Arbitrary enforcement of code. Can our town be sued?

[MLH925]

Our design review board has the last word when it comes to location, site design, and building design. The city adopted a set of guidelines for our "traditional town overlay" district (written by Dover/Kohl in 2000) that requires all new commercial buildings in the district to be at least 2 stories tall.

A gas station was just approved that is only one story. However, the two other business facing the same intersection (and in the same district) were required to be two stories and built that way.

The review board did not give a specific reason why the gas station was given a variance from the code. There were no significant trees to save and no power lines to duck under. There were several other design requirements that the board ignored as well.

Can the town be sued if they do not enforce the code in a consistent manner, or without giving a specific reason for requiring one building to comply while another does not? I don't think "arbitrary and capricious" is the correct legal speak in this situation, but there must be some precedent.


We are about to adopt a municiple wide form based code written by Opticos, and I'm wondering what the point is if it isn't going to be enforced.

Thanks,

LH in Port Royal, SC

[stroskey]

If your other developers have the time and money to sue you might be in trouble.

Where I live storage units, gas stations, and other "low" buildings other have to build up to meet code. Unless there is a topographical issue or an exclusion for gas stations written in the code you could be in trouble. Better hope the judge sees it as sever-able, or only this part of the code is wrong, not the entire code.

[reimaginethis]

Can the town be sued if they do not enforce the code in a consistent manner, or without giving a specific reason for requiring one building to comply while another does not?

Yes.

And 'arbitrary and capricious' is the exact wording you will see on the complaint if when you are sued.

[Suburb Repairman]

Yes, your city could be in trouble, particularly depending on how the judge assigned to a hypothetical court case views severability.

That said, I doubt you'll see the developers of those other two corners turn around and sue--their product is already on the ground and they are already making money off of it. Developers aren't in the business of paying lawyers and going to court just for the hell of it. Now if their proposed project got shot down AFTER that gas station was approved, then you can bet your ass that you'll be scheduling depositions and having more meetings with your city attorney than you would care to.

[luckless pedestrian]

I have seen a case though where the court said if someone asked for enforcement action and the code enforcement officer doesn't do it, that there is nothng to appeal