Daily Development for Monday, February 21, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ZONING AND PLANNING; ESTOPPEL: Town government may be estopped from enforcing zoning ordinance that conflicted with construction plan and grading permit issued subsequent to ordinance.

Pingitore v. Town of Cave Creek, 981 P.2d 129 (Ariz. App. 1998).

In July 1994, the town had adopted a new zoning category for the area including the Pingitores' property, prohibiting construction of structures above the twenty-degree horizontal plane of any "ridge line."

At the time the ordinance was passed, it appears that the Pingitores were in the early stages of developing a site for their mountainside home, a home that ultimately was designed in such a way as to violate the "ridge line" requirement. Pingitores had obtained a driveway permit and several subsequent variances and were installing substantial vegetation in accordance with city requirements. They had not obtained a building permit or the many other permits specific to the construction of the house itself, although in connection with the driveway permit the court indicates the city concluded that the proposed project met the "yard, lot and height size" requirements of the then current zoning, which suggests that the Pingitores had submitted some general information about the location and size of their house. The Pingitores, in the next year, expended substantial amounts of money on the driveway.

In September 1995, after a lengthy approval process, the Pingitores received authorization to begin grading of their planned residence. At about this time, the Pingitores submitted complete plans and specifications for their home, but it does not appear that these were reviewed in connection with the grading permit. The city staff, however, did review the plans and ask for a number of changes, but did not identify the conflict with the "ridge line" requirement. The Pingitores began grading and hired a construction contractor.

In November 1995, the town ordered the Pingitores to stop construction on the ground that their plans violated the July 1994 zoning ordinance. The Pingitores obtained a court order permitting them to proceed with construction, and the town appealed.

On appeal: Held: affirmed. Estoppel may be applied against a governmental entity when doing so would not injure the public interest.

The court found that estoppel was proper in this case because the town had officially issued a "zoning clearance" to the Pingitores, because the Pingitores reasonably relied on the town's approval, and because allowing the town to change its position would injure the Pingitores by causing them to default on their construction contracts.

Comment 1: The editor, like most attornies who represents private land developers, believes that estoppel ought to be more available to parties injured by erroneous statements by City zoning officials leading to justifiable reliance. But the fact is that the huge majority of cases in which this argument is made are losers. The courts view the public interest in the integrity of the zoning process as paramount. The only exception is the "vested rights" doctrine, which typically is triggered by the issuance of a buiding permit prior to a change in zoning, and clearly would not apply in this case, where the change in zoning was more than a year before the critical city representations.

What makes this project different from the thousands of other projects in which estoppel has been denied after significant expenditures? The court does not indicate that there was *any* erroneous statement by the city that the home did meet the standards of the 1994 ordinance - only a somewhat wishy-washy negative inference to be drawn from the fact that the staff did not immediately identify the ridge line problem when handed the plans.

The court seems most influenced by the huge amount of money that the Pingitores had already expended in developing their driveway and otherwise conforming to the setback requirements (by acquiring an additional parcel for $225,000), in some cases agreeing to assist the city in carrying out other land use goals in the area through their project. It appears to the editor that this was not a case of the Pingitores making a special case of reliance, but rather a case in which the court viewed it as unfair for the city to enjoy the benefits of the Pingitores' significant developments to date and then to deny them the right to build their house.

Comment 2: In any event, Arizona lawyers ought to hold on to this one. They're not likely to see very an estoppel case coming down in favor of the landowner any time soon. (The Arizona Supreme Court has denied review.)

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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