Mease v. City of Shawnee

• Decision Date: 22 May 2003
• Docket Number: Civil Action No. 03-2041-CM.
• Citation: 266 F.Supp.2d 1270
• Parties: Laura MEASE and Marty Mease, Members of the SaddleBrooke Homeowners' Association, Plaintiffs, v. CITY OF SHAWNEE, Johnson County, Kansas, Defendant.
• Court: U.S. District Court — District of Kansas

266 F.Supp.2d 1270

Laura MEASE and Marty Mease, Members of the SaddleBrooke Homeowners' Association, Plaintiffs, v. CITY OF SHAWNEE, Johnson County, Kansas, Defendant.

Civil Action No. 03-2041-CM.

United States District Court, D. Kansas.

May 22, 2003.

Michael J. Abrams, Lathrop & Gage L.C., Kansas City, MO, W. Joseph Hatley, Tammy M. Somogye, Lathrop & Gage L.C., Overland Park, KS, for Plaintiffs.

Chad E. Humble, Marvin E. Rainey, Rainey & Rainey, Shawnee Mission, KS, for Defendant.

MEMORANDUM AND ORDER

MURGUIA, District Judge.

On January 24, 2003, plaintiffs filed a Verified Petition and Motion for Restraining Order against defendant City of Shawnee (the City) in Johnson County District Court seeking, among other things, an order enjoining the City from enforcing certain municipal ordinances (the Ordinances¹) pertaining to deed restrictions governing the SaddleBrooke subdivision. On that same date, the Honorable Thomas E. Foster issued a Restraining Order enjoining the City from enforcing the Ordinances as to the deed restrictions. The City thereafter removed the case to federal court, whereupon this court issued a Temporary Restraining Order (Doc. 14) enjoining the City from enforcing the Ordinances. On April 1, 2003, this court held a hearing, at which time the court took plaintiffs' Motion for Temporary Restraining Order under advisement. Based upon the evidence submitted at the hearing on this matter, the court now rules on plaintiffs' Motion for Preliminary Injunction (Doc. 4).

• Facts

Plaintiffs reside in the SaddleBrooke Subdivision located in Shawnee, Kansas, and are members of the SaddleBrooke Homeowners' Association. The value of homes in SaddleBrooke ranges between $300,000 and $750,000. The City is a municipal corporation within the State of Kansas. On May 24, 1993, the Saddle-Brooke Subdivision filed with the Johnson County Register of Deeds a Declaration of Restrictions for the subdivision (the Restrictions). The restrictive covenant at issue in this case (the Roofing Restriction) reads as follows:

Roofs shall be covered by cedar shakes, slate or concrete tile and shall have a minimum roof pitch of 5 on 12. No asphalt shingle, gravel or tar roofs are allowed. No flat roofs are allowed.

At the time the Restrictions were filed, there were no city ordinances requiring deed restrictions to allow the use of particular roofing materials.

On August 26, 2002, the City passed Ordinance No. 2625, amending its building code, which in part provided:

It shall be unlawful to establish or enforce a restrictive covenant which permits the use of either wood shingles, wood shake, tile or slate, but no other Class C roof material on a residential dwelling within the City. Any such restrictive covenant is contrary to the public policy of the City and is null and void.

Then, on January 13, 2003, the City passed Ordinance No. 2655 amending Ordinance No. 2625, to read:

It shall be unlawful to establish or enforce a restrictive covenant which permits the use of wood shingles or wood shake shingles or any other unrated roofing material on a residential dwelling within the City unless the restrictive covenant also permits as an alternative the use of a Class A, B or C rated asphalt shingle, also known as composition roofing material. Any such aforedescribed restrictive covenant is contrary to the public policy of the City and is null and void.

