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Kansas Supreme Court Selected Opinion Summaries
Dillon Real Estate Co. Inc. et al. v. The City of Topeka, Docket 95,162
July 27, 2007

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 95,162: Dillon Real Estate Co. Inc. et al. v. The City of Topeka

The Supreme Court today struck down the City of Topeka's annexation of a 10-acre tract in the Sherwood Improvement District at 29th and Urish Road, just west of the city limits.

The decision came in a lawsuit against the city over its 2003 unilateral annexation of Dillon Real Estate Co. Inc.'s property at that intersection. The Supreme Court's decision bars the annexation and orders the Shawnee County District Court to enter judgment against the City.

The Court ruled today that a provision in 1987 amendments to state annexation laws protected improvement districts or any part of the land in them from a city's unilateral annexation if the improvement districts were created prior to the amendments' effective date. The Court said the City of Topeka cannot unilaterally annex the Sherwood Improvement District or any part of it because the improvement district was created before 1987.

The Court said that cities may annex special improvement districts by following the "county approval" annexation procedures in Kansas law. These procedures require safeguards such as the City petitioning the county governing board and providing notice. Instead of providing notice to Dillon, the improvement district, the township, or the county, the City chose to rely upon written consents to future annexation that were filed by the Dillon's property's previous owners. Dillon itself did not consent to the annexation and together with the Sherwood Improvement District and Mission Township filed suit in 2004 contesting the annexation.

Writing for a unanimous Court, Justice Lawton R. Nuss said the City incorrectly annexed the property, agreeing with Dillon that state law "flatly prohibits" the City from unilaterally annexing any land contained in the Sherwood Improvement District because it was created prior to the 1987 amendments.

The Supreme Court also rejected the City's contention that the 1987 provision is unconstitutional because it constitutes "special legislation" designed simply to protect the Sherwood Improvement District from annexation by the City of Topeka. The Court stated:

"In the instant case, the parties agree that 33 improvement districts were in existence when K.S.A. 12-520(c) became law in 1987. Nevertheless, the City argues that the statute constitutes special legislation because Topeka is the only city affected by it."

However, Justice Nuss wrote that fact does not dispose of the constitutional question. He quoted prior Kansas law that states the "mere fact that a statute only applies to one city, one county, or one school district, does not mean that the law is a special law" and violates the Kansas Constitution "if it is possible that other governmental entities may come within the operation of the act."