1

NOT DESIGNATED FOR PUBLICATION

No. 122,582

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DELAWARE TOWNSHIP and HIGH PRAIRIE TOWNSHIP,

Appellees,

v.

CITY OF LANSING, KANSAS,

Appellant,

LEAVENWORTH COUNTY, KANSAS, and

LEAVENWORTH COUNTY BOARD OF COMMISSIONERS,

Appellees.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; DAVID J. KING, judge. Opinion filed March 5, 2021. 

Affirmed.

Adam M. Hall, of Thompson-Hall, P.A., of Lawrence, for appellant. 

Timothy P. Orrick, of Orrick & Esrkine, L.L.P., of Overland Park, for appellee Delaware 

Township.

Chadler E. Colgan, of The Colgan Law Firm, LLC, of Kansas City, for appellee High Prairie 

Township.

David C. VanParys, county counselor, for appellee Leavenworth County Board of 

Commissioners.

Amanda L. Stanley, general counsel, for amicus curiae League of Kansas Municipalities.

Before GARDNER, P.J., BRUNS, J., and WALKER, S.J.
2

PER CURIAM: In 2003, the Leavenworth Board of County Commissioners 

(BOCC) created a fire district which included the City of Lansing (Lansing), the 

Delaware Township (Delaware), and the High Prairie Township (High Prairie). 

Simultaneously with the creation of the fire district, the parties entered into an interlocal 

agreement which, in part, purported to govern the disposition of fire district property in 

the event that the agreement was terminated. The agreement provided that any party 

could terminate the agreement through proper notice.

Several years passed in which the fire district served its function within the 

county. In 2018, Lansing decided to terminate the agreement and sent notice to the parties 

as specified in the agreement. In its notice, Lansing made it clear that it would be 

providing fire protection services for itself in the future. As part of the notice, Lansing 

sought disposition of the fire district's property.

Delaware and High Prairie petitioned for declaratory judgment seeking to stop the 

dissolution or alteration of the fire district and the disposition of the fire district property. 

The district court granted the petition, ruling in favor of Delaware and High Prairie, and 

Lansing appeals. Because under controlling Kansas law Lansing could not unilaterally 

alter or disorganize the fire district and could not force a disposition of property through 

its notice, we affirm the district court's holding.

FACTS

In June 2003, Lansing, Delaware, and High Prairie—all three of which are located 

within Leavenworth County—entered into "An Interlocal Cooperation Agreement for the 

Establishment of a Joint Board, a Fire District Board of Trustees and the Funding and 

Operation of Fire District No. 1, County of Leavenworth, Kansas" (Agreement). The 

purpose of the Agreement was to create, and provide for the operation of, a fire district 

covering the city and townships (Fire District). The Agreement stated that the parties 
3

entered into it "pursuant to the provisions of K.S.A. 12-2901 et seq.," which is the 

Interlocal Cooperation Act. The Agreement was set to be in effect for five years, with an 

automatic renewal for four-year terms thereafter, unless a party terminated in a manner 

consistent with the Agreement. 

The Agreement also stated that the Leavenworth County Commission delegated 

"its authority to appoint the members of the Fire District Board of Trustees to a joint 

board appointed by the governing bodies of Lansing, Delaware and High Prairie." The 

Agreement also purported to cover ownership and disposition of Fire District property. 

Under the Agreement, "[o]n or after January 1, 2004, any equipment, vehicle, building, 

personalty or real property acquired by the Fire District, by purchase, contribution or 

otherwise, except as otherwise provided below, shall be owned solely by the Fire 

District." 

The Agreement contained a number of exceptions. For example, the existing 

township fire stations were retained by the respective townships, but the Fire District 

could purchase the fire stations for $1 on the 10th anniversary of the establishment of the 

Fire District. The townships agreed to lease the same buildings, as well as equipment and 

vehicles used by the townships, to the Fire District for $1 a year. 

