Agenda - Planning Commission - 04/05/2018

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February 25, 2018 I Volume 12 I Issue 4 Zoning Bulletin See also: A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979). See also: Hoffinan v. Bob Law, Inc., 2016 SD 94, 888 N.W.2d 569 (S.D. 2016). Case Note: The McDowells had also alleged that construction of the Sapienzas' hone violated the City's chimney ordinance. The proximity of the Sapienzas' new home had caused the McDowells' home to fall out of compliance with the chimney ordinance's chimney height requirements (based on distance and height of adjacent structures), leaving the McDowells unable to use their fireplace. The circuit court agreed with the McDowells and ordered the Sapienzas to modify their home so that McDowells could use their fireplace. On appeal, however, the Supreme Court of South Dakota concluded that the chimney ordinance was a set back requirement, which regulated the height of chimneys on a structure and not the siting of structures on other properties. Although the Sapienzas' new home caused the McDowells' home to fall out of compliance with the chimney ordinance, the Sapienzas' home was not sited in violation of the chimney ordinance, found the court. As such, the court reversed the circuit court's contrary legal conclusion. Case Note: The Sapienzas had asserted defenses of laches and assumption of risk. However, both the circuit court and the appellate court rejected those defenses. Case Note: The McDowells had also sued the City for negligence. They had alleged that the City was negligent in issuing the building permit and permitting the Sapienzas to build a home that violated building regulations. The circuit court had agreed, concluding that the City owed a duty to the McDowells to properlyenforce the historic -district regulation. But, the Supreme Court of North Dakota disagreed. It concluded that the duty to ensure compliance with permits —which allegedly was breached here —rested with the "individuals responsible for construction," and not the local government. Moreover, the court found that the McDowells failed to establish the requirements for establishing a special duty owed by the City to the McDowells (i.e., that the City had actual knowledge that the Sapienzas' home would violate ARSD 24:52:07:04; that the McDowells relied on •representations of the City to protect them; or that ARSD 24:52:07:04 set forth mandatory acts that the City undertook to protect the individual property owners in the historic district.) Thus, the court concluded that the circuit court erred in holding that the City owed a duty to the McDowells to ensure compli- ance with applicable building codes and regulations. © 2018 Thomson Reuters