The City incorporated eleven findings of fact supporting the passage of the Ordinances, the most relevant of which is as follows:

The use of wood shingle, wood shake shingle, or other roofing materials less than Class C rated presents a substantial threat to the public safety from the increased risk of fire and the potential for, under certain conditions, the spreading of fire to neighboring property, thereby placing lives and property at increased risk of harm.(Ordinance No. 2655 Findings of Fact). The City also found:

While some restrictive covenants may permit the use of tile or slate materials in lieu of wood, use of these materials costs substantially more than other Class C or better roofing material .... Increasing the number of residences with roofing material that has less risk of fire than does wood will result in less fire damage to property or to persons within the City, will reduce the economic loss caused by fire and will reduce the demand on the City's Fire Department and other public safety officials.... Restrictive covenants that permit the use of wood shingles or wood shake shingles and tile, slate, concrete or other permanent type roofing material but do not permit the use of composition roofing material, whether rated Class A, B or C, have in the past and if the covenant is not changed, will in the future result in subdivisions in which wood is the exclusive or predominate material used for roofing on new residences.

(Id.). Moreover, according to the Findings of Fact, the City was concerned that residents who occupy subdivisions with such restrictive covenants "have never had an opportunity to balance the risks and benefits of the required uses of such materials in their personal residences or their subdivisions, and to make their own informed judgment on such required use. In fact, many of these residents have not reviewed the restrictive covenants prior to acquiring the real estate." (Id.) The court notes that the City did not ban the use of rated or unrated wood roofs in Shawnee.

At the preliminary injunction hearing, Marty Mease, Al Faltermeier, and Bob Rebori, all of whom, are residents of the SaddleBrooke Subdivision (the Residents), testified that the Restrictions, namely the ban of the use of asphalt roofing materials, were important in their decision to purchase their property in SaddleBrooke. The Residents further testified that they had knowledge of the Restrictions prior to moving to SaddleBrooke; they found asphalt roofs to be aesthetically displeasing in appearance; they believe that the allowance of asphalt roofs within the Subdivision would have a negative impact on their property values; they relied on the validity of the Restrictions in their decision to purchase their property; and that they would not have moved into the Subdivision had they known that asphalt would be allowed as a roofing material.

The SaddleBrooke Subdivision contains approximately 150 lots, with 129 residences having been constructed. One hundred nineteen of the residences have wood shake or shingle roofs, and eight have tile or concrete tile roofs. Two residences, constructed after passage of Ordinance No. 2625, have asphalt composition roofing material.

Roofing materials are rated for fire retardancy or resistance as either Class A, Class B or Class C, with Class A having the highest fire rating. Class A rated roofing materials are effective against severe fire exposure, while Class C rated roofing materials are effective against light fire exposure, and under such exposure is not readily flammable, affords a measure of fire protection to the roof deck, does not slip from position, and is not expected to produce flying brands. All asphalt shingles are rated Class A, Class B or Class C. All concrete tile and slate roofing systems are rated Class A. There was conflicting evidence presented at the hearing regarding wood roof ratings. However, for purposes of this opinion, the court presumes that wood shingles treated with fire-retardant chemicals are either Class B or Class C, and untreated wood shingles are nonrated. Non-rated roof coverings provide no protection against fire exposure and are readily flammable.

• Standards

A party seeking a preliminary injunction bears the burden of showing: "(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) [that] the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) [that] the injunction, if issued, will not adversely affect the public interest." Fed. Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190,1194 (10th Cir.1999). "If the plaintiff can establish that the latter three requirements tip strongly in his favor, the test is modified, and the plaintiff may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.2002) (quotation omitted). Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal. Kan. Health Care Ass'n, Inc. v. Kan. Dep't of Soc. & Rehab. Servs., 31 F.3d 1536, 1543 (10th Cir.1994).

• Discussion

• Irreparable Harm

A harm is irreparable if money damages are an inadequate remedy because of difficulty or uncertainty in their proof or calculation. Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir. 1990). Plaintiffs argue that, if the Ordinances are allowed to stand, the Ordinances will significantly impact plaintiffs' ability to maintain the integrity and conformity of the roofing materials on homes built on the remaining vacant lots in the SaddleBrooke subdivision. Moreover, plaintiffs contend that, even if they ultimately obtain permanent relief, such relief will be meaningless without the preliminary injunction because houses with nonconforming roofs could be built before the court entered such relief.

The court concludes that plaintiffs have shown they will suffer irreparable injury unless an injunction is issued. Since passage of the Ordinances, two houses in the SaddleBrooke Subdivision have been constructed with asphalt composition roofing material. Considering that fact, the court agrees that houses with asphalt roofs likely would be constructed in SaddleBrooke pending final resolution of this matter. Further, plaintiffs' property values would...