dissenting: I must dissent from the majority opinion filed in this action.
On April 20, 1990, this court filed its opinion in Allen Realty, Inc. v. City of Lawrence, 14 Kan. App. 2d 361, 790 P.2d 948 (1990). That decision remanded the matter to the trial court with directions to remand to the City Commission for a new hearing on the application for a demolition permit. The trial court complied with the directions of the remand and so did the City. The City conducted a second hearing on the demolition permit and, at the conclusion of that hearing, made a decision that the permit should be issued.
Approximately one and one-half years later, we again find fault with the City’s conduct in making a decision on a purely local matter. The second hearing held by the City Commission did not satisfy the majority of this court, and we are again remanding for the City to conduct a third hearing on the subject. The third time under these circumstances is definitely not the charm. .
Allen Realty purchased this property in 1976. The structure in question is not on the register of historic places; it is just close to one that is. In this context, it is certainly too close for comfort.
In my judgment, we are preventing Allen Realty from dealing with a piece of property which it owns and with which it wishes to deal in a lawful manner. Allen Realty desires to destroy the structure in question. It undoubtedly has that right under the laws and constitutions of the United States and the State of Kansas. It is difficult to understand why a property owner is not permitted, after all this time and two hearings on the subject, *109to destroy a dangerous, deteriorating, and unsafe structure. In the interest of historic preservation, we appear to be perpetuating the existence of a structure inspected by the Lawrence Fire Department in 1988 and found to be unsafe. We continue to do so despite the fact that the Lawrence City Commission has made a sincere effort on two occasions to conduct a hearing on whether Allen Realty should be issued a demolition permit.
The majority opinion concludes that the City’s action in granting the permit was arbitrary and capricious. One of the key factors in that determination was the City’s failure to give “special notice” to KSHS and LPA of the City Commission meeting at which the demolition permit was to be discussed.
We fault the City for not giving a notice that it was not required by statute to give. Indeed, the majority opinion concedes: “On appeal, KSHS and LPA do not argue that the City failed to comply with the notice provisions of K.S.A. 75-2724(a).” In other words, the majority has invented a notice requirement which did not exist and holds that the City’s failure to comply with our recently invented requirement renders its decision arbitrary and capricious. I consider this to be illogical.
We deal here with an interference in the right of a private owner to make use of his property. This interference is permitted by virtue of legislation enacted by the Kansas Legislature. Without the existence of the Kansas Historical Preservation Act, K.S.A. 75-2715 et seq., the interference with Allen Realty’s decision to demolish its own property would not be permitted. Accordingly, it is my opinion that such interference should be limited strictly by the provisions of the Kansas Historical Preservation Act.
K.S.A. 75-2724 states that notice to KSHS must be given at two specific times: (1) upon receipt by the City of its application for the permit; and (2) if a determination is made by the City Commission that no feasible and prudent alternative exists, then by certified mail after the hearing at which the determination was made, but at least five days prior to issuance of the permit. These are the only notices required by statute; to create any other notice is not acceptable.-
*110The first notice required by the statute was given in May 1988. The statute does not require any additional notice prior to the hearing that is required by statute.
The only other notice required must be given after the hearing. That notice was also given. The record clearly shows that all notices required by the Kansas Historical Preservation Act were given. It is unacceptable for this court to require, by judicial fiat, additional notice and to hold that proceeding without such notice is to act arbitrarily and capriciously. This is a matter created by statute, and the procedure to be followed is specifically set forth by statute in the Kansas Historical Preservation Act. There is no logical or legal basis for this court to create additional procedural requirements not set forth by statute.
The record further shows that at least LPA had actual notice of the hearing conducted by the City Commission. It had sufficient notice to prepare a letter and mail it in a timely fashion, requesting that the City Commission grant it a continuance. The request for a continuance was denied, but the fact is that LPA was present at the public hearing held on the application for a demolition permit. LPA was present at the hearing, and, yet, it offered not one piece of evidence to indicate that the City should not grant the demolition permit. In fact, LPA offered nothing pro or con to assist the City Commission in making this difficult decision. It is ludicrous to say that the lack of notice prevented LPA from providing evidence at the City Commission meeting. Let us not forget that this organization has been fighting Allen Realty’s desire to demolish the building in question since 1988. Over that period of time, surely 1 ,PA has gathered some relevant and material evidence which would have a bearing on whether the demolition permit should be issued. If it had, it did not offer that evidence to the City Commission. It is my judgment that, having acted in that manner, LPA is in no position to insist that Allen Realty be further frustrated in dealing with its property and that a third City Commission meeting be had on the subject. It does not seem to me to be logical that, under the facts shown, this organization should be permitted to frustrate the legitimate aims of a property owner in the State of Kansas.
The majority opinion speaks eloquently of due process and of the opinion of the majority of this panel that the fundamental *111due process rights were denied to the opponents of Allen Realty. I strongly disagree.
As pointed out earlier, LPA had actual notice of the hearing and was in a position to offer evidence at the hearing; it simply failed to do so. In my opinion, the record does not support a conclusion that LPA was denied any due process rights which it may have.
We are not dealing here with a constitutional right to interfere in a property owner’s decision concerning how he would deal with his property. We are, rather, dealing with a statutory right, which has been granted KSHS, and that statutory right permits KSHS to be given notice and to play a role in the decision of the property owner to demolish the property. The requirements of the statute have been complied with; KSHS has had all of the notice required by statute, as has LPA. It does not appear to me that KSHS or LPA should have any greater due process rights in this matter than granted to those organizations by statute. The rights to notice and an opportunity to be heard, which are granted by statute, were complied with. To hold that KSHS and LPA have any greater rights to notice and an opportunity to be heard than are granted by the Kansas Historical Preservation Act is neither sound nor justified under the circumstances.
I would affirm the decision of the City Commission and reverse the decision of the trial court. I would hold that all of the requirements set forth by the Kansas Historical Preservation Act relating to notice and opportunity to be heard were fully complied with. The decision of the City Commission to grant the permit is sound and based on substantial evidence. There is no basis for a conclusion that the City acted arbitrarily and capriciously. Its decision to issue the demolition permit should be affirmed. Continued judicial interference with the property rights of Allen Realty is unwarranted. The decision of the majority rewards LPA for not participating in the hearing that was held and guarantees another two years of protracted litigation. The demolition permit should be issued and this matter brought to an end.