Real Estate & Property Law

Kansas: Inverse Condemnation Case Resolved By Summary Judgment Burdens

By Robert Thomas (inversecondemnation.com)

Here at inversecondemnation.com we also cover eminent domain, regulatory takings, land use, and environmental issues. We even cover election law when it strikes our fancy.

But here's one that's in our core competency: in Frick v. City of Salina, No. 101,355 (July 9, 2010) the Kansas Supreme Court held that property owner-plaintiffs did not meet their summary judgment burden of opposing the city's motion, and affirmed a judgment that the city did not inversely condemn their property by denying them the ability to construct driveways to access their land.

After the city condemned their property, the Fricks moved their businesses to another nearby site. The move, according to the Fricks, "was thwarted by the 'inappropriate regulatory' action of the City. Slip op. at 8. The regulatory actions complained of included:

(1) denial of reasonable access to the relocation site during the Project; (2) construction activities that caused damages to the relocation site; (3) requirement that driveway entrances built by the Fricks be removed; (4) adoption of a moratorium ordinance restricting the installation of driveways, culverts, or other improvements within the right-of-way encompassed by the Project zone; (5) failure to issue a building permit to the Fricks; and (6) construction activities that altered drainage, caused water to be retained, and resulted in flooding of and damages to the relocation site.

Slip op. at 8-9. The city moved for summary judgment, which the trial court granted. 

On appeal, the Kansas Supreme Court reviewed the Fricks' claims that summary judgment should not have been granted because they controverted the facts underlying each of their claims. We won't walk through the court's seriatim rejection of these points (see slip op. at 16-43), but will note that the claims were rejected on evidentiary grounds, rather than substantive. The court concluded that the plaintiffs did not meet their summary judgment burden of coming forward with evidence to controvert the city's version of the facts. For example:

Nevertheless, as the City argues, the Fricks "did not provide a single piece of evidence substantiating their claim the contractors entered and damaged their property. In all likelihood, the Fricks have mistaken the public right-of-way as their property." The closest the Fricks came is in their reply to the City's motion for summary judgment, in which they presented additional statements of uncontroverted facts. In statement of fact No. 5, they stated, inter alia, that the City's contractor "damaged the parking areas of the Plaintiffs Ben and LaVelle Frick's property by turning vehicles around on their property without permission." The statement also contained allegations that the contractor prevented access to the relocation site. To support the statements, the Fricks cited to the record as follows: "See Exhibit 15 Wilson Engineering maps from File 65?WCEA File No. X2-41-014." However, the referenced maps did not provide any evidence that there was any trespassing or damage to the property as a result. Rather, the maps illustrated the design plan. Hence, the statements are not supported by the summary judgment record as required by Rule 141 (2009 Kan. Ct. R. Annot. 225). On appeal, the Fricks do not cite to any other evidence in the record on appeal.

Slip op. at 41.

Full post as published by inversecondemnation on July 13, 2010 (boomark / email).