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Thread: Accountability for "illegally issued variances"

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    Accountability for "illegally issued variances"

    Is there legal accountabilty for jurisdictions that have illegally issued variances. For example, a recent case has made a determination, a finding in the variance decision is illegal, this same finding can be found in the last decade of variance decisions. Can the municipality still be held liable for any damages that may have occurred due to the decision, even though the appeal period has expired for these permits?

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    Cyburbian Emeritus Chet's avatar
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    Interesting question - I suspect there is case law out there somewhere!

    I would suspect that, if the appeal period is over, that the community can not be sued for damages. In our state (WI) the period to appeal is 30 days from the date of the written decision letter. After that, out of luck.

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    Very interesting. I suppose someone could challenge the validity of the ordinance based on past rulings of the board of adjustment. I think if that happened, then the court could probably say that the city needed to change the ordinance (ordinance is arbitrary, capricious, or illegal) or go back and correct the past problems. I wonder if it is different then a building permit that is approved in error. It may have been approved, but it still needs to be built to the proper code. If it is, then the city would certainly have some liability.

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    Quote Originally posted by cololi
    Very interesting. I suppose someone could challenge the validity of the ordinance based on past rulings of the board of adjustment. I think if that happened, then the court could probably say that the city needed to change the ordinance (ordinance is arbitrary, capricious, or illegal) or go back and correct the past problems. I wonder if it is different then a building permit that is approved in error. It may have been approved, but it still needs to be built to the proper code. If it is, then the city would certainly have some liability.
    Nothing wrong with the variance criteria itself, just improperly interpreted, a conclusion within the variance critera not substantiated by case law. Good point about the building permit though. Building permits are not the same kind of permits as land use though, building permits being ministerial with no appeal period and land use being generally discretionary with some kind of appeal period.
    I will redirect my research with the same kind of logic applied to building permits, you issue permit, roof cave in and hit head, me sue you.

    There has to be some evil land use lawyers cruising the site, help a brother out...please.

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    Cyburbian mike gurnee's avatar
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    A variance granted, however erroneously, is valid if not appealed to the courts within the proscribed time frame. The real problem occurs politically when such variances become precedents. I have been there...most of us either have or will someday. Our current zoning code specifically states that variiances are not to be considered precedent for future land use decisions.

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    Quote Originally posted by mike gurnee
    A variance granted, however erroneously, is valid if not appealed to the courts within the proscribed time frame. The real problem occurs politically when such variances become precedents. I have been there...most of us either have or will someday. Our current zoning code specifically states that variiances are not to be considered precedent for future land use decisions.

    The variance criteria I am speaking to, is the criteria on the granting of special priveleage. We have been pointing towards legal nonconforming uses in the surrounding area, predating the current code and using these nonconforming uses as justification for a granting of special priveleage has not occurred. If one ponders the logic in this, the intent of zoning is quickly lost. Now, as everyone knows, it is well established case law, one cannot point to your neighbor's legal nonconforming use and think, they are doing it, why can't we to justifiy the requested variance. However, other variances similar to the one being reviewed in the surrounding area which were approved can be used as a ...precedent or basis for stating a grant of special priveleage is not occurring.

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    Cyburbian munibulldog's avatar
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    I could see a lawsuit where a judge would rule that a muni would have to review its zoning code. Following the logic that since you have granted X number of similar variances with the finding that there are many existing similar nonconforming uses, apparently the nonconforming use is acceptable and should be permitted. The judge would probably throw it back to the Planning Commission or City Council and tell them to fix the ordinance, with some vague guidelines. Once the ordinance was amended, then no more similar variances should be granted (in theory).

    As far as damages to be paid out to a complainant, I don't know, probably only a top notch land use lawyer in your state could give you a good answer on that.

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    Cyburbian Emeritus Chet's avatar
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    Quote Originally posted by acchhhoooo
    The variance criteria I am speaking to, is the criteria on the granting of special priveleage. We have been pointing towards legal nonconforming uses in the surrounding area, predating the current code and using these nonconforming uses as justification for a granting of special priveleage has not occurred. If one ponders the logic in this, the intent of zoning is quickly lost. Now, as everyone knows, it is well established case law, one cannot point to your neighbor's legal nonconforming use and think, they are doing it, why can't we to justifiy the requested variance. However, other variances similar to the one being reviewed in the surrounding area which were approved can be used as a ...precedent or basis for stating a grant of special priveleage is not occurring.
    Wait, are you talking use variance or dimensional variance? They are different animals.

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    Quote Originally posted by Chet
    Wait, are you talking use variance or dimensional variance? They are different animals.
    We don't have use variances, we call those rezones.

    Quote Originally posted by munibulldog
    I could see a lawsuit where a judge would rule that a muni would have to review its zoning code. Following the logic that since you have granted X number of similar variances with the finding that there are many existing similar nonconforming uses, apparently the nonconforming use is acceptable and should be permitted. The judge would probably throw it back to the Planning Commission or City Council and tell them to fix the ordinance, with some vague guidelines. Once the ordinance was amended, then no more similar variances should be granted (in theory).

    As far as damages to be paid out to a complainant, I don't know, probably only a top notch land use lawyer in your state could give you a good answer on that.
    The conversation of adjusting our ordinances to reduce the number of variances has been had many of times. The main problem is, we grant over a 100+ variances a year and it is not over one particular dimensional element. We don't strictly adhere to the variance criteria for approval or denial and the most blatant example is the topic of this thread. Our code sucks and everything needs to be changed. Thanks for the comment and it would be a good way to address our issues.

    Back to the original question for all you land use lawyers in the state of Washington, does a municipal have a liabilty for the issuance of land use decisions which are past the appeal period and are essentially decisions issued on invalid grounds.
    Last edited by NHPlanner; 16 Dec 2004 at 1:01 PM.

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    Cyburbian michaelskis's avatar
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    I would think that the municipality would not be held responsible. The variance is issued by a Zoning board of appeals, which is almost like a pseudo judicial board with the city on one side, and the applicant on the other.

    Many municipalities keep their ZBA separate from the city for legal purposes.

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    Cyburbian Emeritus Chet's avatar
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    Quote Originally posted by acchhhoooo
    We don't have use variances, we call those rezones.
    Back to the original question for all you land use lawyers in the state of Washington, does a municipal have a liabilty for the issuance of land use decisions which are past the appeal period and are essentially decisions issued on invalid grounds.
    I'm not an attorney, but even after the appeal period, I would think that a civil court court award monetary damages to a party that tangibly suffered from the decision.

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    Quote Originally posted by michaelskis
    I would think that the municipality would not be held responsible. The variance is issued by a Zoning board of appeals, which is almost like a pseudo judicial board with the city on one side, and the applicant on the other.

    Many municipalities keep their ZBA separate from the city for legal purposes.
    hmm, good point. We have an administrative position and process which issues the decision, we have no BZA. The position is appointed by the public works director and serves at his/her leisure. In my case, the decision making body is part of the city government. I'll follow up on this lead as well, I was always under the impression BZAs and Planning commissions were set up to avoid corruption as oppossed to legal accountability. Maybe a little bit of both huh?

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