The Agreement also purported to set out specifics for how a party could terminate 

the Agreement and dissolve the Fire District. Under the section 10.b. of the Agreement:

"Subject to the provisions of paragraph 2 of this agreement, any party may 

terminate this agreement by providing to the other parties written notice of its intention to 

terminate the agreement. Such notice shall not be effective unless received by the other 

parties not less than eighteen (18) months prior to the effective termination date."
4

In the event the Agreement was terminated by a party, the division of property was 

also covered. First, a general statement provided that "[p]aragraph 8 of this agreement 

shall apply and the property referenced shall be disposed of in accordance with the terms 

of that section." Paragraph 8 of the Agreement refers to the title of the property purchased

by the Fire District, and the property each party brought into the Agreement, such as the 

townships' fire stations. 

Second, "[a]ll other assets of the Fire District shall be apportioned between the 

parties based upon the assessed valuation of each party as compared to the assessed 

valuation of the Fire District as a whole." To determine the valuation, the parties agreed 

to "utilize accepted accounting and depreciation practices." If no agreement on the value 

of the property could be reached, the parties agreed to submit to binding arbitration. 

If, at the time of termination, the Fire District had any liabilities, the Agreement 

provided that the parties "shall jointly be responsible for the discharge of that liability." 

The amount each party was required to contribute would be based "upon a comparison of 

the assessed valuation of each party as each party compared to the assessed valuation of 

the Fire District as a whole."

On June 23, 2003, following a public hearing, the BOCC adopted Resolution 

2003-28 creating Fire District No. 1 in Leavenworth County. The resolution also 

approved the Agreement between Lansing, Delaware, and High Prairie, as the constituent 

parts of the Fire District, and delegated Leavenworth County's role in supervising and 

operating the affairs of the district as contemplated by the Agreement. Notably, the 

resolution expressly invoked the provisions of K.S.A. 19-3601 et seq., the statutory 

sections allowing counties to create fire districts, as its authority for the BOCC's action.

Fifteen years after the creation of the Fire District, on June 28, 2018, the Lansing 

City Council provided written notice to Delaware and High Prairie of its decision to 
5

terminate its relationship with the Fire District. The exact intended effect of this written 

notice has been disputed by the parties. Lansing argues it merely sought to terminate its 

participation under the Agreement but fully expected that Delaware and High Prairie 

might wish to continue participation in the Fire District under the Agreement. To the 

contrary, Delaware and High Prairie believed that Lansing was seeking to dissolve or 

alter the Fire District. 

In response to Lansing's notice, Delaware and High Prairie filed a petition for 

declaratory judgment in the district court seeking to stop the dissolution or alteration of 

the Fire District. The townships argued that under K.S.A. 19-3604, a fire district may 

only be disorganized when the board of county commissioners that created the fire 

district, after receiving a proper petition by county residents, adopts a resolution to 

disorganize a fire district. The townships argued that this did not occur here, and the 

sections of the Agreement that purported to allow unilateral dissolution of the Fire 

District were contrary to the law. Lansing filed its answer and included a counterclaim, 

seeking a declaration that the Agreement was a lawful and enforceable contract and that 

Lansing's written notice was sufficient to terminate the Agreement.

The parties presented the district court with a set of stipulations as to the salient 

facts, and the court heard arguments on the petition for declaratory judgment. Based on 

those stipulations, the district court entered its order on the petition for declaratory 

judgment in November 2019. 

After determining that there was an actual controversy, allowing the district court 

to adjudicate the issue, the court decided, in short, that despite the language in the 

Agreement, only the BOCC could dissolve the Fire District and that Lansing's notice was 

ineffective to circumvent BOCC's authority. As part of its decision, the district court held

that the statutes authorizing the creation of a fire district "are statutes of universal 

application in the State of Kansas" and, therefore, the Kansas home rule does not allow 
6

municipalities to deviate from the statutes on the creation, alteration, or disorganization 

of a fire district. As the district court saw it, only the BOCC had the power under the 

statutes to alter or dissolve the Fire District, but it could not initiate the alteration or 

dissolution without first receiving a petition to do so. Because the BOCC could not 

unilaterally initiate the alteration or dissolution of a fire district, the district court 

determined that the BOCC could not "empower or authorize a city or township to do so 

by interlocal agreement." As part of its order, the district court held that "[a]n 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." 

