From: Randolph, Patrick
Sent: Monday, December 05, 2005 5:31 PM
To: Randolph, Patrick
Subject: DD 11/8/05 Zoning estoppel permits calculated "end run?"
Daily Development for Tuesday, November 8, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri
ZONING AND LAND USE; ESTOPPEL: City will be estopped from reneging on
building permit after applicant has invested substantially in project,
even when permit issued erroneously and in violation of settlement
agreement that applicant previously had entered into with City.
Congregation Etz Chaim v. City of Los Angeles, 371 F. 3d 1122 (9th Cir.
The Congregation owned property in a residential neighborhood that had
used as a location for its religious practices, in violation of local
zoning ordinances, for 18 months. Other residents of the neighborhood
objected. There was litigation in state and federal court, including a
claim under the Religious Land Use and Institutionalized Persons Act.
On the eve of the hearing on this Act, the parties reached a settlement
agreement by which the Congregation agreed to "the single family
character of the property shall be restored and maintained, including
the residential character and architecture" the action was dismissed,
with the Federal District Court retaining jurisdiction over the carrying
out of the dispute. The Agreement obviously contemplated that new
permit applications might be made by the Congregation in "restoring" the
property, and required submission of plans for approval within 90 days.
It provided expressly that the "any notice, tender or delivery or oth!
munication pursuant to the Settlement Agreement" would be submitted by
the Congregation was to a specified individual in the City's large
planning department who lots of experience on this dispute and the
neighborhood. This person was vested with responsibility by the City to
monitor compliance with the Agreement.
Instead, the Congregation ignored the specified individual and submitted
building plans to other persons in the City building department and
obtained a building permit. The plans called for expansion of the
existing home from 3145 square feet to 8150 square feet, an expansion
guaranteed to infuriate the neighbors and, in the view of the City,
wholly inconsistent with the Agreement. It did submit a copy of the
Agreement along with the plans, and negotiated for three months both
with the building department and a City Attorney lawyer who also had a
copy of the Agreement, paying over $20,000 in permit fees.
Upon receiving the permit, the Congregation immediately commenced with
its "remodelling." The first step consisted of utterly demolishing the
existing house, leaving only two exterior walls standing. The neighbors
immediately ran to Mr. Green, who apparently learned for the first time
of the "end run." He concluded that the Agreement did not contemplate a
massive expansion of the size of the house as a "restoration."
When the City tried to stop work and suspend the permit, the
Congregation returned to Court and got an injunction against the City
action based upon estoppel. The Ninth Circuit Court of Appeals, upheld
the estoppel claim by a split decision, including a clear and sensible
The court held that California had a well established doctrine of
estoppel, and that this was a relatively clear case, as there had been
extensive negotiation with the City, which had then issued a permit,
resulting in reliance by the Congregation that now appeared to be
irreparable. It noted that whether the Congregations activities in fact
were inconsistent with the Agreement was a "nice question," but not one
that it needed to consider, as the City was estopped from raising it.
Of course, the City responded that the Congregation had violated the
Agreement by failing to notify Mr. Green, and that it therefore had
"unclean hands" and should not benefit from the estoppel. The Court
responded that the submission of plans in connection with a permit
application was not clearly a "notice, tender, delivery or other
communication . . . ." as contemplated by the agreement to be addressed
to Mr. Green.
Comment 1: Give us a break!!! As the dissent points out, this isn't
even a close case. The Agreement specifically contemplated that there
would be construction and that the plans would be submitted to the City,
so how could the subsequent permit application not be a "communication"
under the Agreement? The parties had selected Mr. Green, out of over
47,000 employees of the City, to receive this communication. To anyone
looking on from the outside, there does seem to be some bad faith going
Comment 2: On the other hand, there had to be some very bad lawyering
going on as well, since the lawyer for the City Attorney's office who
had a copy of this Agreement also did not communicate with Mr. Green.
Perhaps the lawyer believed that Green had received notice from the
Congregation, but verification of this fact was only a phone call away.
Is it possible that the Congregation selected people in the Planning
Office who might have been favorably disposed towards its case? The
Editor has no inside information on this point, but is struggling to
understand how a case of this evident notoriety within the Planning
Department sat there for three months without Mr. Green's notice,
especilly when the Agreement contemplated the submission of new plans
within 90 days to restore the property.
Comment 3: Don't try this at home, kids. Zoning estoppel may be common
in California, as asserted by the court, but in fact there is a long
tradition in most jurisdictions of protecting the body public from
carelessness by its own employees, and other jurisdictions might have
had no problem in letting the City dodge this bullet.
Items reported here and in the ABA publications are for general
information purposes only and should not be relied upon in the course of
representation or in the forming of decisions in legal matters. The
same is true of all commentary provided by contributors to the DIRT
list. Accuracy of data and opinions expressed are the sole
responsibility of the DIRT editor and are in no sense the publication of
Parties posting messages to DIRT are posting to a source that is readily
accessible by members of the general public, and should take that fact
into account in evaluating confidentiality issues.
DIRT is an internet discussion group for serious real estate
professionals. Message volume varies, but commonly runs 5 15 messages
per work day.
Daily Developments are posted every work day. To subscribe, send the
subscribe Dirt [your name]
To cancel your subscription, send the message signoff DIRT to the
for information on other commands, send the message Help to the listserv
DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically
upon residential real estate matters. Because real estate brokers
generally find this service more valuable, it is named "BrokerDIRT."
But residential specialist attorneys, title insurers, lenders and others
interested in the residential market will want to subscribe to this
alternative list. If you subscribe to BrokerDIRT, it is not necessary
also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in
addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
To cancel your subscription to BrokerDIRT, send the message signoff
BrokerDIRT to the address:
DIRT is a service of the American Bar Association Section on Real
Property, Probate & Trust Law and the University of Missouri, Kansas
City, School of Law. Daily Developments are copyrighted by Patrick A.
Randolph, Jr., Professor of Law, UMKC School of Law, but Professor
Randolph grants permission for copying or distribution of Daily
Developments for educational purposes, including professional continuing
education, provided that no charge is imposed for such distribution and
that appropriate credit is given to Professor Randolph, DIRT, and its
DIRT has a WebPage at:
Your e-mail address will only be used within the ABA and its entities.
We do not sell or rent e-mail addresses to anyone outside the ABA.
To change your e-mail address or remove your name from any future
general distribution e-mails you can call us at 1-800-285-2221, or write
to: American Bar Association, Service Center, 321 N Clark Street, Floor
16, Chicago, IL 60610
If you are an ABA member, log in to the ABA Web site at
https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member
profile. Otherwise, complete the form located at
To review our privacy statement, go to
If you have any problems, please contact the list owner at