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Issuance of building permit by Minneapolis planner a discretionary function

December 20th, 2010

by Melanie Thwing

Harmsen v. City of Minneapolis
(Minnesota Court of Appeals, Aug 24, 2010)

The Harmsens own numerous rental properties near the University of Minnesota campus in Minneapolis. Wishing to build more rentals, they purchased a single family home and filed for a demolition permit as well as a building permit for a new duplex to be built in its place.

City planners in Minneapolis approve 1-4 unit dwellings, which for building permits requires the planners to complete a checklist. Required criteria include the site plan, zoning classification and interior/exterior plans. The Harmsen’s plans met the checklist, and McCartney, who is a senior city planner approved both permits; however, according to the Minneapolis zoning ordinance duplexes must be constructed on a lot with at least 10,000 square feet, unless an existing duplex is being replaced.  The lot that was purchased did not meet this requirement, but McCartney did not check into the existing structure before issuing the permits.  The existing structure was demolished and a foundation for the duplex was poured.  Soon after, neighborhood groups contacted the city with concerns. On May 29th the city revoked the permit via letter (the letter was dated May 8th ) and on May 30th a stop-work order was posted.

After the Harmsen’s request for a variance was denied, they filed suit in district court. Summary judgment was granted for the city on the grounds of the doctrine of discretionary immunity.  The district court determined there was a lack of evidence sufficient to support Harmsen’s claim of equitable estoppel. The Harmsens then appealed to the Court of Appeals, arguing that the district court erred in granting summary judgment.

Discretionary immunity is given for discretionary functions, which typically include planning-level decisions involving weighing social, political, and economic factors. This however, does not include day-to-day ministerial functions of the government. Previous Minnesota caselaw has affirmed that the issuance of a building permit is a discretionary function because an employee must “make a judgment as to whether plans submitted in support of the application for the permit constitutes a permissible use of the property in the area involved.”  The Harmsen’s argue that use of a checklist does not constitute the use of discretion. After reviewing the checklist the Court concluded that city planners are trusted to make a number of discretionary decisions in the permit granting process. 

The Harmsens pointed out that a narrow exception to the rule was articulated by the Minnesota Supreme Court in Snyder v. City Minneapolis.  Under Snyder, “ city employees do not have the discretion to approve permits in clear violation of the law, and an applicant cannot reasonably be charged with knowledge of violation if the city maintains an unwritten policy contrary to published law.” The Harmsen’s first argue under Snyder that the city was negligent when it issued the permits and that thus this was not a discretionary function. Further the Harmsen’s argue that there are unwritten guidelines when approving certain permits that allow a little bit of latitude on lot sizes. The Court of Appeals found that the Harmsens did not present any evidence to to substantiate this clam. Further § 546.410 had been in place since 1995, and the Harmsen’s own many properties in the area. Again, the court rejects the precedent from Snyder and the city maintains its discretionary immunity.

Finally the Harmsen’s argue that the city should be equitably estopped from denying the permit because they relied in good faith on the city. An equitable estoppel may be given when the owners “(1) rely in good faith (2) upon some act or omission of the government, (3) and have made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights which he ostensibly had acquired.”  For this claim, the Harmsen’s sole claim of municipal misconduct was that the city held the revocation letter from May 8th when it was dated, to May 29th when it was sent.  McCartney testified, however, that she did not learn of the problem until shortly before the letter was sent. Electronic evidence also proved this. The Court of Appeals found that this alone was not a sufficient showing of malfeasance to warrant equitable estoppel. The Court of Appeals affirmed the judgment of the district court.

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