Zoning dispute:Takings lawsuit

[Phillip Oberg]

During the last 20 months our municipality has been involved in a bizarre zoning dispute. Briefly, new homeowners submitted a building sketch with permit application, Zoning Administrator visited site and approved permit. When home was 60% built complaining neighbors convinced zoning administrator that the home violated rear lot line setback. Zoning ad. issued cease and desist order based on his feelings that the house was 12 degrees different from plot sketch and now the previous rear lot line was side lot line/ & side was the rear.Since setbacks were different (50' for rear and 10" for side) the home now violated ordinance. Board of review upheld his decision and would not grant variance.

Judge that heard the case, felt they were forcing outdated ordinances which applied to 4 sided lots on this 5 sided property and ruled for the landowners. Landowners attempted to settle with the insurance company but were denied.

What are your feelings on the merits of the case as a "taking" of property under the 5th amendment to recover Legal and other damages to the homeowner? Any ideas or opinions would be appreciated.

[Linden Smith]

While your zoning administrator could have done a better job, they can't be everywhere at once. It sounds like the plat was a confusing one and if human error is involved it would be the plat or survey of the site. I am suprised that the Board of Review would not grant a variance, sounds like a textbook case of a hardship not of their own making, (in the lots configuration). It seems that is what the Judge was ruling on

If you are looking to sue someone, it would be the surveyor or architect who drew up the plans and sited the foundation. The fifth amendment of the constitution would have no bearing on this.

[Perry Norton]

So where does the matter now stand? The "taking" thing sounds pretty far off. On what does it base a conclusion?

[Dan]

Posted by Phillip Oberg on April 20, 2001 at 17:07:10:

In response to: Re: Zoning dispute:Takings lawsuit posted by Perry on April 20, 2001 at 12:12:48:

As I understand, takings based on property owners unable to
use property for 6 months because the municipality could not
interpret their own ordinance correctly-as stated in the
judges decision. Interestingly, the variance was denied by
the appeals board because the municipality attorney advised
against it, stating it would set a precedence!
Some members of appeals board were disgusted that
landowners were from out of town and had used out of town
builders! (This was actually stated at the hearing)
As far as I know the landowners, now moved into the house
for nearly a year, are debating the lawsuit angle to recover
attorneys fees.
As a side note, a permit was granted to
construct a house just across the street from this one which
was staked, then built, partially on an adjoining lot. No
"cease and desist" order issued here though as the owners
and builders were local. You gotta love small town politics!

[Linden Smith]

Posted by Linden Smith on April 23, 2001 at 13:28:05:

In response to: Re: Zoning dispute:Takings lawsuit posted by Phillip Oberg on April 20, 2001 at 17:07:10:

There is zero claim to a governmental "taking" here.

Actually, it serves as a very good example. To really screw things up you need a professional. Consider that the Review Board was correct, local contrators may not have made such mistakes. Also, they did preserve their discretion, they may need to deny applications in the future and are not bound by the judge's actions, thereby requiring them to approve all similar future cases.
As for the delay of six months, the homeowners should have taken a little more time in getting the plans and survey for the foundation correct. Also, they need to respect the neighbors, sounds like they are not happy with the new folks. None of that is the responsibilty of the government to take care of for the property owner.