San Francisco Planning Commission Discretionary Review Application False Statements

April 22, 2022 Post a Comment

The Myth of Public Agency protection in the Building Permit Process

During the concluding decade the Bay Area has experienced a dramatic surge in the corporeality of construction projects undertaken past private property owners. In the Urban center of Santa Clara, for instance, the value of edifice permits issued in 1996 was $251,175,782.00, the highest since 1984. As some other example, the City and County of San Francisco issued 51,000 residential and commercial building permits for the 1997 fiscal year which totaled $873 meg dollars. For the 1998 fiscal year the San Francisco Section of Building Inspection estimates the value of building permits issued to be a staggering $1 billion dollars.

Despite the large number of privately-financed construction projects in the Bay Area, in that location is a common public misconception in California concerning the building permit process and the role that local, metropolis and land agencies play in overseeing this process. It is commonly perceived that the building permits that are routinely issued by city building inspectors for construction work certify that the building or "work of improvement" is quality built, safely constructed, and that all of the relevant building and state Health & Safety Code requirements have been met. The reality behind what a building let represents, yet, is quite different.

Under current statutory schemes, local municipalities and city public agencies are essentially stripped of whatsoever responsibleness for the work performed by their building inspector employees and the permits that these inspectors issue. In truth, a edifice let is little more than than a statement by the local municipality that the homeowner or developer who contracted for the work of improvement has paid the requisite fees to the local city housing government. A building allow does not stand for that the construction that was undertaken is safe and free from defects or that all of the necessary edifice codes have been strictly complied with. Past explaining the building allow procedure in item, this article will uncover the myth that the issuance of a building let past a public agency guarantees that your habitation or work of improvement is safe, gratis from whatever defects, and is lawmaking compliant.

The Building Permit Procedure

A Primer Building a home or contracting for a work of improvement on your property can be an uneasy, center-opening experience. Belongings owners seeking to build or better their holding often need to rely on the expertise of a licensed contractor who is competent in the particular work that must be performed. For example, if you are putting a new shingle roof on your abode, you lot would likely rent a licensed roofing contractor who specializes in installing shingle roofs. Difficulties presently arise however, because many property owners are not familiar with the myriad regulatory building requirements that state and local agencies impose upon those who seek to better their ain private property.

The legislative trunk of a city is empowered under the California Constitution to regulate the building, construction, and removal of buildings within the city. The relevant state and local building agencies have adopted building requirements that are, in big measure, based upon the Compatible Edifice Code (UBC). The UBC is published every three years by the International Briefing of Building Officials (ICBO) and its intent is to impress reasonable standards of construction and safety upon the building public. Every bit such, the UBC applies to virtually annihilation that is built or constructed (including single and two-family dwellings), except for work located primarily in a public fashion, public utility and power poles, and other mechanical equipment not specifically regulated by the code.

As part of its general law ability, cities and counties may and do crave that a building permit be obtained prior to the erection of a structure on privately owned property. As part of its many detailed requirements, the UBC requires that a edifice permit commencement be obtained from the applicable public agency/building official prior to whatever construction, repair or alteration of a building or structure. To obtain a permit, the building applicant must pay a statutory fee and file an application in writing on a form furnished past the code enforcement bureau which identifies and describes the work to exist covered by the allow. Plans, diagrams, computations and specifications are also required to be submitted along with the application for the building permit. One time submitted, the application and its accompanying information are and then reviewed by the building official and past whatever other required departments to verify that the proposed work of improvement complies with the applicable building laws of the jurisdiction. If the building official finds that the requisite fee has been paid, and the work described in the permit application conforms to the requirements of the local edifice code and other pertinent laws and ordinances, the official will issue a building let to the applicant. Most cities gear up specific time limits for the expiration of building permits that are issued, for example the UBC specifies that a permit will expire and become null and void if the work authorized by the let is not commenced inside 180 days.

One time a building permit has been issued past the metropolis building department, the inspection procedure begins. Under the UBC, all construction or work for which a permit is required is subject to inspection by the building official. Employees of urban center building authorities, often called "edifice inspectors," have the authority to make routine visits to the construction site to inspect the work that is being performed and to ensure that it complies with the city's particular building codes and various state codes such as the California Wellness & Rubber Code. Afterward inspecting the construction during a given visit, the edifice inspector will typically make an entry on an inspection record carte du jour that has been posted by the contractor in gild to chart the progress of the work of improvement. The inspector volition either betoken that the completed portions of the construction are satisfactory, or will notify the permit holder that the work to date is not in compliance with the relevant building codes. Any portions of the work which do not comply must be corrected earlier they can otherwise be concealed or covered up. Once the construction is fully completed, the building inspector will make a final inspection to corroborate the building or structure as beingness ready for occupancy and use.

