State ex rel. City of Blue Springs v. Nixon, SC 88475.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Laura Denvir Stith
• Citation: 250 S.W.3d 365
• Parties: STATE ex rel. CITY OF BLUE SPRINGS, Missouri, Relator, v. The Honorable W. Stephen NIXON, Respondent.
• Docket Number: No. SC 88475.,SC 88475.
• Decision Date: 29 April 2008

250 S.W.3d 365 STATE ex rel. CITY OF BLUE SPRINGS, Missouri, Relator,
v.
The Honorable W. Stephen NIXON, Respondent. No. SC 88475. Supreme Court of Missouri, En Banc. April 29, 2008.

[250 S.W.3d 367]

Brandon D. Mizner, James H. Ensz, Matthew J. Gist, Kansas City, for Relator.

Jonathan A. Bortnick, Bortnick, McKeon, Sakoulas & Schanker, P.C., David R. Buchanan, Michael P. Arnone, II, Beverly M. Weber, Kansas City, Joseph S. Gall, Independence, for Respondent.

LAURA DENVIR STITH, Chief Justice.

Relator City of Blue Springs ("City") seeks a writ of prohibition requiring Respondent, the Honorable W. Stephen Nixon, to grant its motion for summary judgment on claims brought against the City by Blue Springs residents Shawn and Jennifer Stevens. The Stevenses allege that the City is liable to them under a theory of inverse condemnation because the City approved the plat of the development in which their property is located and that plat failed to provide sufficiently for drainage of storm water runoff from the homes located higher on the hill on which the Stevenses' property was located. This Court issued its preliminary writ of prohibition.

This Court makes its writ absolute. To the extent that the damages of which the Stevenses complain were capable of ascertainment prior to their purchase of the property, they do not have standing to assert an inverse condemnation claim because such claims do not run with the land. In the event that the damages were not capable of ascertainment until after the Stevenses purchased the property and built a walk-out basement, the Stevenses would still be required to show some affirmative conduct by the City that resulted in damage. The City's approval of a plat that meets development code requirements which is alleged to lack adequate drainage for storm water cannot sustain liability on an inverse condemnation claim. To hold otherwise would in effect require a municipality to act as an insurer of the plans of every developer. This Court declines to make such a radical extension of the law of inverse condemnation.

I. FACTUAL AND PROCEDURAL BACKGROUND

The home of Shawn and Jennifer Stevens is located in a residential neighborhood in Blue Springs called "Stonecreek." The portion of the subdivision at issue here has 46 lots, some of which are built on the top of a hill and some, including that of the Stevenses, are on a sloping downhill grade. When it rains, as one would expect,

250 S.W.3d 368

the water that falls on the homes at the top of the hill runs down the hill. Some of this rainwater is caught in a drainage area put in place by Stonecreek's developers, but some also continues on down the hill, where it runs through the Stevenses' yard. Mr. Stevens could see that the lot which he ultimately purchased was located on a downhill slope and indicated to the sellers that he was concerned about drainage in the area. He alleges he was assured that there was no drainage problem.

The Stevenses bought the property and began constructing their home in 2000. They wanted to build a retaining wall in their back yard that would allow them to have a walk-out basement. Their independent builder told them not to put in such a walk-out basement, as it would change the natural drainage of the area and cause them drainage problems from storm water runoff when it rained. The Stevenses decided to build the walk-out basement anyway. This caused a swale in the remainder of the yard, which created a natural channel in which storm water flowing down the hill would run. As a result, when it rains hard, the Stevenses are unable to use portions of their yard through which the storm water flows, and they lose topsoil.

The Stevenses had purchased their lot from the developers of Stonecreek subdivision, Damar Development, Inc. ("Damar") and Markirk Construction ("Markirk"). Damar and Markirk owned the subdivision and requested preliminary plat approval in 1998 and final plat approval in 1999. As required by the City, they submitted a storm water drainage and storm water sewer system plan for Stonecreek that complied with the American Public Works Association Standard Specifications and Design Criteria.

The City's engineer, upon examining the plat and other submissions, found that the plat met the City's development code requirements, including those aspects relating to drainage. He was aware that water would drain down hill when it rained and that the water that was not caught in the provided drainage area would cross through some yards on the slope of the hill, including that of the Stevenses. The City's engineer did not believe that this would cause excessive water to run through that property.

When asked whether he believed that the City should have taken (and compensated affected property owners for) an easement for the water flow through the property, the City's engineer said that he had not considered the issue and did not know, but after further consideration, knowing what he did, he did not believe that an easement was necessary. The City's engineer said he believed that the Stevenses' storm water situation was caused by their retaining wall and walk-out basement, as that is what changed the natural flow of the water. But, he said, the City does not normally dictate whether home buyers will be restricted to flat grades in their lots or will be permitted to build retaining walls. That is usually decided by the developer. If a plat meets the code, then approval is recommended.

The City approved the plat, as recommended by its staff, in an ordinance passed in October 1999. After Damar and Markirk received plat approval from the City, they began construction throughout Stonecreek and sold individual lots to property owners, including the Stevenses.

In 2004, believing that the presence of the storm water runoff interfered with their use and enjoyment of their land, the Stevenses sued Damar and Markirk (and their alleged agents and associates) seeking damages and injunctive relief. They

250 S.W.3d 369

alleged that the developers were negligent and that they misrepresented the storm water runoff and drainage issues to the Stevenses. The Stevenses also sued the City, alleging it was liable in negligence for its approval of the plat without requiring additional provision for rainwater runoff, and also asserting a claim that the storm water runoff constitutes an inverse condemnation to the extent of the damage it has caused to their land.

The City sought summary judgment on the claims against it for negligence based on sovereign immunity. It sought summary judgment on the inverse condemnation claim based on the fact that the Stevenses did not own the land when the plat approval occurred and, thus, lacked standing, and because the Stevenses had failed to allege or prove an affirmative act of the City that could provide a basis for a finding of inverse condemnation. Although the Stevenses did not present any contrary expert testimony that the City's development code required it to obtain an easement in situations such as this or that the code required the City to impose restrictions on whether a walk-out basement could be built before approving a plat, the trial court denied the City's motion for summary judgment. The City sought relief in prohibition. This Court issued its preliminary writ of prohibition. It now makes that writ absolute.

II. STANDARD OF REVIEW

This Court has authority to "issue and determine original remedial writs." Mo. Const. art. V, sec. 4.1. A writ of prohibition is appropriate in the context of summary judgment to prevent "unnecessary, inconvenient and expensive litigation."...