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Mandamus and the limits of immunity

January 6th, 2010 Leave a comment Go to comments

Sometimes a building code official may become a defendant in a mandamus action.  A mandamus action is a lawsuit wherei nthe plaintiff tries to compel a governmental official or entity to perform a duty, such as issuing a building permit that has been wrongfully withheld.  A recent case out of Minnesota, Pigs R Us, LLC v. Compton Township, 770 N.W.2d 212(2009,

describes a mandamus action where a township revoked a building permit that had been properly issued for a swine facility.  The owner filed a second application that was not processed and the township passed an interim zoning ordinance that required the facility to have a special use permit.  The owner filed a mandamus suit to compel the township to issue the building permit.  Mandamus by definition only applies to non-discretionary acts. Issuing a permit is a ministerial act so the Court ordered the Township to issue the permit because the plaintiff complied with the law in effect at the time he filed it.  It also found that the township had acted arbitrarily in passing the new ordinance. The township officials tried to claim that they were immune from the lawsuit but the Court found that the Municipal Tort Claims Act applied only to tort actions and not mandamus actions.  The case was sent back to the lower court to decide if damages should be awarded in this case.  Building code officials must always be aware that if they fail to perform a ministerial duty, a mandamus action is possible.  This case demonstrates that the building code official cannot always rely on qualified immunity to get him or her dismissed from a lawsuit which is what the township board members sadly discovered.

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  1. John Caywood
    January 7th, 2010 at 05:56 | #1

    Would issuing an entry affidavit to a condemned structure and then revoking the affidavit fall under a ministerial act? Sometimes we revoke a permit because the an applicant appears to be using the affidavit to occupy the premises and not for the intended purpose of correcting repairs.

  2. January 7th, 2010 at 07:08 | #2

    The real issue here isn’t so much what kind of act it is but whether you’ve given the person holding the permit due process before you revoke it. A person who has a valid permit has a vested property right in it and taking it away without due process violates the 14th Amendment. In order to avoid a civil rights suit, it is necessary to follow the due process rules in your state for revoking permits.

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