Gunkel v. City of Emporia, Kan., Civ. A. No. 85-4164-S.

• Decision Date: 07 May 1986
• Docket Number: Civ. A. No. 85-4164-S.
• Citation: 634 F. Supp. 345
• Parties: Calvin L. GUNKEL and Mildred A. Gunkel, Plaintiffs, v. CITY OF EMPORIA, KANSAS, and Russell Schoenberger, Defendants.
• Court: U.S. District Court — District of Kansas

634 F. Supp. 345

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

Civ. A. No. 85-4164-S.

United States District Court, D. Kansas.

May 7, 1986.

Betty Joan Phelps, Phelps-Chartered, Topeka, Kan., for plaintiffs.

Dale W. Bell, Guy, Helbert, Bell & Smith, Chtd., Emporia, Kan., Wyatt M. Wright, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' motion for summary judgment. The uncontroverted facts for the purposes of this motion are as follows. This action arises out of the issuance and revocation of a building permit. Plaintiff, Galvin L. Gunkel, was a licensed contractor in the City of Emporia, Kansas in 1983 and 1984. A licensed contractor has the obligation to follow city building codes and zoning regulations. Plaintiff owned his own copy of the Uniform Building Code and reviewed the same sometime in the 1980's. Language contained in Section 303(e) of the Building Code allows a permit to be revoked if issued in violation of a city ordinance or regulation. Plaintiff's attorney, Robert Symmonds, also had a copy of the Building Code as well as the zoning regulations in his office.

On February 4, 1983, plaintiffs purchased the front 125 feet of Lot 10 hereinafter Tract 1 from W.R. Ames. Plaintiff did not consult with an attorney prior to this purchase. Plaintiff intended to build single-family attached dwellings on Lot 10 and took out building permit # 0568 on March 10, 1983. The permit refers to the construction of a duplex and lists plaintiff Calvin Gunkel as the owner and contractor. Plaintiff alleges that although the word duplex appears on the permit, the parties understood and agreed that if the construction was such that the utilities would be separate, then the project would be considered single-family attached. Prior to the purchase of this lot, plaintiff had never built single-family attached housing. Prior to purchasing the front-half of Lot 10, plaintiff spoke to Russell Schoenberger, the Planning & Zoning Coordinator for the City of Emporia, regarding the requirements for single-family attached housing and learned about the separate utility and sewer requirements. Plaintiff assumes that he reviewed Ordinance # 1067 prior to purchasing Lot 10.

Pursuant to Ordinance # 1067, a single-family attached housing unit in the City of Emporia needs at least 22 feet of street frontage. A buildable lot in the City of Emporia must have a frontage upon a street. Plaintiff constructed a dwelling on Tract 1 of Lot 10. On July 20, 1983, plaintiffs sold the back half of Tract 1 of Lot 10 hereinafter Tract 1B to Edward and Lisa Benton. The legal papers drawn up represented that they purchased a single-family attached dwelling. The deed to the Bentons was not recorded until September 1, 1983.

On several occasions, plaintiff spoke with his attorney Symmonds about Ordinance #1067 after he bought the first half of Lot 10 because he was thinking about buying the second half. Plaintiff entered into a contract dated August 10, 1983 to sell the remaining portion of Tract 1 hereinafter Tract 1A. On August 29, 1983, plaintiff took out building permit # 0852 to build a structure on Tract 2 of Lot 10. This was the first time plaintiff had taken out a building permit to build on the back one-half of a lot. Building permit # 0852 was issued as a duplex and there was no discussion about that aspect of the permit. When plaintiff took out permit # 0852, he did not own Tract 2 of Lot 10, had already sold Tract 1B, and had entered into a contract to sell Tract 1A of Lot 10.

On August 31, 1983, plaintiffs conveyed Tract 1A to Joseph & Debra Baker and the deed was not recorded until September 2, 1983. On September 1, 1983, the Bakers purchased Tract 2 from W.R. Ames and deeded Tract 2 to plaintiff as a down payment on Tract 1A. Both deeds were recorded on September 2, 1983. Prior to purchasing Tract 2, plaintiff was aware of the 22 foot frontage required on single-family attached housing. Plaintiff did not review any zoning regulations prior to purchasing or building on Tract 2. Between August 29, 1983 and December 9, 1983, plaintiff never informed the City that he had purchased Tract 2 and sold off Tract 1. Likewise, plaintiff's attorney never informed the City that plaintiff sold off the front portion of Lot 10.

Plaintiffs' building permit was revoked on December 9, 1983, because of plaintiffs' action of selling off the front portion of the lot, thus violating the zoning rules and regulations of the City. Plaintiffs allege the revocation of this permit deprived them of constitutionally protected property interests. No other permits which plaintiff have taken out have been revoked and plaintiff has obtained a permit to build at another location after December, 1983.

The July 20, 1983 transaction to the Bentons created an illegal lot because there was no frontage on the street and the lot was unbuildable. The August 29, 1983 building permit was likewise illegal because the front half of the lot was sold to a different owner, thus creating an illegal lot out of Tract 2 which had no frontage on the street.

Prior to August 29, 1983, plaintiff and his attorney had discussed converting the front half of Lot 10 into a flag lot in order to satisfy Ordinance # 1067's 22 foot frontage requirement for a single-family attached dwelling. Previously on August 17, 1983, Mr. Bell, on behalf of the City, had written plaintiff's attorney, Mr. Symmonds, in regard to Lot 2 and specifically told him that the City intended to enforce the requirements for single-family attached dwellings and that all other single-family dwellings should be put in conformance with Ordinance # 1067. Mr. Symmonds at no time discussed with Mr. Bell or Mr. Schoenberger what effect the selling off of the front half of Lot 10 would have on the back half of Lot 10. At least by July 29, 1983, Mr. Symmonds had reviewed Ordinance # 1067 and was fully aware of its provisions including the 22 foot frontage requirement.

On August 23, 1983, Mr. Symmonds met with Mr. Bell and Mr. Schoenberger on behalf of his client W.R. Ames, primarily to discuss problems concerning Lot 2 in the Westridge Addition. During the discussion, Mr. Symmonds asked whether plaintiff could sell the front half of his property as single-family attached and the City said yes. The 22 foot frontage requirement was not specifically brought up at this meeting. Mr. Symmonds inquired whether there was any reason the plaintiffs property could not be sold as single-attached and was told no. However, Mr. Symmonds at this meeting did not inform Mr. Bell or Mr. Schoenberger that plaintiff did not own the entire lot.

The City of Emporia Zoning Regulations and Ordinance # 1067 were in effect at the time permit # 0852 was issued and were matters of public record. The Uniform Building Code also in existence allowed a permit to be revoked at any time if "issued in error or on the basis of incorrect information supplied, or in violation of any ordinance or regulation or any other provisions of this Code." Permit # 0852 was issued under and subject to these conditions.

Plaintiffs assert the City waived Ordinance # 1067 expressly or by implication through the August 23, 1983 meeting, the issuance of permit # 0852 and by allowing plaintiffs to spend approximately four (4) months building the project. Plaintiffs assert that by revoking the permit, the City deprived them of their property without due process of law in violation of 42 U.S.C. § 1983.

To rule favorably on a motion for summary judgment, the court must first determine that the matters considered in connection...