photo by: Nick Krug

The former Borders building located at the southeast corner of Seventh and New Hampshire streets is pictured Wednesday, Feb. 28, 2018.

Developers who want to build a grocery store and apartments in downtown Lawrence have won another legal victory against opponents of the project who live in a neighboring condominium unit.

The Kansas Court of Appeals on Friday upheld the developers’ right to proceed with plans to convert the former Borders bookstore property at Seventh and New Hampshire streets, despite objections from the owners of a condo in the nearby Hobbs Taylor Lofts.

The controversy stems from a restrictive covenant that was put on the property in 1997 when the entire east side of the 700 block of New Hampshire was owned by a company called Winter Inc.

According to the appellate court’s description of the facts of the case, Winter divided the block into two parcels: one for a Borders bookstore and parking lot; and another, called the “development parcel,” for a combination retail, office and residential building.

Anticipating that the property might one day be sold or further subdivided, the covenant said that any replacement of the Borders building could not expand beyond its existing footprint, and that the property could not be developed for a grocery store, other than a gourmet food market.

It further stated that the covenant could not be changed without the consent of all of the owners of the two parcels.

In 2003, Winter sold the development parcel to 8th & New Hampshire LLC, which developed what is now the Hobbs Taylor Lofts. That group then executed a change to the covenant with Winter, establishing itself as the sole representative of the development parcel.

In 2006, Brent and Lisa Flanders bought a condominium unit in the lofts and later transferred its title to a family trust.

The Borders bookstore closed its doors in 2011, along with 200 other stores around the country, after the retail chain filed for bankruptcy. Eventually, in May 2015, Treanor Investments LLC — a group that includes local businessmen Doug Compton and Mike Treanor — bought that property and executed another change to the covenant, clearing the way for development of a downtown grocery store.

The Flanders family objected and filed suit in Douglas County District Court, arguing that the first change in the covenant was invalid and that the 8th & New Hampshire group had no right to designate itself as the sole representative of the development parcel. They also argued that the group had no right to approve the second change allowing a grocery store to go in on the other parcel without their consent.

Last year, Douglas County District Court Judge Kay Huff dismissed that suit, saying the changes to the covenants were valid. On Friday, the Court of Appeals affirmed that decision, saying the “clear and unambiguous terms” of the covenants made the 8th & New Hampshire group the sole representative of the entire parcel.

Bill Fleming, an attorney who represents Treanor, said in a phone interview Friday that plans for the grocery store are proceeding. He said Treanor is still working with the city on details of the development plan, and it is negotiating with Price Chopper to operate the grocery store.

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