Scott v. City of Leawood
| Decision Date | 02 December 2022 |
| Docket Number | 124,556 |
| Parties | Dennis W. Scott, et al., Appellants, v. City of Leawood, Kansas, Appellee. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Johnson District Court; Rhonda K. Mason, judge.
Andrew I. Spitsnogle, John M. Duggan, and Alex M. Johnson, of Duggan Shadwick Doerr & Kurlbaum LLC, of Overland Park, for appellants.
Michael K. Seck, of Fisher, Patterson, Sayler & Smith L.L.P., Overland Park, for appellee.
Before Arnold-Burger, C.J., Bruns and Hurst, JJ.
Dennis and Kristine Scott appeal the district court's ruling in favor of the City of Leawood in a dispute that arose after the Scotts placed two stone columns in the public right-of-way of a newly constructed cul-de-sac that is required to be dedicated to the City as part of a residential construction project. Although the Scotts submitted plans and specifications to the City of Leawood for the cul-de-sac that depicted the required public right-of-way, those plans and specifications did not show that they intended to place stone columns in the right-of-way. Ultimately, the City of Leawood informed the Scotts that one of the two stone columns must be removed from the public right-of-way before it would accept dedication of the cul-de-sac. In response, the Scotts filed a petition in district court seeking a declaratory judgment and other relief.
On appeal, the Scotts contend that the district court erred in concluding that a building codes inspector employed by the City of Leawood did not have authority to authorize the placement of the stone columns in the public right-of-way of the required cul-de-sac. The Scotts also contend that the district court erred in concluding that they had failed to exhaust administrative remedies. Based on our review of the record in light of Kansas law, we conclude that the building codes inspector did not have actual authority to authorize or approve the placement of the stone columns in the public right-of-way of the cul-de-sac to be dedicated to the City. As a result, it is unnecessary for us to reach the issue of exhaustion of administrative remedies. Thus, we affirm the district court.
On September 17, 2018, the Scotts filed a petition against the City of Leawood in which they sought a declaratory judgment asserted a claim for equitable estoppel, and requested injunctive relief. In the alternative, the Scotts asserted a claim for compensatory damages. After completion of discovery, the parties filed cross-motions for summary judgment that were denied by the district court. On February 21, 2021, the district court commenced a two-day bench trial utilizing interactive live streaming technology.
Prior to trial, the parties stipulated to many of the facts. During the trial, the district court also heard the testimony of five witnesses. In addition, the district court reviewed several exhibits that were admitted into evidence. After considering the stipulated facts as well as the evidence presented by the parties at trial, the district court entered a comprehensive 24-page journal entry of judgment in which it ruled in favor of the City.
Although the parties disagree regarding the district court's legal conclusions, neither party challenges the district court's findings of fact. Moreover, we note that each of the district court's factual findings was supported by a citation to the record. Thus, we adopt the findings of fact as set forth by the district court in its journal entry of judgment.
In summary, the district court found that in 2015 the Scotts purchased real property in Leawood to build a new house. The Scotts subsequently retained Ambassador Construction to serve as their contractor. In doing so, they authorized Keith Eymann- who is part owner of Ambassador Construction-to act on their behalf in dealing with the City of Leawood during the construction process. In particular, the Scotts granted Eymann the authority to act on their behalf to obtain the necessary permits and approvals from the City to complete the project.
Prior to beginning construction of the house, Eymann participated in a pre-application meeting with representatives of the City of Leawood's Public Works Department and Planning Department to review the required plans for the construction project. As a result, Eymann knew that the City required a cul-de-sac to be constructed to connect the Scotts' property to the existing street in order to obtain sufficient frontage. Eymann also knew that the City required the cul-de-sac to be dedicated to the City upon approval. In addition, he knew that there would need to be a public right-of-way surrounding the required cul-de-sac.
On December 1, 2015, Eymann filed a "Residential & Commercial Building Permit Application" with the City of Leawood to begin the process of obtaining a building permit. Prior to filing the application, Eymann knew that there were limitations in Leawood regarding what could be placed in a public right-of-way. The City ultimately accepted the plans and issued a building permit for the construction of the home in January 2016. On behalf of the Scotts, during the construction process, Eymann applied for and obtained the necessary right-of-way permit and submitted plans to the City that included the required cul-de-sac and public right-of-way. However, the plans did not show the stone columns that are the subject of this case.
At some point, Ambassador Construction subcontracted with Towner, Inc.- which is a concrete construction company-to perform the concrete work on the Scotts' new residence. The services provided by Towner, Inc. included work on the basement floor, the driveway, and the driveway approach. In addition, Towner, Inc. was asked to build the footings to support the two stone columns that the Scotts desired to place in the public right-of-way in order to mark the entrance into their property.
It appears that the footings were placed based on undated drawings prepared by Richard Barrett-a landscape architect retained by the Scotts-that showed where the stone columns were to be located. The north column was to be decorative only. On the other hand, the south column was to house both a mailbox and a security camera.
It is undisputed that Barrett's landscape drawings were never submitted to the City. Furthermore, the original plans for the cul-de-sac filed with the City were never amended to depict the desired placement of stone columns in the public right-of-way. In fact, it is undisputed that neither Eymann nor anyone else acting on behalf of the Scotts ever contacted the City of Leawood about the Scotts' intent to place the stone columns in the public right-of-way of the cul-de-sac required by the City to be built as part of the approval process for the construction project.
As the district court found, the City of Leawood has separate inspectors who are employed by the Public Works Department and the Codes Administration Department. The Public Works Department has its own hotline to call to request inspections involving right-of-way and other infrastructure issues. Similarly, the Codes Administration Department has a separate hotline to call to request inspections of construction work performed within the City for building code compliance.
Eymann testified that he knew there were two separate hotlines controlling inspections by the Codes Administration Department and the Public Works Department. Likewise, a principal of Towner, Inc. testified that he also knew that the Public Works Department and the Codes Administration Department are separate and responsible for conducting inspections within their own area of responsibility. The representative of Towner also testified that he was familiar with the process for requesting public right-of-way inspections.
As indicated above, Towner, Inc. was retained on behalf of the Scotts to prepare the footings upon which the two stone columns were constructed. On July 20, 2017, Geoff Bowen-who is employed as a building codes inspector for the Codes Administration Department-inspected the work performed by Towner, Inc. on the footings. He did so in response to a voicemail left on the Codes Administration Department's hotline by a representative of Towner, Inc. As the district court found, Bowen is not an employee of the Public Works Department nor does he report to the Director of Public Works.
The technician in the Codes Administration Department who listened to the voicemail requesting an inspection of the footings prepared a "Codes Administration Inspection" form that was then given to Bowen. The technician listed the date, the permit number, the contact's name, the contractor's name, and the contact phone number. In addition, the word "footing" is circled on the form. The technician also wrote "gatepost and mailbox" on the inspection form that was given to Bowen.
After going to the construction site to inspect the work on the footings, Bowen completed the remainder of the inspection form. In doing so, he noted that the work on the footings had been performed in a satisfactory manner. There is no mention in the inspection form regarding the placement of the footings in the public right-of-way of the cul-de-sac required by the City. Similarly, there is no evidence in the record to establish that the placement of the stone columns was discussed during Bowen's inspection of the work performed on the footings. The record reflects that the two stone columns were ultimately constructed in the public right-of-way and that each column is located only about six to seven inches from the curb of the cul-de-sac.
On April 25, 2018, Tom Klotz-who is one of the right-of-way inspectors employed by the Public Works Department-inspected the...
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