Dowling Realty v. City of Shawnee, 90,078.

• Decision Date: 12 March 2004
• Docket Number: No. 90,078.,90,078.
• Citation: 32 Kan.App.2d 536,85 P.3d 716
• Parties: DOWLING REALTY, a Kansas General Partnership, and DAVID F. DOWLING, D.D.S., P.A., Appellants, v. CITY OF SHAWNEE, KANSAS, and MIDWEST HOLDINGS, LLC, Appellees.
• Court: Kansas Court of Appeals

32 Kan.App.2d 536

85 P.3d 716

DOWLING REALTY, a Kansas General Partnership, and DAVID F. DOWLING, D.D.S., P.A., Appellants, v. CITY OF SHAWNEE, KANSAS, and MIDWEST HOLDINGS, LLC, Appellees.

No. 90,078.

Court of Appeals of Kansas.

Opinion filed March 12, 2004.

Deron A. Anliker and John M. Duggan, of Duggan, Shadwick, Doerr & Kurlbaum, P.C., of Overland Park, for appellants.

Marvin E. Rainey and Chad E. Humble, of Rainey & Rainey, of Shawnee Mission, for appellee City of Shawnee.

Mark R. Logan and Kevin L. Bennett, of Law Offices of Kevin L. Bennett, P.A., of Shawnee, for appellee Midwest Holdings, LLC.

Before GREEN, P.J., MARQUARDT and MALONE, JJ.

MARQUARDT, J.:

David F. Dowling, D.D.S., P.A., appeals the trial court's approval of Midwest Holdings, LLC's (Midwest) proposed development of Lot 1 near the corner of 75th and Quivera. We affirm in part, dismiss in part, reverse in part, and remand with directions.

Dr. Dowling, a dentist since 1979, was interested in the four lots located across the street from his office near the corner of 75th Street and Quivera in Shawnee, Kansas. Lot 1 had an abandoned Quik Trip convenience store on it and Lots 2, 3, and 4 were vacant. In 1990, Dr. Dowling purchased Lot 2. A couple of years later, Dr. Dowling purchased Lots 3 and 4. The lots were platted and the area was named Fenton Professional Plaza in honor of Dr. Dowling's father. Dr. Dowling planned a series of tiered office buildings for the lots so each building would have visibility from 75th Street.

Dr. Dowling constructed an office building on Lot 2 with approximately 6,400 square feet on the main level and 6,000 square feet on the lower level. Dr. Dowling built as close to the south property line as the City of Shawnee, Kansas (City) would allow because visibility from 75th Street was important to him. Dr. Dowling shares the building with a chiropractor, a family practitioner, and an insurance broker. Lots 3 and 4 remain undeveloped.

In 2001, Dr. Dowling was "[s]hocked and surprised" when he found out that a large development was proposed for Lot 1. Dr. Dowling immediately contacted Paul Chaffee, the head of the City's planning department, to express his concerns about the development. Chaffee told Dr. Dowling that the site would be "hard to develop." Dr. Dowling asked Chaffee to keep him apprized of any activity regarding the property.

In June 2001, Kevin Tubbesing, a neighbor of Chaffee's, asked him about the process for getting a site plan approved. In the summer of 2001, Tubbesing entered a contract to purchase Lot 1; however, at some point, Midwest became the owner. Tubbesing is a 55 percent owner of Midwest. On August 29, 2001, a site plan application was filed which listed Midwest as the owner and developer with Tubbesing named as the contact person. The plan required approval from the Shawnee Planning Commission (Commission). Tubbesing has been a member of the Commission since June 2000.

Within 15 days after receiving the site plan application, the City's planning staff recommended that Midwest's plan be approved with minor modifications. The proposal was placed on the consent agenda for the September 17, 2001, Commission meeting. The recommendation was available to Commission members on September 14, 2001. Tubbesing testified that members of the public could have learned of the recommendation on that date. However, there is no evidence in the record on appeal that Dr. Dowling knew about the recommendation.

Dr. Dowling received a copy of the September 17th Commission agenda on September 17, 2001. When the consent agenda was announced, Dr. Dowling objected and asked that Midwest's proposal be removed from the consent calendar and that it be discussed. Dr. Dowling stated that the proposed building would have "such a negative impact" upon his property. Tubbesing agreed that the proposed building would likely block the view of Dr. Dowling's building from 75th Street. Midwest's proposal was scheduled to be heard on the same evening as Deffenbaugh Industries, Inc.'s (Deffenbaugh) proposal regarding a landfill. The Deffenbaugh proposal was described as "acrimonious" and "conflict oriented"; consequently, Midwest's proposal was not considered until after midnight. According to a conversation that Tracy Thomas, a member of the Shawnee City Council (Council), had with Tubbesing prior to the September 17, 2001, meeting, Thomas asked Tubbesing whether the Commission was going to be tired after the Deffenbaugh matter; Tubbesing said, "That's my strategy, to put it on at the end of the meeting and they'll be tired and sail right through."