In the structure of commercial buildings and structures, the final approval is marked by the issuance of a final Certificate of Occupancy. It is this concluding stage of the building permit procedure that is greatly misunderstood past property owners. Suppose that a twelvemonth afterwards the construction of a woods patio in the dorsum yard of your home, i of the floor boards comes loose because the nails used by the contractor were too minor and non code compliant. As a issue, your child steps through the loose lath while playing on the patio and injures herself. What legal recourse practice you accept available? While yous may accept a cause of action against the contractor (assuming yous used i) for the negligent and defective workmanship, you lot probable have no legal right to sue the edifice inspector and/or the metropolis building authorization for negligently granting its approval of the construction in the showtime identify. The reality is that if a building inspector fails to inspect your holding or inspects the work that was done in an incompetent manner and then problems a final approving for the piece of work that was inspected (or a Certificate of Occupancy for commercial structures), and an injury afterward occurs because the piece of work turns out to be defective, the city is about always immune from any liability. The reason for this seemingly unfair result is based upon the long-standing legal doctrine in California known equally "sovereign immunity."

Sovereign Immunity

Public Agencies and the Principle of Sovereign Immunity Founded on the aboriginal principle that "the King can practise no wrong," sovereign immunity is a judicially created doctrine which precludes individual parties from bringing suit against the government for the torts of its officers or agents unless the authorities waives its immunity by statute. The doctrine arose originally to allow states to exercise their governmental functions without fear of being sued as a outcome of the carelessness or mistakes of its officers and agents in the discharge of their official duties.

In California, the doctrine of sovereign immunity is codified in Government Code department 815. Section 815, enacted by the legislature in 1963 as part of the "Regime Tort Claims Human activity," abolished all common constabulary or judicially declared forms of liability for public entities, except for such liability as may exist required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may only be held legally responsible if a statute specifically declares them to be liable.

In short, the legal doctrine of sovereign amnesty is the rule in California and governmental liability is therefore limited to exceptions specifically set forth by statute. In regard to licensing activities by public agencies, Regime Code department 818.four provides that a public entity is not liable for an injury caused by the issuance (or by the failure or refusal to consequence) "whatsoever permit, license, certificate, approval, guild, or similar authority" if the public entity or an employee of the public entity is authorized by enactment to decide whether or not such a let should be issued. Further, Authorities Code section 818.6 deals specifically with inspections of physical holding and provides in relevant part: [a] public entity is not liable for injury caused past its failure to brand an inspection, or by reason of making an inadequate or negligent inspection, of any belongings, other than its holding..., for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.

This sovereign amnesty for public agencies is extended to public employees through Department 821.4 The scope of public agency immunity nether the statutes is quite broad since the term "injury" is divers in Regime Code department 815 as "decease, injury to a person, damage to or loss of property, or any other injury that a person may endure to his or her person, reputation, character, feelings, or estate, of such nature that it would exist actionable if inflicted by a private person." Thus, in the context of public building agencies which are empowered to regulate and oversee the construction of a work of improvement on your private belongings, these agencies or their edifice inspectors cannot be held liable if you or someone else is injured on your belongings, or your property is damaged due to a lacking status in that work of improvement that was previously approved every bit being code compliant past that agency or inspector.

The Realities of Public Agency Immunity

The Harshbarger Decision The harsh realities of the sovereign immunity doctrine in the area of a public agency's issuance of building permits is clearly illustrated in the example of Harshbarger v. City of Colton, a 1988 stance from the California Courtroom of Entreatment, Fourth Commune.

In Apr of 1984, the Harshbargers contracted with a general contractor for construction of a unmarried family unit residence to be congenital on their belongings in the Urban center of Colton. During the fourth dimension the Harshbargers' residence was under construction, two building inspectors inspected the residence to ensure that each phase of construction complied with applicative building codes. Equally a event of their inspections, the ii inspectors were aware that certain areas of construction did not see various building code standards. Nevertheless, after each of their inspections, both inspectors signed the job card maintained in connectedness with the construction of the residence, the signing of which constituted their acknowledgment that construction at that phase complied with applicable building codes and permitted the next stage of structure to begin. Neither inspector ever disclosed to the Harshbargers that the construction on their residence violated the City's edifice codes.

The general contractor stopped work on the residence in late July or early August of 1985. In August of 1985, the Harshbargers received a alphabetic character from the City of Colton stating that the residence did not comply with numerous applicable building codes. Equally a effect of the defects in construction, the Harshbargers paid approximately $295,000 for reconstruction of their residence to bring it upwardly to code standards. The Harshbargers subsequently sued the inspectors for intentional misrepresentation and suppression of fact, too as the City of Colton for negligent hiring. The trial courtroom dismissed the Harshbargers' complaint against Colton on the basis that the complaint failed to land a valid legal theory of liability confronting the City.

