Gunkel v. City of Emporia, Kan.

• Decision Date: 29 December 1987
• Docket Number: No. 86-1891,86-1891
• Citation: 835 F.2d 1302
• Parties: Calvin L. GUNKEL and Mildred A. Gunkel, Plaintiffs-Appellants, v. CITY OF EMPORIA, KANSAS and Russell Schoenberger, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1302

835 F.2d 1302

Calvin L. GUNKEL and Mildred A. Gunkel, Plaintiffs-Appellants, v. CITY OF EMPORIA, KANSAS and Russell Schoenberger Defendants-Appellees.

No. 86-1891.

United States Court of Appeals Tenth Circuit.

Dec. 29, 1987.

Fred W. Phelps, Jr., Phelps--Chartered, Topeka, Kan., for plaintiffs-appellants.

Wyatt M. Wright, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendants-appellees.

Before McKAY, LOGAN and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiffs/Appellants Calvin and Mildred Gunkel ("the Gunkels") brought a 42 U.S.C. Sec. 1983 (1982) action along with pendent state claims against the city of Emporia, Kansas, and Russell Schoenberger, the city's zoning coordinator (collectively "Emporia"). The district court granted Emporia's motion for summary judgement on the section 1983 claim and dismissed the state law claims. ¹ For the reasons below we affirm that judgment. ²

I.

Emporia zoning regulations require that every city lot have frontage on a city street. Further, lots must have specified street frontages before a building permit will be granted to build particular structures on those lots. Of relevance to this suit is Emporia's requirement that single-family attached housing ³ have twenty-two feet of frontage on a city street.

On February 4, 1983, the Gunkels purchased approximately the front half of lot 10 block 3 of Westridge Estates Addition in the City of Emporia. This front section of lot 10 is referred to in the record as lot 10 tract one, and the back half of lot 10, which the Gunkels did not purchase at this time, is referred to in the record as tract two. This purchase left the back half of lot 10 (tract two) unimprovable because it had no frontage.

Lot 10 was in a city zoning district which permitted the construction of single-family or two-family dwellings. Accordingly, in the spring of 1983 the Gunkels built a duplex on tract one. They subsequently sold the back half of the duplex and the back half of their property (referred to in the record as tract 1B) to Edward and Lisa Benton, representing it to be single-family attached as opposed to duplex housing. On August 10, 1983, the Gunkels entered into a contract with Joseph and Debra Baker to sell to them the front half of the duplex (tract 1A) under a similar arrangement. The execution of the contract called for the Bakers to obtain another piece of property (which turned out to be tract two) and trade it to the Gunkels as a downpayment for the tract 1A duplex unit.

On August 29, 1983, Mr. Gunkel applied for a building permit to build another structure on tract two. Neither the Gunkels nor their attorney recalls informing the city at or before this time that the Gunkels were not the sole possessors of lot 10. See Deposition of Calvin L. Gunkel at 105-06, 111, 120; Deposition of Robert Symmonds at 28-29; Deposition of Mildred A. Gunkel at 19-20. A building permit for a duplex was issued on that date. On August 31, the Gunkels conveyed the front duplex (tract 1A) to Joseph and Debra Baker. On September 1, 1983, the Bakers purchased tract two of lot 10 and deeded it to the Gunkels. All deeds involved in this transaction were recorded on September 2, 1983. ⁴ Thereafter, the Gunkels began construction on what they apparently believed to be single-family attached housing on tract two of lot 10. ⁵ The city, after discovering related problems on neighboring lots, inspected the multiple titles to lot 10 and revoked the Gunkels building permit on December 9, 1983 because tract two of lot 10 had no street frontage as required by Emporia ordinances.

The Gunkels argue that Coordinator Schoenberger was fully informed of all of their construction plans and the configuration and ownership of lot 10 and that he knowingly approved the project and issued the building permit to begin construction. As a result of Schoenberger's alleged knowledge the Gunkels claim that the building permit was legally issued, that they had a property right in the permit, and that they were denied their civil rights when it was revoked without notice or hearing.

