Summary
holding that a building-permit applicant was to be charged with knowledge of laws regulating permit and not entitled to damages resulting from city employee's mistaken issuance of building permit
Summary of this case from Ridge Creek I v. City of ShakopeeOpinion
No. 42140.
June 5, 1970.
Municipal corporations — action for damages — cancellation of building permit — failure to give notice of claim — effect.
On September 6, 1967, plaintiff property owners received a building permit from the city of Minneapolis, issued by one of its employees. On September 21, 1967, the permit was canceled upon the ground that the structure involved was a kind not permitted under the zoning ordinances. In the interval, plaintiffs incurred approximately $900 in nonrecoverable construction expense. No notice of the claim was given, as required by Minn. St. 466.05, until January 25, 1968. An application for a variance was submitted to the appropriate agency of the municipal corporation and denied on January 3, 1968. Held:
(1-2) Plaintiffs have no cause of action for the damages sustained as against the city of Minneapolis because if the issuance of the permit was not clearly illegal, the act of its employee in issuing it involved elements of discretion and judgment precluding recovery by reason of § 466.03, subd. 6. If the issuance of the permit was clearly illegal, so that no discretion or judgment should have been exercised by the city's employee, plaintiffs cannot recover because in such event they would be charged with notice of this illegality.
(3) Minn. St. 466.05 precludes recovery as against a municipal corporation on account of a claim, notice of which was not presented within 30 days after the alleged loss or injury.
Action in the Hennepin County Municipal Court brought by Jack E. Anderson and Shirley Anderson for damages allegedly sustained by reason of the withdrawal of a building permit by defendant city. The case was tried before James D. Rogers, Judge, and a jury, which returned a verdict for plaintiffs for $910. Defendant appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial. Reversed.
Keith M. Stidd, City Attorney, and Robert J. Alfton, Assistant City Attorney, for appellant.
Cochrane Bresnahan and James R. Bresnahan, for respondents.
Heard before Nelson, William P. Murphy, Sheran, Peterson, and James F. Murphy, JJ.
Appeal from an order of the municipal court denying defendant's motion for judgment notwithstanding the verdict or a new trial.
Plaintiffs, owners of real estate, sued the city of Minneapolis for damages which resulted when a building permit issued for the construction of a garage on September 6, 1967, was canceled as of September 21, 1967, upon the ground that the structure involved was of a kind not permitted under the applicable provisions of the Minneapolis zoning ordinance. A jury returned a verdict for plaintiffs in the amount of $910. This appeal followed the denial of the post-trial motion.
We are compelled to reverse for these reasons:
(1) The act of an employee of the city in issuing the building permit in a doubtful case involved an exercise of discretion in the sense that the city's employee had to make a judgment as to whether plans submitted in support of the application for the permit constituted a permissible use of the property in the area involved. State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 70 N.W.2d 404; Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W.2d 363; Lowry v. City of Mankato, 231 Minn. 108, 42 N.W.2d 553; Roerig v. Houghton, 144 Minn. 231, 175 N.W. 542; Lerch v. City of Duluth, 88 Minn. 295, 92 N.W. 1116. A claim based upon performance of, or failure to perform, a discretionary function or duty cannot be asserted against a municipal corporation, and this is true whether or not the discretion is abused. Minn. St. 466.03, subd. 6.
(2) If the proposed use authorized by the building permit was clearly illegal, so that no element of discretion or judgment should have been exercised by the city's employee, the owner is precluded from recovering damages because he and those who act for him are charged with the knowledge of the laws regulating the granting of the permit and any expense incurred is at the owner's risk, at least in so far as the city is concerned. W. H. Barber Co. v. City of Minneapolis, 227 Minn. 77, 34 N.W.2d 710; Newcomb v. Teske, 225 Minn. 223, 30 N.W.2d 354; The Alexander Co. v. City of Owatonna, 222 Minn. 312, 24 N.W.2d 244.
(3) Finally, there was a failure in this case to give the required notice of claim "within 30 days after the alleged loss or injury" as required by § 466.05. No notice of any kind was filed until January 25, 1968. The fact that the presentation of claim was deferred by plaintiffs pending determination of their application for a variance permit is immaterial. See, Johnson v. City of Chisholm, 222 Minn. 179, 24 N.W.2d 232.
Defendant's motion for judgment in its favor notwithstanding the verdict in favor of plaintiffs should have been granted.
Reversed.