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

Thu Nov 6 17:06:12 PST 2014

Sam, you are correct on the vested rights doctrine. This is the seminal case I believe. Have used it a few times successfully.

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

Thomas J. Westbrook, PLLC

PO Box 1

Littlerock, WA 98556

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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 4:23 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Permit that results in code violation;LUPA Applicable to City?

Catherine,

My understanding of the vested rights doctrine is that it is applicable where there is a permit issued and there is a subsequent change in the zoning/code that would result in a violation if the permitted activity was judged under the new zoning/code.  There was no change in the zoning/code in the situation that I am working on.  Am I looking at this wrong?

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

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Clark, Catherine
Sent: Thursday, November 06, 2014 3:31 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Permit that results in code violation; LUPA Applicable to City?

Would the vested rights doctrine lend some help here? 

You might also look at Proctor v. Huntington for some help with the equitable arguments.

Catherine C. Clark

Law Office of Catherine C. Clark PLLC

701 Fifth Avenue, Suite 4105

Seattle, WA  98104

Phone:  (206) 838-2528

Fax: (206) 374-3003

Email:  cat at loccc.com

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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:

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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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