II.

Before a successful claim can be brought under 42 U.S.C. Sec. 1983, a plaintiff must demonstrate that he has been deprived of a federal right, and that the right's deprivation was under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). In this case there is no question that the building permit was revoked pursuant to a city zoning regulation. ⁶ Accordingly, the revocation was under color of state law. The question remains whether the Gunkels had a property right in the building permit which would entitle them to the due process guaranteed by the United States Constitution before the city cancelled the permit.

As the Supreme Court has noted, property interests are not created by the Constitution. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). And, although "mutually explicit understandings" can be sufficient to create such property rights, Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699-700, 33 L.Ed.2d 570 (1972), "the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) ("The hallmark of property ... is an individual entitlement grounded in state law.").

In this case the district court determined that Kansas state law does not recognize property rights in building permits which have been issued by mistake or in violation of state law. ⁷ Thus, because tract two did not comply with the twenty-two feet frontage requirement, and because the Gunkels were unable to show to the court, even with all reasonable inferences drawn in their favor, that the permit was issued pursuant to a mutual understanding with Schoenberger exempting them from this requirement, the district court found that the permit was issued by mistake or in violation of the law. As a result, the Gunkels had no property right in the permit and the city could revoke it without notice or hearing. Gunkel, 634 F.Supp. at 349. The Gunkels claim that in so ruling the district court erred in one major respect--it impermissibly weighed disputed facts in determining that the building permit was illegally issued or issued under a mistake of fact. ⁸ The Gunkels argue that the evidence was sufficient for a reasonable jury to infer that Schoenberger was fully aware of all the relevant occurrences on lot ten before he issued the building permit.

Nonetheless, we note, as did the district court, that under Kansas law it makes no difference whether there was a mutual agreement between Schoenberger and the Gunkels excepting them from enforcement of the zoning regulations. The Gunkels still had no property right in the cancelled building permit. Mr. Gunkel admits having read provisions of the Uniform Building Code, see Deposition of Calvin L. Gunkel at 133-36, which authorize the city's building official to "suspend or revoke a permit issued under the provisions of this code whenever the permit is issued in error or on the basis of incorrect information supplied, or in violation of any ordinance or regulation or any of the provisions of this code." Unif.Building Code Sec. 303(e) (1982). This same code section, which was also read by Gunkel, further indicates that:

[t]he issuance or granting of a permit or approval of plans and specifications shall not be construed to be a permit for, or an approval of any violation of, any of the provisions of this code or of any other ordinance of this jurisdiction. No permit presuming to give authority to violate or cancel the provisions of this code shall be valid.

Id. Sec. 303(c) (1982) (emphasis added). Further, in signing the building permit application Mr. Gunkel obligated himself to "construct said structure in accordance with all requirements of the Ordinance (sic) of the City of Emporia, Kansas, whether herein specified or not." Deposition of Calvin L. Gunkel, Ex. 11. The Gunkels fail to cite any authority which suggests that Schoenberger has the authority to set the zoning and construction regulations himself, ⁹ and all of the operative ordinances suggest that building permits are valid only when construction specifications comply with applicable regulations and codes. The Gunkels also fail to allege that the city had a custom or practice of allowing Coordinator Schoenberger to selectively enforce building and zoning regulations in the issuance of building permits.

Given that Emporia city ordinances explicitly invalidate building permits which violate city ordinances even if they were knowingly issued by a building official, and given that the Gunkels' permit was issued in violation of such ordinances, it is difficult to accept the Gunkel's argument that state law grants them a property right in the permit. Even if the Gunkels had entered into an agreement with Schoenberger to avoid the zoning laws, it would not make the resulting building permit lawful.

Since the permit was not validly issued there is no property right in it under Kansas law. Thus, revocation of the permit without...