Opinion
No. 106,036.
2012-05-11
Don MERTENS and Don Mertens Custom Homes, Inc., Appellants, v. The CITY OF CLEARWATER, Kansas, A Municipal Corporation, Appellee.
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.
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.
MEMORANDUM OPINION
PER CURIAM.
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: “Council Member FitzGerald made a motion to approve the Planned Development and the final plat of Chisholm Ridge pending ownership of land and a copy of homeowners association covenants. The motion was seconded by Council Member York and passed with a roll call vote of 4–0.” (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 Council reviewed the covenants for the Chisholm Ridge Addition with some discussion. City Administrator [Kent] Brown stated that the developer should register the covenants with the Register of Deeds.”
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 recording of the homeowners' association covenants was a condition precedent to approval of the PUD; rather, he felt that the City should have recorded the PUD within a day after the August 12, 2003, meeting when the city council voted to approve the PUD and signed the document.
Following discovery, Mertens filed a motion for summary judgment. Mertens argued that the uncontroverted evidence showed that both conditions precedent to the city council's approval of the PUD were satisfied. According to Mertens, the conditions precedent were: (1) Mertens' ownership of the land, without any requirement that he provide documents to the City demonstrating ownership; and (2) a copy of homeowners' association covenants, without any requirement that the covenants first be fully executed and recorded. Because the City agreed that Mertens had obtained ownership of the property and it was undisputed that the city council reviewed the Initial Covenants at the August 26, 2003, meeting, Mertens contended that both conditions were satisfied as of that date and that the City was under an obligation to record the PUD within a reasonable time thereafter—certainly before January 25, 2005 (the date Ordinance 835 was adopted). Because the City failed in its obligation to timely record the PUD, Mertens contended that the 6–foot rear setback requirement under the prior Ordinance 766 should be applicable to all lots in the Addition, including the subject lot.
The City filed a cross-motion for summary judgment. The City argued that the plain language of the PUD states that the applicable zoning regulations are those in effect on the date the document was recorded (March 15, 2010) and thus the 25–foot rear setback requirement under Ordinance 835 applies. Moreover, the City contended that the PUD was not immediately recorded because the two conditions precedent to approval were not timely satisfied. Although the City agreed that Mertens had obtained ownership of the property and thus the first condition was satisfied shortly after August 12, 2003, the City contended that the second condition required that the homeowners' association covenants provided to the City be binding and effective and be recorded. Because the Initial Covenants were not binding and effective and were never recorded, the City contended that the second condition was not satisfied until the Final Covenants were recorded on November 12, 2004, and Mertens' failure to provide actual notice thereof to the City contributed to the City's delay in recording the PUD. The City also renewed its previous arguments that Mertens' action was procedurally barred because he failed to appeal the denial of his request for a variance on the subject lot, that mandamus was not an appropriate remedy, and that the City was not obligated to issue a building permit which would encroach upon the utility easement.
The district court held a hearing on the summary judgment motions on January 13, 2011. After hearing arguments of counsel, the district court denied Mertens' motion and granted the City's cross-motion for summary judgment. The district court found that, based on the minutes of the city council meetings held August 12 and August 26, 2003, “a reasonable interpretation of the conditions of the City's approval of the PUD required that homeowners association covenants be recorded with the Registrar of Deeds, but did not necessarily require delivery of a copy of the recorded covenants to the City.” The district court then found that the condition was not met until November 12, 2004, when the Final Covenants were recorded, and that the recording constituted constructive notice to the City. Although there is no statutorily mandated period within which the City was required to record the PUD after the conditions of approval were met, the district court stated that 180 days would be reasonable; thus, the City could have recorded the PUD after Ordinance 835 was adopted on January 25, 2005, and still have recorded the document within a reasonable time after the conditions were met. Because the City had no legal obligation to record the PUD prior to January 25, 2005, the district court found that the 25–foot rear setback requirement under Ordinance 835 applied and the City was entitled to summary judgment. The district court declined to reach the merits of the City's other grounds for relief. Mertens timely appealed the district court's judgment.
On appeal, Mertens argues that the district court erred in finding that the recording of homeowners' association covenants—rather than simply providing a copy of covenants to the City—was a condition precedent to the City's approval of the PUD. Mertens further argues that the undisputed facts show that all conditions precedent to the approval of the PUD were satisfied on August 26, 2003, when Mertens provided a copy of the Initial Covenants to the City, and that the 6–foot rear setback requirement applies because the City failed to record the PUD within a reasonable time thereafter and prior to the January 25, 2005, adoption of Ordinance 835. In the alternative, Mertens contends that there is a genuine issue of material fact as to whether the recording of homeowners' association covenants was a condition precedent to approval of the PUD, and thus summary judgment was precluded.
The City argues that the plain language of the PUD states that the applicable ordinance is the one in effect on the date the document is recorded—March 15, 2010—and that therefore the 25–foot rear setback requirement under Ordinance 835 is applicable. The City additionally contends that the only reasonable interpretation of the controverted facts is that the recording of homeowners' association covenants was a condition precedent to the City's approval of the PUD. Because the district court correctly determined that the City could have recorded the PUD after Ordinance 835 was adopted but within a reasonable time following the November 12, 2004, recording of the Final Covenants, the City contends that the district court did not err in finding that the 25–foot rear setback requirement under Ordinance 835 applied. Finally, the City renews its procedural arguments that Mertens' action was procedurally barred because he failed to appeal the denial of his request for a variance on the subject lot, and that mandamus was not an appropriate remedy.
