City did not adhere to or enforce ordinance

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Latest post 05-16-2012 3:43 PM by HillslideBilly. 13 replies.
  • 05-15-2012 10:55 AM

    City did not adhere to or enforce ordinance

     

    In 2007 the city signed off and approved a permit for a neighbor at the top of a hill behind my home to build a retaining wall. During the building of that wall the city did not adhere to or enforce an ordinance that states during construction drainage, grading, revegetation and limited vegetation removal must be done. As a result in 2010 after heavy rains and long exposure to the stripped land a hill slide occurred this damaged my neighbor's property. In 2011 the damage spread to my property damaging a stone wall and creating a silt runoff that spread through my backyard. I have filed a complaint with the Kentucky Department of Water as the silt runs to the storm drain and out to the Ohio River. That complaint is still being looked into. I have also reviewed Kentucky Statutes which allows property damage claims to occur within 2 years and also claims to be brought about against local governments.

    It is my thoughts that the city has a lot of blame for not enforcing their own ordinance but the property owner may also be at fault for allowing his property to slip as well. The city has attempted to wash their hands of this matter by stating it is a private property matter. However, when questioning the zoning administrator he stated any violations of ordinances in the building of that wall would have been reported by a city employee which was the building inspector.

  • 05-15-2012 11:18 AM In reply to

    • Drew
      Consumer
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    Re: City did not adhere to or enforce ordinance

    The City probably has the resources to duck and weave or simply squat and do nothing.

    I would think that you have a far better target by going after the actual uphill homeowner .  If the law or codes hold him accountable for downhill water issues due to alteration of natural water flow or prior vegation replaced --or issues of impervious surfaces you may well be able to hook him to addres the entire runoff problems --but you need a seasoned RE lawyer to address possible options in your jurisdiction/state.

    And by attacking the uphill guy with an issue against his land you might be able to totally gum up his resale value



  • 05-15-2012 12:06 PM In reply to

    Re: City did not adhere to or enforce ordinance

    Drew:
    I would think that you have a far better target by going after the actual uphill homeowner

     

    The construction company may be liable, also.

  • 05-15-2012 1:10 PM In reply to

    Re: City did not adhere to or enforce ordinance

    You're wasting your time blaming the city and quoting statutes.

    Keep doing that and you'll never see a nickel.

    It's the neighbor who built the wall who's responsible. He's the one to sue (and his contractor for getting it wrong).

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 05-15-2012 3:43 PM In reply to

    Re: City did not adhere to or enforce ordinance

    The homeowner and contractor would be ideal but I fear the homeowner is most likely poor do to health reasons and the contractor will just say the city signed off on the wall. I would think the geotech company should have known better as well.

     

  • 05-15-2012 3:49 PM In reply to

    Re: City did not adhere to or enforce ordinance

    HillslideBilly:

    The homeowner and contractor would be ideal but I fear the homeowner is most likely poor do to health reasons and the contractor will just say the city signed off on the wall. I would think the geotech company should have known better as well.

     

    Then you are making a common mistake. You are chasing deep pockets who are not the primary cause of your damages because the responsible party has no money.

    Just like blaming the bank when a criminal forges your check or blaming the internet service provider when the Nigerian swindles you.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 05-15-2012 4:24 PM In reply to

    Re: City did not adhere to or enforce ordinance

    I think a city employee not doing his job while on the building site is a bit different then someone forging a check miles away. That would be like a bank employee not stopping a forger right in front of him, right? The building inspector who is authorized to shut down projects if ordinances are not adhered to did nothing in regards to leaving the exposed land behind which created the land slide. It's as if he looked at the wall top to bottom and said its okay but paid no mind to the 40 yd by 80 yd swath of exposed land left behind. Deep pockets? I guess when a city employee provides a negligent disservice.

  • 05-15-2012 4:49 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
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    Re: City did not adhere to or enforce ordinance

    The point is that if you can nail the homeowner to get it fixed you may get a lien on his property and thus get it done one way or another.  The homeowner is the best target in my mind--perhaps the contractor IF they violated law /codes in thier work but frankly I'd lean on homeowner --let him lean on contractor .(Or name them both.)   



  • 05-15-2012 6:31 PM In reply to

    Re: City did not adhere to or enforce ordinance

    HillslideBilly:
    I think a city employee not doing his job while on the building site is a bit different then someone forging a check miles away.

    The problem is that the city is not liable to you for failure to enforce the building codes. The building codes give the city the right to impose whatever sanction the code provides (usually fines, stop work orders, and refusal to issue a certificate of occupancy) but the city is under no obligation to anyone to enforce those codes.

    It is the property owner and the construction firm that are the potentially liable parties. Going after the city won't get you anywhere.

  • 05-16-2012 8:53 AM In reply to

    Re: City did not adhere to or enforce ordinance

     

    I don't think cities have a broad discretion not to act on an ordinance especially if the ordinance states that before and after construction any issue with the exposed land must be taken care of. If I file a complaint they should have to follow up on it even to this day. The only discretion they may have is to pursue the violation enforcement as a civil or criminal.

