Code Attorney

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.

Posted by Linda Pieczynski Category(ies): Building Codes, Court cases, Zoning Tag(s):

Of all of the structures I see without permits in court enforcement actions, decks have to be close to the top of the list. A recent case in Idaho, Wohrle, et al v. Kootenai County, 147 Idaho 267, 207 P.3d 998(2009) ended in a good result for the county. The plaintiffs built decks within the setback area of their properties without permits and without variances. After the fact they applied to the county for variances so they could keep their decks. The county said they hadn’t shown a hardship and denied the variances. The plaintiffs didn’t like that result and sued the county. They ultimately lost their case in the Supreme Court of Idaho because the court found they had not shown a hardship and their substantial rights were not violated. The Court very sensibly ruled that:

Respondents were not making lawful use of their properties when they built within the setback areas without first receiving a variance or building permit. In addition, even with the denial of the variance requests, Respondents are still able to use their property as permitted under state laws and regulations and county ordinances-all of which were in effect when Respondents purchased their properties. Respondents are not entitled to the granting of variances; instead, variances are issued upon the discretion of the Board. They are still able to put their property to reasonable use by using and enjoying a dock on Coeur d’Alene Lake, so no substantial rights have been prejudice.

Too often people on zoning boards feel sorry for the people asking for a variance because they spent a lot of money and it’s going to cost even more to come into compliance with the law. This court recognized that there is no reason to complain or whine if you acted illegally to begin with. Variances are not supposed to be issued because someone will be inconvenienced. In my opinion, the Board did the right thing in this case and so did the Court.

Posted by Linda Pieczynski Category(ies): Building Codes, Zoning Tag(s):

The recent case of Armstrong v. Mayor and City Council of Baltimore, 2009 WL 217867, expanded the definition of  “single housekeeping unit” to include an apartment with four bedrooms  and a common area with kitchen and bath facilities shared by 4 unrelated people, each of whom had a separate lease with the developer. The apartment building was made up of 26 four-bedroom suites.  The City contended that the apartments in the building were rooming units but because the ordinance did not have a strict definition of what constituted a single housekeeping unit, the court did not agree.  The code provided that a dwelling unit may not be occupied by more than one family.  A family was defined as no more than four unrelated individuals who live together.   None of the tenants had access to each other’s bedroom.  It seems to me that the lack of a clear definition of what constituted a “single housekeeping unit” led the court to make its decision.  It highlights how important definitions can be in zoning ordinances.   I had a case where the landlord chopped up a single family home into 3 units with a common kitchen.  Thankfully, the code was clear enough that he was forced to return the home to its single family character after his appeal was denied. Unless a local government doesn’t mind this type of result, it may want to check the definitions in its zoning code.

Posted by Linda Pieczynski Category(ies): Zoning Tag(s):