North Oaks v. Sarpal: “simple mistake” not enough for estoppel

About the only benefit of not posting for six months is that this post about the North Oaks v. Sarpal decision out of the Supreme Court today is just above the post made when the Court picked up the case in October.  Enjoy the convenience.

Today’s decision sets things right, to some degree.  The Court, without dissent, reverses the decisions of the trial court and Court of Appeals which barred North Oaks from enforcing setback requirements because a City employee mistakenly gave Dr. Sarpal an incorrect survey.  On the other hand, unlike the slash-and-burn opinions written last year, this opinion goes to great (and unnecessary, in my view) lengths to limit the import of this opinion.  Despite running through all of the past precedent that indicated a high standard for “wrongful conduct,” the Court here will only definitively say that “a simple mistake by a government official is not wrongful.”  Things which may not be “simple mistakes” are left to be determined another day – a footnote clarifies that the Court is NOT stating that “negligence” is enough to support estoppel, just that stuff that isn’t even “negligence” isn’t enough.  This reads like more of a backtrack than judicial restraint – the most recent Supreme Court precedent backing this decision states that “some degree of malfeasance” is required for conduct to be “wrongful.”  Why back down from that, or suggest that the standard might be lower?  It seems like the Court could at least back up that standard and still avoid the dread “exact definition” of a crucial term in a legal test devised by the Court itself.

Even in timid form, however, this opinion heads off the threatened re-write of another land-use doctrine.  It’s a good thing, too, because it doesn’t seem like any of us are going to stop making mistakes anytime soon.

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Variance “Fix” Signed; Happy Days are Here Again

OK, that’s probably over-selling it.  But it is true that earlier this week the Legislature finished work on legislation to undo last summer’s Supreme Court decision and make zoning variances viable again, and the Governor signed the bill yesterday afternoon.  The new law is effective today.

The new law eliminates almost every difference that existed between the County variance law (MS 394.27, subd. 7) and the variance law used by cities and towns (MS 462.357, subd. 6).  Now everyone will use one standard, “practical difficulties,” defined this way:

“Practical difficulties” … means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality.

This law restores the common practice on variance that existed before the Krummenacher decision last July.  So, as of today, it is again worthwhile to consider a variance for a garage or an out-building – under Krummenacher, these could never happen because the property already had viable economic use in the form of the applicant’s house.