The Public Duty Doctrine and Municipal Liability for Negligent Administration of Zoning Codes

• Publication year: 1997

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 3SPRING 1997

The Public Duty Doctrine and Municipal Liability for Negligent Administration of Zoning Codes

Shelly K. Speir (fn*)

[T]he drastic social and economic changes that have taken place since the public duty doctrine's birth in the nineteenth century warrant that it follow the doctrine of sovereign immunity into the 'dustheap of history.'(fn1)

Imagine that you own a piece of property on which you would like to build a small "Mom and Pop" grocery store. You are aware that there are probably laws that regulate your lot, so you go to the city's planning department to find out how your lot is zoned. The department secretary assures you that your lot is zoned "commercial." Elated, you apply for a building permit, which requires you to certify that your store will comply with all of the applicable zoning and building codes. You sign the application and a few weeks later receive a building permit.

You proceed with construction. Periodically, your work is inspected by a city official who tells you that everything appears to be in compliance, and so you continue your work. On the day you finish construction, you are served with notice that your neighbors are suing you for violating the zoning code-it turns out that your lot is actually zoned "single-family residential." You also receive a letter from the city informing you that your building permit has been revoked. That same day, another city inspector looks at the store and finds numerous violations of the building code. Immensely frustrated, you decide to sue the city because you feel that this whole mess is the city's fault.

Will your allegation of negligence as to the secretary's initial statement find redress in the courts? Will the inspector's continued assurances of compliance give rise to a cause of action? Is the city's issuance and subsequent revocation of the building permit actionable? The answer to these questions may depend on whether or not Washington courts continue to use what is termed the "public duty doctrine" when analyzing zoning code cases.

This Comment first provides a brief background of the development of the public duty doctrine. Part II discusses the two major types of zoning cases: those involving negligent misstatements and those involving negligent issuance of permits or inspections. The use of the public duty doctrine in both types of cases is then analyzed under relevant Washington case law. Part III argues for the abolition of the public duty doctrine and Part IV concludes.

I. The Introduction and Development of the Public Duty Doctrine In Washington

Prior to 1961, Washington municipalities enjoyed total immunity from suit as political subdivisions of the state. Following a national trend that began in New York, the Washington Legislature abolished state sovereign immunity in 1961.(fn2) In Kelso v. Tacoma,(fn3) the Washington Supreme Court extended application of that statute to municipalities, thus establishing what this Comment refers to as the liability rule: "The doctrine of governmental immunity [is] not preserved to the municipal branches of government."(fn4) The legislature eventually affirmed the court's interpretation, specifically abolishing governmental immunity for municipalities.(fn5)

However, the Washington Supreme Court recognized that the statutes abrogating immunity should "not render the state liable for every harm that may flow from governmental action. . . . [T]here must be room for basic governmental policy decision and the implementation thereof, unhampered by the threat or fear of sovereign tort liability. . . ."(fn6) To protect governmental entities, the court carved out a "discretionary act" exception to the liability rule in the seminal cases of Evangelical United Brethren Church of Adna v. State(fn7) and King v. Seattle(fn8) Under the discretionary act exception, municipalities were still immune from suit if their acts were discretionary (done at the planning level) rather than ministerial (done at the operational level).(fn9) If a municipality's acts were ministerial, then it was not immune from suit, and a court could proceed with a traditional analysis of tort liability.(fn10)

Under Evangelical and King, then, a court tests for municipal liability in two steps. First, the court determines whether the government's act was discretionary or ministerial. If discretionary, the government is immune. If the act was ministerial, then the court moves to the second step and determines liability using the traditional tort law concepts of duty, foreseeability, breach, and causation. The following is a diagram of the Evangelical/King test:

	Evangelical/King
Step 1	Was the municipality's act discretionary or ministerial?
Step 2 (If the act was ministerial)	Tort law analysis-duty, foreseeability, breach, causation.

Despite the clear precedent set by these early cases, this test was altered dramatically in Campbell v. Bellevue.(fn11) There, the plaintiff successfully sued the City of Bellevue for negligent administration of its electrical codes.(fn12) In its discussion of the city's culpability, the Campbell court quickly passed over both the liability rule and the discretionary act exception, and omitted the tort law analysis.(fn13) The court simply turned to New York case law, which relied on the public duty doctrine, to resolve the liability issue.(fn14)

When New York first abolished sovereign immunity, its courts adopted the public duty doctrine as a method of protecting governmental entities from otherwise unlimited liability.(fn15) While the purpose of limiting liability mirrored that of Washington's discretionary act exception, the public duty doctrine followed a substantially different line of reasoning. The basic premise of the doctrine is that a duty to the public is a duty to no one,(fn16) because governments should not be punished for performing the duties that the legislature has imposed on them.(fn17) Thus, the public duty doctrine focuses on the relationship between the governmental entity and the individual plaintiff as a member of the public, rather than on the characterization of the allegedly tortious conduct as either discretionary or ministerial.(fn18)

The Campbell court did not reveal why it chose to adopt the public duty doctrine instead of following the Evangelical/King precedent.(fn19) Campbell has never been overruled on that point, and, although heavily criticized by judges and commentators, the public duty doctrine has never been formally disavowed by Washington courts. Subsequent case law has been grossly inconsistent, with the Washington Supreme Court itself vacillating between the Evangelical/ King test and the public duty doctrine nearly on a case-by-case basis.(fn20) This inconsistent application is vividly illustrated by the way courts analyze cases involving negligent administration of zoning codes.

II. The Public Duty Doctrine in Zoning Cases

There are two general types of zoning cases to which the public duty doctrine has been applied: those dealing with negligent misstatements of zoning codes and those dealing with negligent issuance of permits or negligent inspections. The public duty doctrine has been used to analyze municipal liability in both types, but because the supposed justifications for applying the doctrine in each type is different, they will be discussed separately.

A. Negligent Misstatements of Zoning Codes

Washington courts have dealt with negligent misstatements of zoning codes three times, each time handling the liability issue differently. Both Rogers v. Toppenish(fn21) and Sundberg v. Evans(fn22) combined the Evangelical/King test and the public duty doctrine, resulting in hybrid analyses, while Mull v. Bellevue(fn23) relied solely on the public duty doctrine. Following a summary of the facts of these cases, the policy considerations justifying the use of the public duty doctrine in negligent misstatement cases will be evaluated, and then each case will be reanalyzed using the Evangelical/King test.

1. Case Analyses

a. Rogers v. Toppenish

In Rogers, a buyer asked the city building inspector whether an available parcel was zoned for apartment houses.(fn24) The building inspector said that it was, and the buyer purchased the parcel relying on that representation; a building permit was duly issued.(fn25) After complaints from neighbors, the city manager informed the buyer that the parcel was in fact zoned for single-family residences or duplexes and therefore rescinded the building permit.(fn26) After trying unsuccessfully to have the parcel rezoned, the buyer brought suit against the city and the building inspector based on negligent representation.(fn27)

In its analysis, the court completed the first step of the Evangelical/King test by noting that, although sovereign immunity had been abolished, there was an exception for discretionary acts.(fn28) The court found that the city exercised its discretion when it created a planning commission and regulated land and building structures through ordinances. Therefore, under the exception, the city was immune from suit.(fn29)

The court...