Daily Development for Monday, August 30, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ZONING AND LAND USE; AGENCY LIABILITY; IMMUNITY: Members of Board of Adjustment enjoy immunity from liability for negligent adjuducative decisions, even if motivated by subjective personal animus, so long as the decision is based upon objective factors and could have been reached in good faith.

Ballantyne v. Champion Builders, Inc., 2004 Westlaw 1533950 (Tex. 7/9/04)

The city manager had issued a building permit for developer to construct a six unit apartment complex. A group of neighbors opposed to the project appealed the decision to the Board of Zoning Appeals. At issue was a technical interpretation of whether the project satisfied frontage requirements. A private lawyer retained as the City Attorney had opined that the project did satisfy the requirements, but a lawyer retained by the neighborhood group opined otherwise. Firm in his resolve, the City Attorney told the BOA that they were presented with the views of two attorneys and that they therefore could “do whatever [they] want[ed] to.”

The transcript of the hearing indicates that the members of the BOA, perhaps moved by the presence of a boisterous neighborhood group, opined that a six unit apartment complex would attract an undesirable group of tenants who would be loud and disruptive and were likely to commit crimes. In executive session, the transcript of which was available to the appeals court, some BOA members stated that the presence of the apartment would lower property values by brining “scum” into the neighborhood, who would use “loud boom boxes” on the street. One board member referred to another similar apartment in the area as a “whorehouse.”

The developer appealed the denial of the building permit based upon the frontage issue, and the courts overturned the decision of the BOA. Although the developer got its permit, the time delay led to financing complications that prevented the building of the apartment. The developer sued the members of the BOA for negligence and gross negligence in its decision and failing to follow the advice of the City Attorney. It also sued for tortious interference and made various taking claims.

The BOA members raised the defense of official immunity. The BOA members raised the defense of official immunity. The relevant issue boiled down to a question of common law immunity. The court did here did not discuss statutory immunity questions. The Texas courts had already determined that public officials, as a matter of common law, generally are immune from suit arising from performance of their (1) discretionary duties (2) in good faith and (3) within the scope of their authority. The trial court first submitted the question of immunity to the jury, which found for the developer and awarded $600,000 in damages against the individual BOA members. The trial judge entered a jnov in favor of the BOA members, finding that immunity existed as a matter of law. The Court of Appeals reversed, holding that there was sufficient evidence to support the jury verdict that the BOA members had not acted in good faith.

On appeal, the Texas Supreme Court reversed the Court of Appeals, concluding, contrary to the Court of Appeals, that the relevant test is not whether subjective good faith exists, but whether, as an objective matter, a public official could have reached the conclusion it reached in good faith. Here, it concluded that the City Attorney had basically given the Board members carte blanche to decide the frontage issue either way. Thus, the decision to that there was inadequate frontage to sustain the building permit could have been made in good faith. The Supreme Court held that courts should not entertain any evidence showing subjective bad faith once it is shown that the decision could have been made upon defensible grounds.
“Common law official immunity is based on the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise form having their judgment continually questioned by extended litigation . . .’ The public would suffer if government officials, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decision. . .’ Denying the affirmative defense of official immunity to public officials in such circumstances ‘would contribute not to principled and fearless decision-making but to intimidation.’”

On the issue of whether the decision fell within the scope of the Board’s duties, the Texas Supreme Court had little difficulty extending this immunity doctrine to members of a Board of Adjustment ruling on an appeal from the granting of a building permit. The court characterized the official’s responsibilities in this case as “quasi judicial” and clearly vested in them the responsibility to rule on the appeal of the building permit. It dismissed the developer’s claim that a decision in bad faith can never be within an official’s duties, as such an interpretation would frustrate the policy of the immunity defense.

Comment: Cf: City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 2003 WL 1477301 (U.S. 3/23/2003) (The DIRT DD for 3/26/03). (City's submission of a zoning matter to referendum as requested by a citizen petition consistent with a provision of the city charter (which provision is later nullified by a State Supreme Court ruling) does not constitute a violation either of Constitutional Equal Protection or Substantive Due Process, even if the motivation for the petition and the referendum vote is racial discrimination on the part of the citizens participating in the process. ) Compare: Woodwind Estates, LTD v Gretkowski , 2000 U.S. App. LEXIS 2889 (3rd Cir. 2/28/00) (The DIRT DD for 3/20/00) (Third Circuit will permit 1983 damages for County's refusal to grant subdivision approval where record indicates that the application satisfied the County' standards; County cannot hide behind "discretionary decision" argument.)

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