Posted by: Patricia Salkin | November 19, 2010

MN Appeals Court Holds City is Not Liable for Issuance of Building Permit by Mistake

A city planner issued a permit to demolish an existing house and build a new duplex on a 6,000 square-foot lot, based on a checklist of features. The planner mistakenly believed that the existing structure was a duplex, but was not misled by the owners. The ordinance requires a minimum lot size of 10,000 square feet if a duplex is to replace a single-family dwelling. After the demolition was complete and a foundation had been laid, the city issued a stop-work order. The owners sought a variance and the planner and planning commission agreed that one should be granted. The Board of Adjustment, however, denied the variance. The owners appealed and asserted that the city was negligent in issuing a permit and further, that the city should be estopped from denying the permit. The trial court held that the city was immune from negligence claims and also that the city was not estopped from denying a permit and not liable for damages.

The appeals court affirmed, holding that issuance of a building permit is a discretionary function for which a municipality is not liable under Minn. Stat. § 466.03. The checklist approach requires the municipal employee to make a number of decisions and the applicants, in this case experienced landlords, are charged with knowledge of the law. The owners did not establish malfeasance sufficient to support a claim of estoppel by showing that the letter informing them of the problem was dated three weeks before it was received.

Harmsen v. City of Minneapolis, 2010 WL 3307078 (Minn. App. 8/24/2010)

The opinion can be accessed here


Responses

  1. How would this decision be viewed in New York State?


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