Agenda - Planning Commission - 10/04/2007

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September 1, 20071 Volume 1 I No. 17 Lemel went forward with the transaction, purchasing the lot with the belief that it could be divided into two separate, buildable lots. Subsequent to the purchase, the board determined that the division was not pen:tJ.itted. Lemel sued the village in court. The village asked the court to find in its favor, arguing that it had discretionary immunity and that Lemel had contributed to his inju- ry. The village did concede, however, that the building inspector had provided Lemel with erroneous advice. Nonetheless, the lower court found that the building inspector was immune from liability, and it dismissed Lemel's claim. Lemel appealed. Decision: Affirmed. When a court found in one party's favor without a trial-essen- tially a dismissal-and there was an appeal, the appeal court had to review the record of the lower court for issues of material fact. If there were any outstanding issues, an appeals court would find that dismiss- al was not appropriate. Here, Lemel first argued that there was a ma- terial issue of fact as to exactly what transpired between the building inspector and himself. Lemel claimed that the inspector testified that he had advised Lemel that the decision on division was up to the village board, whereas Leniel contended that the inspector never told him that. Lemel argued that, based on this disputed fact, the lower court's dis- missal was improper, but the appeals cour:t rejected this argument. The village had conceded that the inspector provided Lemel with in- correct advice. Accordingly, this dispute is immaterial to resolution of the issue. Lemel next argued that the lower court had erred by finding the inspector immune from liability. However, state law provided that: "No suit may be brought against any...governmental subdivision or any agency thereof for the intentional torts of its officers, offi- cials, agents or employees nor may any suit be brought against such corporation, subdivision or agency...or against its officers, officials, agents or employees for acts do.ne in the exercise of legislative, qua- si-legislative, judicial or quasi-judicial :functions." The "legislative, quasi-legislative, judicial or quasi-judicial func- tions" were known as discretionary acts. To determine if the inspec- tor was indeed immune, the court applied the following standard: "If the action require [ d] the employee to use judgment or discretion, then the action [was] considered discretionary. When the action [did] not involve any judgment or discretion, it [was] considered ministe- rial." Mh-listerial acts were not protected by immunity. 9 43