Given those determinations, the district court held that Lansing's notice did not 

disorganize or alter the Fire District. Instead, if Lansing wanted to withdraw from the Fire 

District, the district court determined that it had to follow the procedure set out in K.S.A. 

19-3604. 

Lansing filed a motion to alter or amend the judgment, which the district court 

denied. Lansing has timely appealed from the district court's rulings.

ANALYSIS

In order to address the pertinent issues of this case, the relevant statutes and the 

Agreement and documents surrounding the Agreement need to be set out more fully.

Kansas law permits counties to create fire districts.

The creation of a fire district is governed by K.S.A. 19-3601 et seq.

K.S.A. 19-3601 authorizes and empowers "[t]he board of county commissioners of 

any county of the state . . . to organize one or more fire districts in any portion of the 
7

county not within an incorporated city . . . and any city of the second and third classes 

may be included within such district." The same statute provides that the "board of 

county commissioners of the county shall be and constitute the governing body of each 

fire district within the county." K.S.A. 19-3601.

The powers of the governing body of a fire district are listed in K.S.A. 19-3601a. 

The governing body has the power to:

"(a) Enter contracts;

"(b) acquire and dispose of real and personal property;

"(c) acquire, construct, reconstruct, equip, operate, maintain and furnish 

buildings to house fire fighting equipment;

"(d) acquire, operate and maintain fire fighting equipment;

"(e) issue bonds as provided in this act;

"(f) pay compensation and salaries to fire district employees;

"(g) pay compensation to volunteer members of the fire district for fighting fires, 

responding to emergencies or attending meetings;

"(h) exercise eminent domain;

"(i) pay the operation and maintenance expenses of the fire district and any other 

expenses legally incurred by the fire district;

"(j) pay for the acquisition, installation or maintenance of one or more fire 

hydrants, or similar devices for fighting fires, including necessary equipment, services or 

supplies related thereto.

"The acquisition, installation and maintenance shall be subject to the mutual 

agreement of the governing body of the fire district and the governing body of the rural 

water district which owns, operates or maintains the water line on which the fire hydrant, 

or other similar device for fighting fires, is to be installed; and

"(k) do all other things necessary to effectuate the purposes of this act." K.S.A. 

19-3601a.

A board of county commissioners may organize its county into one or more fire 

districts upon the board's own motion "by the adoption of a resolution at some regular or 
8

adjourned regular meeting of the board." K.S.A. 19-3602. The board may also adopt a 

resolution in the same manner if a sufficient petition is made by county residents seeking 

the creation of a fire district. K.S.A. 19-3603.

The statutes also explain the procedure for disorganizing a fire district. Under 

K.S.A. 19-3604(a):

"Any fire district may be disorganized by the board of county commissioners at 

any time after four years from the date of the publication of the final resolution for the 

first organization of such district upon a petition to the board and the making of an order 

in like manner as in the case of organizing any fire district under K.S.A. 19-3603, and 

amendments thereto." (Emphasis added.)

The same statute discusses altering an existing fire district to include new lands or 

exclude lands already included in the fire district. In order to do so, "a petition to the 

board of county commissioners signed by the owners of at least 10% of the area" seeking 

to join or leave the fire district, must be created. K.S.A. 19-3604(b). If the petition is 

sufficient, the board may adopt and publish a resolution to effectuate the petition. 

However, a petition protesting the alteration signed by owners of "more than 19% of the 

area of the lands" involved can veto the resolution. K.S.A. 19-3604(b).

Under K.S.A. 2019 Supp. 19-3605, a city within or adjoining the boundaries of a 

fire district may be included in the fire district if the city's governing body deems it 

advisable and the board of county commissioners agrees.

