Yesterday, the Supreme Court agreed to hear the appeal of North Oaks v. Sarpal. To refresh, this case started as North Oaks’ attempt to make a homeowner move a shed to comply with setbacks. The trial court and the Court of Appeals blocked the City’s action, concluding that because the City (unwittingly) gave Sarpal a flawed property survey map and assured him it was correct, the City was barred from enforcing the correct setbacks.
In a previous post, I hoped that review would be granted, since this Court of Appeals opinion is way out of step with past precedent and current practice. The doctrine at stake here is “equitable estoppel” – when does “fairness” require that an owner get a pass on a zoning violation? Since 1980, it’s required “wrongful conduct” on the part of the government. Subsequent interpretation, confirmed by the Supreme Court in 2006, pegged that phrase to mean “malfeasance,” i.e. somebody attempting to harm the owner. In general, this is good policy; you shouldn’t get a variance from existing law through the mere bumbling of public officials. This is especially true in the wake of Krummenacher A City planner has no power to change the zoning code intentionally, and the City Council can’t grant a variance short of a taking, so why should we allow these things to happen because the maps on file at the City are flawed, but nobody’s caught it yet? If the city staff has maliciously set you up, then that’s different. If you can prove that, you’ll possibly get a break (there are three other factors to meet first).
The current result in Sarpal eliminates “malfeasance,” and drops the bar down to “mistake.” Or maybe, “confident mistake” since it’s the insistence of North Oaks planners that the survey map was correct that really seems to get the Courts’ attention (the trial court applied estoppel, the Court of Appeals decided that wasn’t erroneous or an abuse of discretion). Now we wait to see if the Supreme Court remains consistent with its 2006 holding and reverses, or if another portion of land-use law gets substantially rewritten by the Court.