Municipal Liability: Neighboring Property Owner Loses Lawsuit Over City's Building Review
A state appellate court has rejected the argument of a landowner who claimed that the City of Fort Bragg was liable for losses suffered when the city approved an adjacent building.
In 1997, the city granted a building permit to David Codling for construction of a two-story building on a vacant lot next to the Barracks Mall, a two-story structure with businesses on the ground floor and apartments above. The Barracks Mall had been built to the lot line, and the city allowed Codling to do the same — putting his new structure within inches of the Barracks Mall. The new building cut off access to light, air and a fire escape for second-floor apartments in the Barracks Mall. Soon, some tenants vacated their units; other tenants were told to leave by the property owner because of the lack of a secondary fire escape. In time, the lack of rental income left the owners, Douglas and Jill Sutherland, unable to pay their mortgage, and they lost the property to foreclosure.
The Sutherlands sued the city under the Tort Claims Act (Gov. Code § 815.6), which makes a public entity liable for failing to discharge a mandatory duty. In this case, the property owners contended the city's Site and Architectural Review (SAR) Committee had a mandatory duty under the Fort Bragg Municipal Code to review Codling's proposed structure. The committee did not consider the application.
Mendocino County Superior Court Judge Conrad Cox issued a judgement on the pleadings for the city. The Sutherlands appealed, but a unanimous three-judge panel of the First District Court of Appeal, Division Four, upheld the ruling.
In an opinion written by Justice Patricia Sepulveda, the court contrasted "mandatory duties" with "administrative discretion," making clear that even the word "shall" does not alone support liability under the Tort Claims Act. The court cited Haggis v. City of Los Angeles, (2000) 22 Cal.4th 490, see CP&DR Legal Digest, April 2000, in which the state Supreme Court held the City of Los Angeles was not liable for landslide damages despite failing record a notice of substandard condition as required by city code. The court also relied on a case outside the realm of land use, Creason v. Department of Health Services, (1998) 18Cal.4th 623, in which the state was held not liable for failing to diagnose and report a minor's health condition.
"Creason and Haggis stand for the proposition that even where language in the predicate enactment appears mandatory, if significant discretion is required to carry out any duty imposed, that duty is not mandatory within the meaning of section 815.6 and thus a breach of the duty will not support tort liability," Sepulveda wrote.
In the Fort Bragg case, the city's municipal code mandates that SAR Committee perform certain functions. "But this mandatory language is coupled directly with subjective, general and advisory duties," Sepulveda noted. She cited municipal code language instructing the committee to encourage a "desirable environment" and to ensure the compatibility of development with its design concept. She also noted the committee's role is solely to advise decision-making bodies.
"We conclude that the City's site and architectural review committee exercises administrative powers that are general in scope, vague in formulation and advisory in function; powers that qualify, in a word, as discretionary," Sepulveda wrote.
The court also rejected the Sutherlands' argument that the city incurred liability for a mandatory duty under the Uniform Fire Code. "[I]t is evident that the dominant, the overriding, and quite possibly the exclusive purpose of review of building plans by the SAR committee is aesthetic and scenic, rather than the preservation of access to light and air from vacant adjoining lots or preventing the obstruction of windows so they may be used as fire exits," the court held.
Plus, the court ruled, while the city's fire chief has extensive discretion in interpreting the Uniform Fire Code, he does not have the authority to deny a building permit for a neighboring landowner.
The Case:
Douglas Sutherland v. City of Fort Bragg, No. A088919, 01 C.D.O.S. 340, filed December 19, 2000, ordered published January 10, 2001.
The Lawyers:
For Sutherland: Jone Lemos Jackson, (707) 962-0222.
For Fort Bragg: Andrea Saltzman, Meyers, Nave, Riback, Silver & Wilson, (510) 351-4300.