Pertinent to this case, after a board of county commissioners has created a fire 

district, it "may appoint a board of trustees of not less than three members and not more 

than nine members." K.S.A. 19-3612a(a). The board of trustees "may be vested with all 

of the powers theretofore vested in the board of county commissioners, or such 

supervisory powers as the board of commissioners, by resolution, may delegate, and the 
9

board of trustees may exercise all powers so delegated." K.S.A. 19-3612a(a). If an 

interlocal agreement permits, the board of county commissioners may also delegate its 

authority to choose the members of the board of trustees to a joint board appointed by the 

governments of the cities and townships located within the fire district. K.S.A. 19-

3612a(b).

The interlocal agreements contemplated by the statute are addressed in the 

Interlocal Cooperation Act, K.S.A. 12-2901 et seq., which seeks "to permit local 

governmental units to make the most effective use of their powers by enabling them to 

cooperate with other localities, persons, associations and corporations on a basis of 

mutual advantage." K.S.A. 12-2901. Under the act, any power or powers of a public 

agency—including fire districts, counties, townships, and cities—"may be exercised and 

enjoyed jointly with any other public agency of this state or with any private agency." 

K.S.A. 12-2904(a).

An interlocal agreement between public agencies is required to specify, among 

other things, its duration, and the "permissible method or methods to be employed in 

accomplishing the partial or complete termination of the agreement and for disposing of 

property upon such partial or complete termination." K.S.A. 12-2904(d)(1), (5). The 

statute also requires the agreement to specify "[a]ny other necessary and proper matters." 

K.S.A. 12-2904(d)(6). In addition, many types of interlocal agreements, including the one 

in this case, must be approved by the attorney general. See K.S.A. 12-2904(g). The 

Agreement in this case was approved by the Kansas Attorney General's Office.

The Leavenworth BOCC creates Fire District 1.

In May 2003, the BOCC adopted a resolution with the intent of creating the Fire 

District, as required by K.S.A. 19-3602. A month later, Lansing's governing body 

adopted a resolution approving a petition to have Lansing included in the Fire District, as 
10

required by K.S.A. 19-3605. The parties then executed the Agreement, which 

encompassed the BOCC's creation of a board of trustees provided for in K.S.A. 19-

3612a(a) as well as an interlocal agreement under K.S.A. 12-2904 between Lansing, 

Delaware, and High Prairie to create a joint board that granted the BOCC's power to 

appoint the members of the board of trustees under K.S.A. 19-3612a(b). In the 

Agreement, the BOCC delegated "its authority to appoint the members of the Fire 

District Board of Trustees to a joint board appointed by the governing bodies" of the 

municipalities within the Fire District. In the resolution creating the Fire District, the 

BOCC delegated to the Board of Trustees, "[a]ll powers and duties of the Board of 

County Commissioners conferred upon them by the provisions of K.S.A. 19-3601, et 

seq., regarding the management and control of said Fire District."

The district court properly ruled that Lansing could not unilaterally alter or dissolve the 

Fire District.

With the preceding sections as background, we now turn to the issues in this case. 

The first issue to address is whether Lansing could unilaterally alter or dissolve the Fire 

District through its notice. Lansing does not address this issue directly and instead argues 

that the Fire District was not created under K.S.A. 19-3601 et seq. Additionally, Lansing 

contends the district court's determination that the interlocal agreement cannot require the 

disposition of Fire District property was incorrect. The other parties disagree with 

Lansing's interpretations.

The standard of appellate review is de novo for cases decided by the district court 

based upon documents and stipulated facts. Rucker v. DeLay, 295 Kan. 826, 830, 289 

P.3d 1166 (2012).

To the extent we must interpret the Agreement and surrounding documents, we

exercise unlimited review. See Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 (2016). 
11

Contracts are presumed legal. The burden lies on the party challenging the contract to 

prove it is illegal. Frazier v. Goudschaal, 296 Kan. 730, 749, 295 P.3d 542 (2013).

