[WSBARP] Permit that results in code violation; LUPA Applicable to City?

Thu Nov 6 16:53:48 PST 2014

A different approach:  RCW Ch 4.96  controls tortuous conduct of local governments.  Once you sort through the sovereign immunity issues you can try and find a duty owed by the municipality to your client and not just to the public at large. I’ve had success tracking down former employees and getting declarations I used to establish a special relationship between the municipality and my client. One declaration said something to the effect that the former building official was very familiar with the project and property, spoke frequently with the owner, knew the codes inside and out, and inspected and approved the structure that was later challenged. That was enough to get non-conforming use status. Some former employees will be more than happy to help…

RICHARD T. HOSS

rhoss at hctc.com

HOSS & WILSON-HOSS, LLP

236 W. Birch St., Shelton, WA 98584

Off: (360) 426-2999;  Fax: (360) 426-6715

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Samuel M. Meyler
Sent: Thursday, November 06, 2014 2:12 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Permit that results in code violation; LUPA Applicable to City?

Thank you, Steve.  

I have communicated with the planner.  The planner that actually approved the plans/permit is no longer with the City.  That is part of where the problem started.  The new planner assigned to the matter discovered the error.

We discussed a variance.  Although applying for a variance is a possibility, I am of the impression that there are no unique circumstances, unnecessary hardship or practical difficulty with respect to the condition of the property.  It is a flat, square lot that is comparable in size to other lots in the area with no access issues.

The architect is more than willing to assist in any way possible.  Although it appears that there was an error in the plan that may be the architect’s fault, the homeowner would much rather keep their home as is than pursue damages against the architect or their insurer.  

Samuel M. Meyler

Attorney at Law 

Mail:  P.O. Box 777 | Redmond, WA 98073-0777

Location:  8201 164th Ave. NE, Suite 200 | Redmond, WA 98052

Tel:  425.881.3680 | Fax:  425.881.1457 | Email:  samuel at meylerlegal.com

NOTICE:

This electronic message contains information which may be Confidential or Privileged and constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act 18 USC 2510. The information is intended to be for the use of the individual or entity named above.  If you are not the intended recipient, please be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited.  If you received this transmission in error, please notify the sender and delete the copy you received together with any attachments.  Thank you.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of swhite8893 at aol.com
Sent: Thursday, November 06, 2014 1:51 PM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Permit that results in code violation; LUPA Applicable to City?

Samuel,

    I don't have a good answer for you but can pass on a couple of quick thoughts.

    Case law relating to estoppel indicated that will estoppel can be asserted against the government, it is only allowed in very limited circumstances. 

    Have you communicated directly by phone with the planner handling this. Establishing that dialogue could be helpful. Would they be open to a variance?

    Who did the drawings? If  they were done by a professional of some sort, maybe engaging them in a resolution would be helpful.

Steve Whitehouse

Stephen Whitehouse

Whitehouse & Nichols, LLP

Attorneys at Law

P.O. Box 1273

601 W. Railroad Ave.

Shelton, Wa. 98584

360-426-5885

swhite8893 at aol.com

-----Original Message-----
From: Samuel M. Meyler <samuel at meylerlegal.com>
To: wsbarp <wsbarp at lists.wsbarppt.com>
Sent: Thu, Nov 6, 2014 1:16 pm
Subject: [WSBARP] Permit that results in code violation; LUPA Applicable to City?

Listmates,

I’m looking for your thoughts and any authority on the following fact pattern:  

Applicant submits application for construction of new home.  Square footage of the lot is inadvertently incorrect on the cover sheet of the plans, but the details and specific dimensions on all of the plans are accurate and clearly indicate that the square footage is over the maximum allowed for the lot.  City reviews everything, approves the plans, and construction begins.  Construction is 80% to 90% complete when City realizes there was a mistake and shouldn’t have issued the permit because the footprint is larger than the municipal code allows.   

City was paid to review the plans, made various requests for revisions to the plans throughout the process, approved revisions to the plans throughout construction, and didn’t catch the error until the house was nearly complete.  Now City requires a “plan” to resolve the overage (i.e. tear down a party of the house) and threatens to impose a fine for each day that the code violation persists.  

Shouldn’t the City be estopped for imposing a penalty based on the City’s negligent approval of the permit?  

Has the time to appeal the issuance of the building permit lapsed under LUPA?  

If the City is barred from disputing/appealing the building permit that it issued, does the fact that the City will still need to issue a final occupancy permit make the inability to appeal the building permit a moot point?   

Your thoughts, suggestions and any legal authority would be greatly appreciated.  Thanks!

Samuel M. Meyler

Attorney at Law 

Mail:  P.O. Box 777 | Redmond, WA 98073-0777

Location:  8201 164th Ave. NE, Suite 200 | Redmond, WA 98052

Tel:  425.881.3680 | Fax:  425.881.1457 | Email:  samuel at meylerlegal.com

NOTICE:

This electronic message contains information which may be Confidential or Privileged and constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act 18 USC 2510. The information is intended to be for the use of the individual or entity named above.  If you are not the intended recipient, please be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited.  If you received this transmission in error, please notify the sender and delete the copy you received together with any attachments.  Thank you.

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