After the staff recommendation was presented, Dr. Dowling was given the opportunity to address the Commission. At the completion of Dr. Dowling's presentation, Tubbesing stepped down from the Commission bench and argued to the rest of the Commissioners in favor of Midwest's proposal. Dr. Dowling did not know Tubbesing, and he testified that Tubbesing did not identify himself for the record as a member of the Commission, nor did he disclose his 55 percent ownership in Midwest. Tubbesing stated that he told the Commission he was the owner of the property; however, the transcript states only that he was "general managing member of Midwest" and "developer of the project."

Even though Tubbesing never left the room during any of the proceedings, he did not vote on Midwest's proposal. Tubbesing never filed a disclosure of interest form pursuant to K.S.A. 75-4305. Midwest's proposal was approved by a vote of 7 to 2.

Mark Boettcher, a member of the Council, observed the September 17, 2001, meeting and was left with the impression that the approval of Midwest's proposal was not "exactly kosher." Boettcher found it troubling that a commissioner would address his own deal and believed that the process seemed "hurried up." He questioned whether the Commission fully investigated the matter.

Through the "call up" process, the issue was placed on the Council's agenda on September 24, 2001. Midwest's proposal was presented by Cary Daniel at the Council meeting; however, Tubbesing also spoke. Tubbesing denied that he spoke with Council member Thomas about "slid[ing] this project through with the Deffenbaugh issue." At trial, Tubbesing testified that he had encouraged several Council members and the mayor to support Midwest's proposal between the September 17, 2001, Commission meeting and the September 24, 2001, Council meeting. Dr. Dowling and his attorney addressed the Council, and Chaffee made statements on behalf of the City's planning staff.

A majority vote was required to send Midwest's proposal back to the Commission, and a two-thirds vote was required to overturn the Commission's recommendation. The Council's motion to send Midwest's proposal back to the Commission failed on a 4 to 4 vote because the mayor chose not to vote. The mayor, who had recommended Tubbesing for his position on the Commission, declined to vote. The Council's vote to deny Midwest's proposal failed on a 3 to 5 vote.

Dr. Dowling filed a lawsuit in district court against the City and Midwest for failure to comply with site plan regulations, failure to follow lawful procedure, and lack of reasonableness. During discovery, Tubbesing was asked in an interrogatory:

"7. State whether you ever contacted, spoke or communicated in any way with any member of the City's staff, the Planning Commission, the City Council or the Mayor about the Property, the site plan for the Property or its approval? If so state:

a. The date of such contact;

b. Whether it was oral or in writing:

c. If in writing, identify all documents constituting such contact;

d. If oral, state in detail the substance and content of such communications; identify all persons present or involved in such communication; and state the location of such contact."

"[Answer:] Kevin Tubbesing may have had brief conversations with each Planning Commissioner regarding the project. He has no specific recollection regarding the date or content."

A bench trial was held, and the trial court concluded that Tubbesing's actions did not violate K.S.A. 75-4305 or the Commission's bylaws. The trial court found that Dr. Dowling failed to prove the City's action was unreasonable. The trial court ruled in favor of Midwest and the City. Dr. Dowling timely appeals.

K.S.A. 75-4305

Dr. Dowling argues that as a matter of law, the trial court erred when it concluded Tubbesing did not violate K.S.A. 75-4305. Dr. Dowling maintains that since Tubbesing has a substantial interest in Midwest's site proposal, he was forbidden to exercise any action regarding the proposal.

Interpretation of a statute is a question of law, and an appellate court's review is unlimited. An appellate court is not bound by the trial court's interpretation of a statute. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).

K.S.A. 75-4305 states:

"(a) Any local governmental officer or employee who has not filed a disclosure of substantial interests shall, before acting upon any matter which will affect any business in which the officer or employee has a substantial interest, file a written report of the nature of the interest with the county election officer of the county in which is located all or the largest geographical part of the officer's or employee's governmental subdivision.

"(b) A local governmental officer or employee does not pass or act upon any matter if the officer or employee abstains from any action in regard to the matter."

In this case, Tubbesing did not vote on Midwest's proposal at the Commission hearing; however, that does not end our inquiry.

K.S.A. 75-4301a defines "substantial interest." As a 55 percent owner in Midwest, Tubbesing has a substantial interest in the site plan. See K.S.A. 75-4301a(a)(1) and (4).

We are unable to find any relevant Kansas case law on this issue. However, there are relevant Advisory Opinions of the Kansas Commission on Governmental Standards and...