The summary judgment standards are well known. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusion drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
We will begin by addressing the City's argument that mandamus is not an available remedy to Mertens under the uncontroverted facts of this case. If the City is correct, then this issue is dispositive and we need not address the substance of Mertens' claims. Whether mandamus is an available remedy to Mertens under the uncontrovered facts of this case is a question of law, and this court's review is de novo. See Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
“Mandamus is a proceeding to compel some inferior court, tribunal, board, corporation or person to perform a specified duty, which duty results from the office, trust or official station of the party to whom the order is to be directed. (K.S.A.60–801.) The remedy of mandamus is available for the purpose of compelling the performance of a clearly defined official duty. Its purpose is to compel the performance of an act which the law specifically enjoins as a duty resulting from the office or trust. This remedy may not be invoked to control discretion, or to control a right which is in substantial dispute. [Citations omitted.]” (Emphasis added.) Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 872–73, 518 P.2d 410 (1974).
We agree with the City that mandamus is not an available remedy to Mertens under the uncontroverted facts of this case for two reasons. First, mandamus is not an available remedy because it is within the City's discretion to issue a building permit for the subject lot which either varies from the 25–foot rear setback requirement under Ordinance 835 or encroaches upon the 20–foot utility easement. We recognize that Mertens is claiming that Ordinance 835 is inapplicable in this case, and if Mertens is correct, then the rear setback requirement is no longer a discretionary matter. But it is undisputed that the building permit Mertens is seeking for the subject lot encroaches upon the 20–foot utility easement. Although Mertens obtained consent from some of the utility owners to encroach into the utility easement, the City controls a sewer line within the easement and has never consented to the encroachment. With respect to the utility easement, the City has the absolute discretion to deny an encroachment and has no duty to issue a building permit that would allow for an encroachment, regardless of which zoning ordinance is ultimately determined to apply. Therefore, the City is correct that mandamus is not an available remedy to Mertens because his petition seeks to compel the performance of a discretionary act. See State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 448, 172 P.3d 1154 (2007) (determination of competency under Veteran's Preference Act is a discretionary decision and mandamus is not an appropriate remedy).
Second, mandamus is not an available remedy because the right that Mertens claims—the issuance of a building permit subject to the 6–foot rear setback requirement under Ordinance 766—is in substantial dispute. In Board of Harvey County Comm'rs v. Whiteman, 23 Kan.App.2d 634, 933 P.2d 771 (1997), the county filed a mandamus action against the Department of Social and Rehabilitation Services (SRS) for reimbursement of the county's detention expenses for a certain juvenile in SRS custody. The district court dismissed the county's action, finding that mandamus was not an appropriate remedy because although the SRS had a legal duty to pay, there was a substantial dispute as to the amount owed. 23 Kan.App.2d at 635. On appeal, this court upheld the district court's dismissal, finding that “the viability of both [parties'] positions leads to the conclusion that the County's right to recover the full amount of the expenses is in substantial dispute” and therefore mandamus was not an appropriate means to resolve the issue. 23 Kan.App.2d at 638–39; see also Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 4–5, 668 P.2d 172 (1983) (court should not issue writ of mandamus unless defendant's legal duty is clear).
Likewise, there is a substantial dispute as to which zoning ordinance applies and whether Mertens is entitled to the requested building permit. Although we have not addressed the merits of Mertens' arguments on appeal, we have set forth in detail the legal arguments made by the parties in order to show that Mertens' claim is in substantial dispute. Mertens' claim against the City is premised on the complex argument that the recording of the homeowners' association covenants was not a condition precedent to recording the PUD and, thus, the City should have recorded the PUD within a reasonable time after the city council meeting on August 12, 2003, and certainly before the January 25, 2005, adoption of Ordinance 835. In response to Mertens' argument, the City points to the unambiguous language of the PUD that states that the applicable ordinance is the one in effect on the date the document is recorded. Clearly, the right that Mertens claims in this action is in substantial dispute.
Under the uncontroverted facts of this case, mandamus is not an available remedy, and the district court's decision denying Mertens' motion for summary judgment and granting the City's cross-motion for summary judgment can be upheld for this reason alone. Although the district court acknowledged that the City is a municipal corporation to which mandamus “could apply,” the district court declined to reach the merits of the City's affirmative defense that mandamus was not an available remedy to Mertens in this case. When the district court reaches the correct result, its decision will be upheld even though the district court relied on the wrong ground or assigned erroneous reasons for its decision. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007).
Although our ruling on this procedural issue is dispositive of the appeal, in the event our decision is reviewed, we also will briefly address the merits of Mertens' appeal. Mertens' primary claim is that the district court erred in finding that the 25–foot rear setback requirement under Ordinance 835 applied to the subject lot. Mertens' argument requires interpretation of the PUD. The interpretation and legal effect of written instruments are matters of law and appellate review is unlimited. See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900–01, 220 P.3d 333 (2009).
Here, the plain language of the PUD clearly states that the applicable ordinance is the one in effect on the date the document is recorded, not the date that it is approved by the city council. Applying the plain language of the PUD, Ordinance 835 was in effect on March 15, 2010, when the PUD was recorded, and therefore Ordinance 835 is applicable to the subject lot. Thus, based on the clear and unambiguous language of the PUD, we conclude the district court did not err in finding the 25–foot rear setback requirement applies and in granting summary judgment in favor of the City. Cf. Carrothers Constr. Co. v. City of South Hutchinson, 288 Kan. 743, 751, 207 P.3d 231 (2009) (“The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the contract language without applying rules of construction. [Citation omitted.]”)
Affirmed.