Building Permits and the Public Doctrine

Building Permits and the Public Duty Doctrine:

The South Dakota Supreme Court rules that a local government did not owe a duty to an individual class of persons to enforce local ordinances and state historic regulations.

By: Dave Pfeifle, Executive Director, South Dakota Public Assurance Alliance

Eachyeartensofthousandsofbuildingpermitsareissued by local governments across South Dakota as part of an effort to gain compliance with local building codes. A recent lawsuit illustrated the potential liability exposure withthepermittingprocess. Theadjacentpropertyowners to a new home constructed in the historic district of the McKennan Park area of Sioux Falls, SD commenced a lawsuitagainstthenewhomeownersandtheCityofSioux Falls, alleging that the new home violated state historic district regulations and local ordinances. As a Member of the SDPAA, the City of Sioux Falls was provided a defensetothelawsuit. TheCircuitCourt,SecondJudicial Circuit of South Dakota, granted an injunction requiring modification or reconstruction of the new home. The CircuitCourtalsoheldthattheCityofSiouxFallsoweda duty to the adjacent property owners to properly enforce local building codes and state historic district regulations. On appeal, the South Dakota Supreme Court affirmed the issuance of an injunction as to the new home owners, but reversed the Circuit Court’s ruling on the duty conclusion for the City of Sioux Falls.

The SD Supreme Court ruled in favor of the municipality due to the public duty doctrine, which holds that governmental entities generally owe a governmental duty onlytothepublicatlarge,nottoindividualsoraparticular class of persons. The SD Supreme Court held: [The] primary purpose of building permits . . . is to secure to local government consistent compliance with construction, zoning and land use ordinances. Building codes, the issuance of building permits, and building inspections are devices used by municipalities to make sure that construction within the corporate limits of the municipalitymeetsthestandardsestablished. But by issuing a permit, municipalities do not imply that the plans submitted are in compliance with all applicable codes. Local governments should not, for the particular benefit of individual persons, bear the burden of ensuring that every single building constructed within its jurisdiction fullycomplieswithapplicablecodes. Thedutyto ensure compliance rests with the individuals responsible for construction. Permit applicants, buildersanddevelopersareinabetterpositionto prevent harm to a foreseeable plaintiff than are local governments. McDowells v. Sapienzas & City of Sioux Falls, 2018 SD 1 at ¶ 39 (citations and quotations omitted).

The public duty doctrine avoids the unreasonable burden that would be placed on local governments if they were requiredtoensurethatallstateandlocallawsarefollowed by building permit holders and their chosen private contractors. Many South Dakota communities may have hundredsoreventhousandsofpermitsissuedandpending atanygiventime. Numerousopenpermitscouldnotallbe inspectedonaregularbasiswiththelimitedgovernmental resources available. An analogy often used is that law enforcement cannot attain full compliance with the speed limit laws despite their noble efforts.

This lawsuit is a good reminder that local governments needtotakestepstorecognizeandminimizeanypotential liability exposure from the permitting process:

1. Continue education efforts on applicable laws affecting the permitting process

Localgovernmentsshouldcontinuetheireffortstoeducate those in the industry on their applicable local building codes. These educational efforts may include providing brochures and/or informational sessions on the various codes as locally adopted.

2. Fully utilize any local boards established as part of the adoption of a particular code

Many codes as adopted by state and local governments include provisions to establish local boards that are often comprised of people with experience in that code. For example, larger communities may have local plumbing, electrical, or mechanical boards whose members are from those various trades. These boards serve as a sounding board to identify potential issues with various codes and also to help “spread the word” on any local code changes or issues. Larger communities may also work in conjunctionwiththesespecializedboardstoestablishtheir ownlicensurerequirementsforindividualcontractorswho wouldberesponsibletocomplywithlocalcodes. Itwould provide a comfort level for citizens to know that their chosen contractor has passed an examination demonstrating a minimum proficiency with the applicable code.

