The Supreme Court of Kansas affirmed the district court’s ruling granting the City of Salina summary judgment on plaintiff’s claims that the City inversely condemned their property by denying them the ability to construct driveways or otherwise access their property, improperly refusing to grant them a building permit and damaging their property.
Plaintiffs operated a large retail complex on real property which the City acquired through a regulatory taking as part of the North Ohio Improvement Project (the Project). Plaintiffs allege their attempt to move to the relocation site, which was located adjacent to the Project and abutted some of the improvements, was thwarted by inappropriate regulatory actions of the City.
The first issue was whether the district court erred in granting the City’s motion for summary judgment as to the claim that the City interfered with plaintiffs’ use of the relocation site. Plaintiffs argued that the City, by removing access that existed before the Project and requiring the removal of dirt fill driveways constructed by the plaintiffs constituted a taking. Plaintiffs did not present evidence creating a factual controversy regarding the taking of existing access because they failed to cite to places in the record on appeal where they supported allegations before the district court. Plaintiffs also did not explain why the City’s requiring the removal of the driveways was erroneous or amounted to a taking, but merely that they were exempt from the City Code. The City asserted the installation of the driveways violated provisions of the City Code, and plaintiffs did not dispute the City had the right to require the removal of the driveways.
Plaintiffs also argued the moratorium prohibiting construction of driveways and the City’s failure to issue a building permit constituted a taking. Applying the Penn Central standards to determine whether the moratorium was a taking, the court found the City was exercising reasonable police power because it was limited to the time of construction and establishment of new traffic patterns, and there was no language indicating it affected plaintiffs in a particular manner different from other property owners in the area. The subject property had previously been used for agricultural purposes and continued to be used for agricultural purposes throughout the period in which the moratorium remained effective, and an alleged tax consequence and loss of any investment backed expectations was attributable to plaintiffs’ refusal to comply with permit requirements. The fact that the plaintiffs never submitted a completed application for a building permit prevented the investment of the proceeds into the development of the relocation site. The court found that the cases plaintiffs cited in support of the taking were not applicable because in those cases applications were pending for the construction of a building/driveway at the time the moratorium was passed, and the property was actually inaccessible by land. Further, since the moratorium was enacted to promote the common good, was limited to the construction or installation of driveways or other improvements within the right of way, and did not restrict development of adjacent private property outside the boundaries, the court concluded it was facially reasonable and did not result in a taking.
The claim that the City’s failure to issue a building permit constituted a taking was not yet ripe for review, because the permit had never been denied- there was no determination by the city of what level of development would finally be allowed on the property and it was still entirely possible that the plaintiffs’ planned development of the relocation site could be approved. The plaintiff’s failure to submit all of the required information in the application process resulted in a delay, rather than the City allegedly adding new requirements.
The second issue was whether the district court erred in granting the City’s motion for summary judgment with respect to plaintiffs’ inverse condemnation claims involving property damage allegedly caused by contractors working on the City’s Project and flooding/drainage problems allegedly caused by road realignments completed for the Project. Plaintiffs’ statements alleging the damage however referenced maps that did not provide any evidence that there was any trespassing or damage to the property, and they did not cite to any other evidence in the record on appeal. The City supported its motion for summary judgment with the affidavit of a professional civil engineer from the construction company who averred there were existing and ongoing drainage problems in the area prior to the Project, and the Project actually improved the drainage. Plaintiffs again failed to provide evidence to support their assertions.
Frick v. City of Salina, 2010 WL 2696961 (KS, 7/9/10)
The opinion can be accessed here.
