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

Thu Nov 6 17:50:28 PST 2014

Yes, I have been considering the clean hands doctrine as well.  Do you
believe that it would bar relief given that the architect submitted the
materials?  In other words, should the architect’s knowledge of an extremely
specialized, licensed subject be attributed to the layman property owner in
a situation like this?  

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 Bryce Dille
Sent: Thursday, November 06, 2014 5:35 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Permit that results in code violation; LUPA Applicable
to City?

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.

This transmission contains confidential attorney-client communications and
may not be disclosed to any person but the intended recipient(s).  If this
matter is transmitted to you in error, please notify the sender immediately.

To ensure compliance with requirements imposed by the IRS, we hereby inform
you that any U.S. tax advice contained in this communication (including
attachments, if any) is not intended or written to be used, and cannot be
used, for the purpose of (i) avoiding penalties under the Internal Revenue
Code or (ii) promoting, marketing or recommending to another party any
matter addressed herein.

Bryce H. Dille 

Campbell, Dille, Barnett & Smith,  PLLC

P.O. Box 488

Puyallup, WA  98371

Voice:  253.848.3513

Fax: 253.845.4941

bryced at cdb-law.com

Business Entity Creation and Management

Business, Government and Tax Law

Real Estate and Land Use, Residential, Commercial and Condominium
Development

Real Estate and Commercial Transactions & Closings, Including Performing
Services as IRS Section 1031 Exchange Facilitator

Estate Planning, including Wills and Trusts, and Probate Administration

Representation Homeowners/Condominium Association Real Estate Developments

Real Property Foreclosures and Forfeitures

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

PO Box 1

Littlerock, WA 98556

Olympia Office:

Evergreen Plaza Building

711 Capitol Way S.

Suite 101

Olympia, WA 98501

Telephone: 360-357-7400     

Facsimile:  360-357-7414

Email:          <mailto:tjw at w3net.net> tjw at w3net.net

Skype: thomas.westbrook

The information contained in this email and attachment(s) are for the
exclusive use of the addressee(s) and may contain private, privileged and/or
confidential information.  If you are not the addressee, you are strictly
prohibited from reading, photocopying, distributing or otherwise using this
email or its contents in any way.  If you have received this communication
in error, please notify us immediately by telephone at 360-357-7400 or by
e-mail to  <mailto:cjw at w3net.net> cjw at w3net.net, and destroy the original
message from your electronic files.

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 1:15 PM
To: 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

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.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20141106/8b6f61c7/attachment.html>