We also exercise unlimited review over questions of statutory interpretation. 

Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). The most 

fundamental rule of statutory construction is that the intent of the Legislature governs if 

that intent can be ascertained. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 

367 P.3d 282 (2016).

As we alluded to above, the district court determined that while Lansing stated that 

it merely sought to terminate the Agreement through its notice, the actual content of the 

notice was more akin to Lansing seeking to alter—by leaving—or to disorganize the Fire 

District. The record supports the district court's finding. Lansing's notice included 

language indicating it was prepared to begin an apportionment of the property as outlined 

in the Agreement. The content of the notice, coupled with Lansing's interest in 

"municipal fire protection," convinced the district court that Lansing was seeking, at the 

very least, to withdraw from the Fire District. 

But Lansing could not unilaterally alter or dissolve the Fire District through its 

notice, even if the Agreement purported to allow such an action. Under K.S.A. 19-

3604(a), a fire district can only be disorganized by the county commissioners upon a 

petition to do so and an order made "in like manner as in the case of organizing any fire 

district." Similar restrictions apply for the alteration of a fire district. Under K.S.A. 19-

3604(b), a fire district can only be altered "upon a petition to the board of county 

commissioners signed by the owners of at least 10% of the area of the lands sought to be 

included or excluded." After such a petition, the board of county commissioners "may

adopt and publish a resolution attaching or detaching the lands described in the petition or 

from the fire district." (Emphasis added.) K.S.A. 19-3604(b). This language clearly grants 

county commissioners the discretion to alter or decline to alter a fire district.
12

The record shows no such petitions to the Leavenworth BOCC or any resolution 

by the BOCC which would allow Lansing to alter or disorganize the Fire District. Since 

the Fire District was clearly created under K.S.A. 19-3601 et seq., Lansing could not 

unilaterally alter or dissolve the Fire District through its notice. However, that does not 

mean the notice did nothing. The Fire District and the Agreement are separate things.

Lansing's notice to terminate could not force a disposition of Fire District property.

Lansing argues that the district court erred in finding that its notice to terminate 

the Agreement could not be used to force a disposition of Fire District property under the 

terms of the Agreement. Lansing contends that the Interlocal Cooperation Act requires a 

disposition of property section and that the Agreement in this case complied with the law. 

As noted above, we exercise de novo review on this issue also.

Section 10.a. of the Agreement acknowledges that the power to disorganize the 

Fire District remained with the BOCC. Section 10.b., however, provides that "any party 

may terminate this agreement" by providing proper notice. If the Agreement is

terminated, then section 10.c., which governed disposition of property, takes effect.

That section states that the "property utilized and or owned by the Fire District 

shall be disposed of" as set out by subsections 1. and 2. Subsection 10.c.1., as mentioned 

above, refers back to Paragraph 8 of the Agreement and dictates that property referenced 

there "shall be disposed of in accordance with the terms of that section."

However, Paragraph 8 does not discuss the distribution of property in a situation 

like the one here. Instead, it primarily discusses the various buildings and equipment 

being brought into the Fire District by the parties and how they would be leased or 

purchased by the Fire District. 
13

Because no property is disposed of under subsection 10.c.1., the residual clause in

subsection 10.c.2., which governs the disposition of "[a]ll other assets of the Fire 

District," would control. Under subsection10.c.2., the property would be apportioned 

between the parties based on the valuation of each party as compared to the valuation of 

the Fire District as a whole. 

A disposition of all Fire District assets after a party withdrew from the 

Agreement—Lansing's stated intent—seems nonsensical because the Fire District itself 

continues to exist. The Fire District continues to need and use the property that would be 

disposed of. If Lansing instead sought to disorganize, or withdraw from, the Fire District, 

the disposition of Fire District property seems more understandable. But it then runs into 

another set of issues. Essentially, Lansing would be attempting to unilaterally withdraw 

from the Fire District, which is still serving an important public function, and would be 

gutting the Fire District's ability to continue to serve that function as it left. 

