Issuance of building permit by Minneapolis planner a discretionary function

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.

Iowa DOT cannot claim discretionary immunity from flood damages resulting from Highway 63 bridge

by Gary Taylor

Schneider, et. al. v. State of Iowa
(Iowa Supreme Court, September 3, 2010)

In the late 1980s, the Iowa Department of Transportation (DOT) developed a plan to relocate a portion of Highway 63 to bypass the city of Denver, Iowa. The plan called for the construction of a four-lane divided highway along the west side of the city and a bridge spanning Quarter Section Run Creek, a stream flowing through Denver. The original construction of the bypass commenced in 1993 and concluded in 1994.
In a flood insurance study commissioned by the city in 1990, the creek was designated as a “regulatory floodway.” A floodway “‘is the channel of a stream plus any adjacent flood plain areas that must be kept free of encroachment so that [a] 100-year flood can be carried without substantial increases in flood heights.’” The bridge and related structures were designed to accommodate a 50-year flood event.  A higher, 100-year flood standard was typically used by the DOT when sizing bridges in flood insurance study areas and in other locations where the risk of high damage would be created for upstream businesses and homes. The State’s expert conceded the higher standard would have been utilized in the design of the bridge had it been designed for construction in a floodway, but noted the State did not learn the site had been designated as a floodway until after the bridge was built.

In May 1999, Denver experienced an extraordinary rain event and resulting flood which damaged thirty-five homes and thirty-four businesses. The intensity of the rain produced a volume of rainwater in the floodway consistent with the magnitude of a 250-year flood.  A flood study undertaken by the United States Department of Agriculture Natural Resources Conservation Service concluded the embankment constructed for the bypass “cut off a large portion of the floodway,” causing water moving through it to “back up” during the 1999 event. Computer models prepared for the study illustrated that the bypass structures increased the depth of the 1999 flood waters by as much as three feet in certain areas of the city and caused flooding in a part of the city that would not have flooded but for the construction of the bypass. The models also produced evidence tending to prove the bridge and related structures would have caused flood waters in a 100-year flood event to rise higher in some parts of Denver upstream from the bridge than would have been the case had the bridge and related structures not been placed in the floodway. Following a lengthy period of study and investigation of a range of options, the State chose to redesign and extend the bridge. The reconstruction of the bridge and the reconfiguration of the floodway in 2004 and 2005 modified the elevation of the floodway along the creek and substantially enhanced the capacity of the floodway to convey water away from the city.  The reconstruction brought the bridge and related structures into substantial compliance with the 100-year flood standard.

Claims addressing the 1993 bridge.  Owners of several properties damaged in the 1999 flood filed suit alleging the State negligently designed and constructed the first bridge. The landowners alleged the State breached a common-law duty by designing and constructing the bridge in a manner that obstructed the floodway and increased the depth of floodwater during the 1999 event. The landowners further alleged the State breached a duty derived from Iowa Code section 314.7 proscribing disruption of the natural drainage of surface water when improving or maintaining a highway. The State’s answer asserted immunity from liability under Iowa Code section 669.14 because the design and construction of the project were discretionary functions and because the project conformed with a generally recognized engineering or safety standard, criteria, or design theory prevailing at the time of its design and construction or reconstruction. The district court found in favor of the DOT, and the Court of Appeals affirmed based on the immunity provisions in 669.14(1). The Iowa Supreme Court granted further review to determine whether the State’s immunity for discretionary functions was applicable under the circumstances presented in this case.

After addressing several procedural matters, the Iowa Supreme Court focused on the issue of discretionary function immunity.  The Court disagreed with the conclusions of the lower courts.  “Given the clear statutory and regulatory prohibitions against the creation of floodway encroachments causing increased risk of loss to upstream properties in the event of a 100-year flood, we conclude the discretionary function defense has no application in this case. The State’s employees could not choose to ignore these prohibitions, and they therefore did not have available to them a choice to design and build encroaching, noncompliant structures in the floodway. As there was no such choice available, the employees of the State who designed and built the bridge did not perform discretionary functions for which section 669.14(1) would offer immunity.”  Because a fact issue remains on the question of whether the original design and construction of the bridge as a floodway encroachment violated prevailing engineering standards in existence at the time of the original design and construction of the project, and/or violated the DOT’s responsibility to keep from diverting natural drainage waters onto adjoining landowners, this portion of the case was remanded. 

Claims addressing the reconstructed bridge.  The landowners claimed permanent devaluation of their properties by the reconstruction of the bridge and rechanneling of the floodway, saying that the reconstructed bridge still encroaches upon the floodway.  However, the Court concluded that the record demonstrates the reconstruction design satisfied the 100-year design standard and achieved the approval of the DNR. The plaintiffs failed to produce evidence tending to prove the reconstructed bridge does not comply with the 100-year standard, the generally accepted engineering standard in existence at the time of the reconstruction.  Therefore, the DOT was entitled to immunity under Iowa Code 669.14(8) which grants immunity if construction was “in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction.”

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