be divided among the parties upon the termination of the agreement, but this is an issue that is being disputed in court.

In June 2018, the Lansing City Council voted to send notification to various parties involved in Fire District No. 1 of the city’s intent to terminate the agreement at the end of 2019. In December 2018, the city issued a superseding notice, expressing their intent to terminate the agreement at the end of June of this year.

Last year, attorneys for Delaware and High Prairie townships filed a lawsuit, arguing the termination provision in the 2003 agreement is contrary to state law concerning the disorganization of fire districts.

In November, District Judge David King ruled the agreement can be terminated. But the judge ruled an “interlocal agreement cannot be used to require the apportionment of all of the property of a fire district on a party’s termination of the interlocal agreement.”

King also ruled that a city seeking to withdraw from a fire district must do so in accordance with state law.

State law outlines a process in which county commissioners can be petitioned to disorganize a fire district or alter a district’s boundaries.

Attorneys for Lansing have filed an appeal of King’s decision.

County commissioners have discussed plans for overseeing Fire District No. 1 when the agreement is terminated including the formation of a new governing body for the district. Senior County Counselor David Van Parys has said authority over the fire district will shift to the County Commission once the interlocal agreement is terminated.

During Wednesday’s meeting, Van Parys said the Lansing City Council’s attempt to rescind the termination notice is not permitted by the interlocal agreement.

“There is no provision in the interlocal agreement, which is a contract, that authorizes the city of Lansing to withdraw its notice to terminate,” Van Parys said.

He suggested sending a letter to Lansing expressing the county’s position that the city’s declaration of withdrawing the termination notice is null and void.

He said the letter should ask Lansing officials to confirm this position.

Absent such an acknowledgement, the county can take legal action including seeking a declaratory judgment and possible injunctions, Van Parys said.

Commissioners approved this course of action, asking that the city of Lansing reply to the county by 5 p.m. today.

Van Parys acknowledged this may require the Lansing City Council to have a special meeting.

County Administrator Mark Loughry said the county is operating on a short timeline. But he said the Lansing City Council placed the county in these time constraints by waiting to what he said was the last minute to take their latest action.

Commissioner Mike Stieben argued litigation funded by taxpayer money is a tragedy “but it appears this is the only thing we can do.”

“We have to bring some stability to this fire district,” Commission Chairman Doug Smith said.

Twitter: @LVTNewsJohnR

In other business

The Leavenworth County Commission:

• Reviewed a request from the city of Tonganoxie regarding unspent funds for the Tonganoxie Business Park.

The county previously provided $5 million in funding to the city to be used for work related to the development of the Tonganoxie Business Park. Those tasks have been completed, and about $1.7 million of the $5 million remains unspent.

Tonganoxie officials asked that the city be allowed to keep the money to be used for future expenses related to the business park.

Based on a motion approved by commissioners, the money will be returned to the county.

County Administrator Mark Loughry said later in an email that the money will be available for economic development and the Leavenworth County Port Authority will be able to make recommendations about how the money should be allocated.

The motion passed 3-2. Commissioners Jeff Culbertson and Mike Stieben voted against the motion.

• Commissioners determined a health hazard exists at 2210 Ottawa St., which is located just outside the city limits of Leavenworth.

Commissioners took this action while acting as the Board of Health for Leavenworth County.

Senior County Counselor David Van Parys reported to commissioners that the property does not have a functioning septic system and there is open discharge of wastewater.

Van Parys said the finding of a health hazard can be used to ask a court to take action to address the problem.

• Approved a temporary special use permit for a clean rubble private landfill at 24257 Millwood Road.