Under Kansas law, a contract is void as against public policy if the contract is 

"'injurious to the interests of the public or contravenes some established interest of 

society.'" In re Marriage of Traster, 301 Kan. 88, 105, 339 P.3d 778 (2014). Stated 

another way, a contract is against public policy if it is "'injurious to the interests of the 

public . . . or tends to interfere with public welfare or safety.'" 301 Kan. at 105 (quoting 

Brenner v. Oppenheimer & Co., 273 Kan. 525, 548, 44 P.3d 364 [2002]).

It is not hard to see that the Agreement, if followed as written, is injurious to the 

interests of the public. Allowing a party to unilaterally disorganize, or disassociate from, 

a fire district and force a disposition of the fire district's property places the public in a 

state of heightened danger. The public's safety and welfare are jeopardized. This is most 

readily apparent where one party merely attempts to disassociate from the fire district and 

force a disposition of fire district property—Lansing's stated purpose—because the fire 

district continues to operate, but it does so with fewer resources.
14

Because the Agreement's property disposition provisions contravene public policy, 

the court should sever them from the contract. "A contract that contains valid and invalid 

provisions in which the lawful provisions can be easily severed will be upheld as to the 

lawful portion." Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 462, 790 

P.2d 404 (1990). Here, Lansing is certainly free to terminate the Agreement through its 

notice. But terminating the Agreement cannot disassociate Lansing from the Fire District, 

nor can it disorganize the Fire District. Terminating the Agreement also cannot force a 

disposition of Fire District property. The provisions of the Agreement mandating a 

disposition of property upon termination of the Agreement must be severed from the 

Agreement.

Part of the problem here is that the Agreement tries to do too much. Under K.S.A. 

19-3612a(b), the interlocal agreement is really only necessary to allow the "board of 

county commissioners [to] delegate its authority to appoint the members of the fire 

district board of trustees to a joint board appointed by the governing bodies of cities and 

townships located within the fire district." While K.S.A. 12-2904(d) may require an 

interlocal agreement to contain information about the disposition of property, that does 

not necessarily mean the interlocal agreement is required to govern the disposition of fire 

district property, since the interlocal agreement was only necessary to delegate the 

authority to appoint trustee members—something that does not involve property. The 

interlocal agreement is not what creates a fire district. Instead, the interlocal agreement is 

only needed for the county commission to delegate its authority to appoint members of 

the fire district board of trustees. See K.S.A. 19-3612a(b).

Although this a clear case of statutes being in conflict, in this situation we believe 

the powers unambiguously granted to county commissions over the creation, dissolution,

and alteration of fire districts are superior to the provisions of interlocal cooperation 

agreements, even those agreements, as here, which were specifically approved by county 
15

commissions. We are convinced that county commissions simply cannot contract away 

their plenary powers under K.S.A. 19-3601 et seq.

However, Lansing's notice still serves to terminate the Agreement. The required 

notice was sent, and the other provisions of the Agreement presumably remained in effect 

until termination. As a practical matter, the Fire District remains in operation, but the 

joint board no longer determines who serves on the board of trustees.

It is unnecessary to reach Lansing's argument about its rights under its home rule 

powers.

In its final issue on appeal, Lansing argues that the BOCC could not have created 

the Fire District under K.S.A. 19-3601 et seq. and that the Fire District was instead 

created by the Agreement through the utilization of home rule powers. In an amicus brief,

the League of Kansas Municipalities urges this court to find that the district court erred 

when it determined that municipalities cannot contravene statutes of statewide 

application. Instead, the amicus curiae argues that the key distinction is whether the 

relevant statutes are uniform throughout the State.

We note that Lansing failed to raise this issue before the district court reached its 

initial decision. However, in light of our holding that the power to create, dissolve, or 

alter fire districts to include new lands or exclude lands resides exclusively with Kansas 

boards of county commission under K.S.A. 19-3601 et seq., we find it unnecessary to 

address Lansing's home rule argument in this appeal. 

Affirmed.