3. Considerpoolingofresourcestojointlyretainacode official

Localcommunitieswithouttheresourcestohiretheirown code official should consider joining with other communities to retain someone to perform that service on a contract basis. Local communities should consult with their legal counsel about the possible contractual arrangements for jointly retaining a regional code official. A regional code official could review building permit applications and perform building inspections as needed. This regional code official could identify emerging issues and suggest possible solutions for each of the contracting local governments.

4. Consult with legal counsel

The resources available and the procedures used by local governmentsinthepermittingprocesslikelyvaryasmuch as our landscape; after all, South Dakota is known as “the land of infinite variety. ” Local governments should consult with their legal counsel to ensure that their particular permit application procedures are able to identifyanypossibleissueswithanyapplicablelawsinthe building plans as submitted. Procedures may also need to be revised to address those situations where significant revisions or changes are made “in the field” after a permit is issued. A revision to the building permit application process may require the applicant/owner/builder to notify the permitting authority before implementing any significant change that would vary from the original plans as submitted.

Disclaimer: while the author is an attorney, this article is for general information purposes only and should not be construed as providing legal advice or opinions for a specific situation. The reader is encouraged to contact the attorney of their choice for any specific legal discussion and legal advice.

JE Marsh Consulting James Marsh, Owner

Employment Law Consultation; Arbitration; Mediation; Contract Hearing Officer got 30 y experience in helping people with W Compensation; EEO/Discrimination; FLSA; and Public Employee Laws (Collective Bargaining; Unfair Labor Practices; Grievances; Terminations). Let me help you! www.jemarshconsulting.com

JE Marsh Consulting, PO Box 188, Tripp, SD 57376 605-505-1401 | email: jamesmarshadr@gmail.com

Funding Available for Trails

South Dakota State Parks Director Katie Ceroll announced today that applications are being accepted for grants from the Recreation Trails Program (RTP). The grants will be available for trail projects sponsored by municipalities, counties, state parks, federal land management agencies or tribal governments.

“Whenitcomestopromotinghealthycommunities,recreationaltrailsarekey, ”Cerollsaid.

“Assafecorridorsforexerciseand recreation, trails give families the opportunity to spend quality time together and enjoy the natural beauty of our state. ”

The Recreational Trails Program provides partial reimbursement for approved trail projects. Eligible projects include construction of new public trails, rehabilitation of existing public trails, development of trail-related facilities and educational programs that relate to recreational trails. The application deadline is Friday,April 27, 2018.

RTPfundscometothestatethroughtheFederalHighwayAdministrationandareapportionedtostatesbyCongresstofundboth motorized and non-motorized public recreation trail projects. The amount of funds available is based upon the number of recreational vehicles licensed in each state.

ApplicationpacketsareavailableonlineattheGame,FishandParkswebsite.Formoreinformation,contactgrantscoordinator Randy Kittle at 605.773.5490 or randy.kittle@state.sd.us.

Department of Revenue Launches Live Chat Feature

TheSouthDakotaDepartmentofRevenue’scustomersnowhaveanewwaytoreceiveassistancefromthestate’staxexperts.

The Department of Revenue’s business tax division recently launched a live chat option, which allows customers to quickly receive answers to their questions. The live chat feature is available on all business tax related webpages as well as the state’s onlinetaxfilingandpaymentwebsite,EPath.

“The Department of Revenue’s top priority is ensuring customer-oriented, fair and reliable tax administration, ” Department of Revenue SecretaryAndy Gerlach said. “Our live chat feature will provide our partners with another convenient option to seek

assistancefromourdedicatedstaff. ”

TheDepartmentofRevenue’sbusinesstaxdivisionadministerssales,use,municipal,contractor’sexciseandtourismtaxesalong withthe911surcharge.

The live chat feature is available Monday through Friday from 8 a.m. to 5 p.m. CST. To launch a chat session, simply visit http://dor.sd.gov/Taxes/Business _ Taxesthenclickthechatbuttononthebottom,rightcornerofthepage.

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