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

[Bryce Dille]

I think there is a problem with the "clean hands doctrine" since as I understand the facts the client knew or should have known that he couldn't build the house as planned under current zoning yet went ahead and submitted it anyway and now is relying on a mistake of an official acting in a governmental capacity.

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Bryce H. Dille
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Tom J. Westbrook
Sent: Thursday, November 06, 2014 5:31 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Permit that results in code violation; LUPA Applicable to City?

Sam, the below is a section out of a LUPA opening brief that I was involved with earlier this year. Maybe you can find better authority than me, but it is tough getting estoppel where the city is dealing in a governmental capacity vs. proprietary capacity. The key is finding a "manifest injustice" from my understanding and given your client's position on completion of the home and their reliance being created by the official and the massive construction costs and financing issues of compliance with their current position, it may be worth a shot. You may need to send this to a Hearing Examiner by contesting the current land use decision before it can go to LUPA petition. Check the local ordinance on procedure.

Here's the piece on estoppel:

.....then went on to discuss reasoning dealing with equitable estoppel citing the Court of Appeals case, City of Mercer Island v. Steinmann, 9 Wash. App. 479, 481-82, 513 P.2d 80, 82-83 (1973), stating that a municipality is not precluded from enforcing zoning regulations if its officer has failed to properly enforce regulations. However, our Supreme Court has stated that estoppel will not be applied against a municipal corporation acting in a governmental capacity unless it is clearly necessary to prevent obvious injustice, stating that "whether or not the doctrine is to be applied in a given instance depends upon the particular facts and circumstances of the case." Bennett v. Grays Harbor County, 15 Wn.2d 331, 341, 130 P.2d 1041 (1942). The Court went on to state the general rule is that it will not be applied against such political entities when not acting in a proprietary capacity, nor unless its application is clearly necessary to prevent manifest injustice. Id, at 341, citing 19 Am.Jur. 818, et seq., Estoppel, §§ 166-168; 31 C.J.S. 411 et seq., Estoppel, §§ 140, 141. Accordingly, our Supreme Court has further stated that "the evidence must present unmistakable justification for imposition of the doctrine when a municipality has acted in its governmental capacity." State v. Charlton, 71 Wn.2d 748, 430 P.2d 977 (1967). The administration of zoning ordinances is a governmental rather than a proprietary function. City of Mercer Island v. Steinmann, 9 Wn. App. 479, 482, 513 P.2d 80, 83 (1973).

Hope this helps some.

Sincerely,

Tom

Thomas J. Westbrook
Attorney at Law

Thomas J. Westbrook, PLLC
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Samuel M. Meyler
Sent: Thursday, November 06, 2014 1:15 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
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<mailto:samuel at meylerlegal.com>

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