The Harshbargers appealed the trial court's decision. On appeal, the Harshbargers argued that by signing the job card the metropolis inspectors misrepresented that the residence complied with code standards when in fact they knew the construction work was defective. As a result, the Harshbargers argued they suffered damages in expending an additional $295,000 to reconstruct their residence so that it met code standards.

The court of appeal, however, saw things differently. The court agreed that California'due south Health & Safety Lawmaking imposes a mandatory duty on the Urban center of Colton to enforce code provisions and other rules and regulations pertaining to the construction of dwellings. Even so, the court constitute that section 818.six specifically provides immunity to public entities for failure to make any, or adequate, inspection of property for compliance with codes and regulations. In support of this rule, the courtroom stated the strong public policy at work: "If the immunity were non applicative in situations such as that presented by the facts of this case, municipalities would be exposed to unwarranted and unsupportable risk of liability."

As such, the court came to the conclusion that, although a public employee may be liable for fraudulent inspections, the public entity is immune from liability under section 818.6. Therefore, the Harshbargers could not, as a matter of law, maintain a cause of action against Colton based on fraudulent inspections by its employees, or for the negligent hiring and supervision of such inspectors. The Harshbarger stance remains practiced police force, and this principle of sovereign immunity for public agencies has even been extended to cases involving persons who have suffered personal injury on private property that was allegedly negligently inspected.

The Effects of Public Bureau Immunity on Homeowners Associations

The doctrine of sovereign immunity applies with equal force to homeowners associations. In 1986, the Cancun Homeowners Association, Inc. filed a complaint confronting the developer, landscaper, plumbing visitor, soil engineers, and the City of San Juan Capistrano ("the City") for damages suffered by its condominium unit owners from the subsidence of the country underlying the holding. With respect to the Metropolis, the Association contended the building inspector shirked his mandatory duty under a City ordinance to ensure that all soils be compacted to 90 percent. The complaint stated that the Urban center had a mandatory duty to require the developers "to adequately and sufficiently compact the soils" at the property to the requirements prescribed in the ordinance before issuing grading and edifice permits to the programmer and subcontractors to erect structures on the property. The Association sought damages confronting the City and other defendants in backlog of $1 million to right the defect conditions.

The Metropolis moved for summary judgment, alleging the pertinent ordinance was discretionary in nature and, consequently, the Urban center was immune nether sections 815 and 818.4 from whatever perceived negligence occurring in the issuance of the grading and building permits to the developers and subcontractors. The trial court agreed and ruled that the Metropolis was in fact allowed under the California Tort Claims Deed. The Association then appealed the trial court'due south ruling. On appeal, the Court focused on section 818.iv and affirmed the dominion that a public entity is not liable for an injury caused by the refusal to issue a permit where the entity is authorized past law to determine whether or not the permit should exist issued. The Court found that this was such a case. Moreover, the Court stated that "claims for amercement resulting in big office from private improvement and development of property in which the canton and urban center played no function other than their blessing of plans and issuance of permits are not actionable. Thus, the Court concluded, the Metropolis is allowed from tort liability for whatever injury allegedly occurring equally a result of the issuance of permits.

Conclusion

Every bit the in a higher place cases reveal, unknowledgeable property owners, including unit owners in homeowners associations, may exist the ones to suffer if they depend on the public agency to stand backside the building permit it issues and the inspectors information technology hires to oversee ongoing private works of comeback. These cases reinforce the point that a building permit issued past a public agency is neither a guarantee of the quality of the contractor'south piece of work, nor is it a representation of the adequacy of the work that was performed on the property. Edifice codes, the issuance of building permits, and building inspections are but devices used by municipalities to collect the revenues that assist fund the municipality.

When viewed from this perspective, the building permits issued by public agencies are not meant to serve equally insurance policies by which the municipality guarantees that each building is built in compliance with the edifice and zoning codes. The fees a city collects for issuing building permits merely deed to offset expenses incurred past the metropolis in promoting the public interest in general, and in no way function as insurance premiums which make the urban center liable for each item of defective construction on the improved premises. A building permit simply represents to the property possessor that the piece of work that was inspected is complete and that all of the required administrative details accept been performed past the contractor to the building inspector'due south satisfaction.

Armed with this knowledge of what a building allow truly represents, association boards of directors and private property owners can programme accordingly and accept affirmative protective steps when planning to fund a piece of work of improvement on their property. Such simple measures as requiring the hired contractor to maintain greater limits of insurance coverage, or hiring an independent construction manager to diligently oversee that the contractor's ongoing work complies with the relevant building codes, will ensure that the association is protected subsequently the construction process has been completed.

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