Mertens v. City of Clearwater
| Decision Date | 11 May 2012 |
| Docket Number | No. 106,036.,106,036. |
| Parties | Don MERTENS and Don Mertens Custom Homes, Inc., Appellants, v. The CITY OF CLEARWATER, Kansas, A Municipal Corporation, Appellee. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Robert W. Kaplan, of Klenda, Mitchell, Austerman & Zuercher, LLC, of Wichita, for appellants.
David G. Seely, of Fleeson, Gooing, Coulson & Kitch, LLC, of Wichita, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
Don Mertens and Don Mertens Custom Homes, Inc. (together, Mertens), the developer of a planned residential development in Clearwater, Kansas, known as the Chisholm Ridge Addition (Addition), appeals the district court's denial of his motion for summary judgment and the grant of the City of Clearwater's (City) cross-motion for summary judgment on Mertens' petition for a writ of mandamus. Mertens' petition sought to compel the City to issue a building permit for a certain lot in the Addition subject to a 6–foot rear setback requirement. Mertens argues that the district court erred in finding that the zoning ordinance adopted by the City on January 25, 2005, which includes a 25–foot rear setback requirement, is applicable to the subject lot. But we agree with the City that mandamus is not an available remedy to Mertens under the uncontroverted facts of this case. Accordingly, we affirm the district court's judgment in favor of the City.
We must go back nearly 10 years to summarize the relevant facts. On August 12, 2003, Mertens appeared before the Clearwater City Council during a regular meeting and presented the planned unit development requirements (PUD) for the Addition. The PUD provided for a 10–foot side setback on the residential lots in the Addition and for certain pavement widths on the streets. The PUD also provided:
“Unless specifically addressed in this document, all of the subdivision, zoning, and development requirements for the Plat of Chisholm Ridge Addition, An Addition to Clearwater, Sedgwick County, Kansas shall be as called out in the City of Clearwater subdivision and zoning regulations in effect on [the] date of the recording of this document.” (Emphasis added.)
Although Mertens did not yet own the property in the Addition, he expected to close on the property the next day. Mertens' engineer on the project also indicated at the council meeting that homeowners' association covenants were being drafted. The minutes of the meeting reflect that the city council took the following action: (Emphasis added.)
On August 13, 2003, Mertens did in fact close on the property and subsequently recorded the deed. That same day, the signatures of the mayor and the city clerk on the PUD were acknowledged before a notary. The parties agree that the PUD was not actually recorded with the register of deeds by the City until March 15, 2010.
On August 26, 2003, the city council held another regular meeting, but it is not clear whether Mertens was personally present at the meeting. At the meeting, the city council considered and approved the engineering plans and specifications for public utilities in the Addition. The city council also reviewed a set of homeowners' association covenants (Initial Covenants). The minutes of the meeting reflect:
The parties agree that the Initial Covenants were never recorded with the register of deeds, but the parties dispute whether the Initial Covenants otherwise ever went into effect. In any case, over a year later, on November 12, 2004, Mertens recorded a second set of homeowners' association covenants (Final Covenants), which differed considerably from the Initial Covenants. Mertens did not provide actual notice to the City that the Final Covenants had been recorded.
On January 25, 2005, the City adopted a new zoning and subdivision ordinance (Ordinance 835), which provided for a minimum rear setback of 25 feet. The zoning ordinance previously in effect (Ordinance 766) had provided for a minimum rear setback of 6 feet.
On May 29, 2009, Mertens filed an application for a building permit for Lot 15, Block 1 of the Chisholm Ridge Addition, commonly known as 141 Longhorn Court, Clearwater, Kansas, the lot that is the subject of the present appeal (subject lot). The building permit application provided for a rear setback of 21 feet. The City staff members approved the building permit application and did not notice the discrepancy between the 21–foot rear setback on the application and the 25–foot rear setback applicable under Ordinance 835. The discrepancy was brought to the attention of the city council, which agreed to allow the 21–foot setback but directed the city administrator to notify Mertens that any other setback violations would be subject to fines.
On October 30, 2009, Mertens filed a request for a variance from the 25–foot rear setback requirement under Ordinance 835 and from a 20–foot utility easement in order to build an elevated deck on the back of the house that had already been built on the subject lot. The deck would encroach a further 5 feet into the rear setback (9 feet total, assuming a 25–foot setback) and 4 feet into the utility easement. The variance request was denied on December 1, 2009, and Mertens did not appeal that denial. Mertens later requested permission from the utility owners to encroach into the utility easement and obtained consent from each utility owner except the City, which controls a sewer line within the easement. The City has never consented to the encroachment into the utility easement.
On April 20, 2010, Mertens filed a petition for a writ of mandamus to compel the City to issue a building permit for the subject lot subject to the 6–foot rear setback requirement applicable under the earlier Ordinance 766, arguing that the parties intended for the applicable ordinance to be the one in effect on the date the PUD was approved by the city council. The City filed an answer, contending that the plain language of the PUD states that the applicable ordinance is the one in effect on the date the document is recorded, and that therefore the 25–foot rear setback requirement under Ordinance 835 is applicable because the PUD was not recorded until March 15, 2010. The City further contended that Mertens was aware of the 25–foot rear setback requirement, that Mertens had applied for a variance therefrom and had failed to appeal the denial of his request, that mandamus was not an appropriate remedy, and that in any case the City was not obligated to issue a building permit which would encroach upon the utility easement.
The parties then engaged in discovery. In an affidavit, City Clerk Cheryl Wright testified that the PUD was not immediately recorded after the August 12, 2003, city council meeting “because [of] the additional requirements that ownership of the land be established [by Mertens] and that satisfactory homeowners' covenants be in effect.” Wright also testified that the Initial Covenants had been presented to the city council on August 26, 2003, but stated that the document was “unnotarized and unrecorded” and further that no notarized and recorded homeowners' association covenants for the Addition had ever been filed with the City. Wright admitted in the affidavit that the Final Covenants were recorded on November 12, 2004.
City Administrator Kent Brown also submitted an affidavit. Brown testified that the Initial Covenants had been reviewed by the city council on August 26, 2003, and that he had stated during the meeting that “homeowners association covenants for the Chisholm Ridge Addition would need to be recorded.” Brown further testified that to the best of his knowledge, the Initial Covenants were never in effect and were never recorded, and that no notarized and recorded homeowners' association covenants had ever been filed with the City. Brown stated that “as a direct result of [Mertens'] failure to record a final set of homeowners' association covenants in a timely manner and to notify the City of the eventual recording of those covenants,” the City's recording of the PUD was delayed. Brown later explicitly clarified that the city council was “waiting on [Mertens] to record [his] final covenants with the register of deeds, and for Mertens to provide us with a copy of the recorded document that was a condition to the approval by [the city council.]” Finally, Brown testified that because Mertens did not notify the City once the Final Covenants were recorded, and due to subsequent administrative oversight by City employees, the PUD was not recorded until March 15, 2010.
Mertens testified by deposition. Mertens stated that he believed the 6–foot rear setback requirement was applicable to the Addition and he did not become aware of the 25–foot rear setback requirement under Ordinance 835 until after construction had already begun on the house located on the subject lot. Mertens admitted to the existence of the 20–foot utility easement but clarified that he was only seeking to encroach on that easement with respect to the subject lot; as to the rear setback requirement, he hoped to receive a ruling that would extend to the other lots in the Addition. With respect to homeowners' association covenants, Mertens testified that no covenants were prepared before the August 12, 2003, city council meeting but that the covenants were prepared over a period of time prior to November 12, 2004, when they were recorded. Mertens did not believe that the...
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