  • 05-16-2012 10:04 AM In reply to

    Re: City did not adhere to or enforce ordinance

    HillslideBilly:

    I don't think cities have a broad discretion not to act on an ordinance especially if the ordinance states that before and after construction any issue with the exposed land must be taken care of. If I file a complaint they should have to follow up on it even to this day. The only discretion they may have is to pursue the violation enforcement as a civil or criminal.

    You apppear to be making a common mistake of concluding that because you think that's the way the law ought to be that it is, in fact, how the law actually works. But the reality is that the general rule is that government has no individual duty to others to enforce the law, and that the government has immunity from suit for such claims. Kentucky is no different in this regard. Kentucky Revised Statutes (KRS) section 65.2003 provides immunity to local governnent for certain types of claims against them:

    ____________________________________

    65.2003    Claims disallowed.
    Notwithstanding KRS 65.2001, a local government shall not be liable for injuries or losses resulting from:
         (1)    Any claim by an employee of the local government which is covered by the Kentucky workers' compensation law;
         (2)    Any claim in connection with the assessment or collection of taxes;
         (3)    Any claim arising from the exercise of judicial, quasi-judicial, legislative or quasi- legislative authority or others, exercise of judgment or discretion vested in the local government, which shall include by example, but not be limited to:
              (a)    The adoption or failure to adopt any ordinance, resolution, order, regulation, or rule;
              (b)    The failure to enforce any law;
              (c)    The issuance, denial, suspension, revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization;
              (d)    The exercise of discretion when in the face of competing demands, the local government determines whether and how to utilize or apply existing resources; or
              (e)    Failure to make an inspection.
    Nothing contained in this subsection shall be construed to exempt a local government from liability for negligence arising out of acts or omissions of its employees in carrying out their ministerial duties.

    _______________________________________________

    (bolding added.) Note that paragraph 3(b) immunizes local governments from claims relating the failure to enforce any law.

    The Kentucky Supreme Court applied the same rule to a case that arose just prior to the adoption of the above statute. In 1991, the Supreme Court of Kentucky decided a case on the question of whether a city that had failed to enforce its fire safety code could be sued for damages that occurred later when the building was torched and the occupants of the building were injured, with one of them dying from the fire. The Supreme Court held that the city was not liable for that because enforcing the fire code is a quasi-judicial function and the government is not liable in tort for its failure to perform such functions. Specifically, the court stated:

    "These steps classify as regulatory and quasi-judicial in nature. Legal liability flowing from the existence of these fire and safety violations rests on the owner or other person in possession and control of the building. The duties assigned by the ordinances to the Director and city inspectors are to find or confirm violations, and to decide what needs to be done, whether repairs or placarding the building. The judicial nature of these decisions is underscored by the fact that there are avenues of appeal from the decision of the Director to a reviewing authority and to the courts. There is no more legal liability in this situation for the City than there would be where a judge fails to make a decision or makes a wrong one. The trial court's decision that the City must respond in tort in this situation was in error, not because the City enjoys immunity from tort liability, but because the incompetent performance of decision-making activity of this nature by a governmental agency is not the subject of tort liability."

    Bolden v. City of Covington, 803 S.W. 2d 577 (Ky 1991).

    Like it or not, it seems pretty clear that in Kentucky you cannot sue a local government for failure to enforce a building code ordinance. I don't practice in KY so feel free to run that by a KY attorney. But based on the above, I'm pretty sure the attorney will tell you the same thing.

  • 05-16-2012 1:10 PM In reply to

    Re: City did not adhere to or enforce ordinance

    "But the reality is that the general rule is that government has no individual duty to others to enforce the law, and that the government has immunity from suit for such claims."

    I understand the above and thank you. I actually had that statute but didn't have the clarification. I understand your above statement and I believe it would correspond with KRS 83.065 where a city "may" enforce it's ordinances. What would be the case if the city ordinance states the zoning administrator "shall" enforce the ordinances (see below)?

    A Zoning Administrator (official or officials appointed by the legislative body for carrying out the provisions and enforcement of this ordinance) shall administer and enforce this ordinance. The officer may be provided with assistance of other persons as the legislative body directs. The Zoning Administrator shall posses all the powers granted by KRS 100.271. 

    The ordinance I would like them to enforce would be: Provisions shall be made to accommodate the increased runoff caused by changed soil and surface conditions during and after development.

    If I could get them to enforce the ordinance after the fact then I feel it would help me in the long run. Any thoughts other then good luck?

     

     

     

     

     

  • 05-16-2012 1:21 PM In reply to

    Re: City did not adhere to or enforce ordinance

    You could fool around with this forever, trying to get the state to pay and perhaps pass the statute of limitations.  Then no one would have to pay the damages.  You might consult with a local attoney, but get on it.  THEN you might believe what you read here.

    Also, it's likely the construction company has insurance...you might get this over with a simple phone call.  Or you could drag it out and frustrate yourself and purpose.

  • 05-16-2012 3:43 PM In reply to

    Re: City did not adhere to or enforce ordinance

    Got it. Governmental immunity is like finding out there is no Santa Claus but with a kick in the leg! I am in contact with a lawyer and now I know (because of you folks) who I am after. Thanks again!

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