RADACH V. GUNDERSON 695 P.2d 128 (1985) CASE BRIEF

RADACH V. GUNDERSON

695 P.2d 128 (1985)

NATURE OF THE CASE: Radich (P) sought review of a decision which denied them injunctive relief but finding a zoning code violation by Gunderson (D), a home owner, and negligence on the part of Ocean Shores (D1), but that P had suffered no substantial injury and that D1 owed no duty to P.

FACTS: P owned their Ocean Shores vacation home since 1971. D owned the second lot to the south, separated by a 60-foot-wide vacant lot. The City's zoning code specifies that structures on such lots be no nearer than 50 feet to the property line that parallels and is closest to the waterfront. The City building inspector is required to enforce the setback provisions. In 1977, D hired Bickmore to build their house and obtain all necessary permits. Bickmore thought the setback was 40 feet and submitted a plot plan showing the proposed house 40 feet from the ocean-front property line. A secretary for the D1 Building Department issued the permit without noticing that it violated the zoning code. The building inspector for D1 checked the foundation forms on the ground and approved them because they were set as shown on the plot plan also failing to notice the violation. P complained to D1 immediately from the beginning of the construction, but D1 did nothing and the house was completed. D1 was negligent in its enforcement of the code and in informing D of the violation from the very outset. D1 merely failed totally in its duty to enforce the zoning codes at a time when damages to D would have been minimal. P sued D and D1 for injunctive relief. D cross-claimed for indemnity against D1 and Bickmore. The court found a code violation, and that D was 'completely innocent.' The court also determined that P suffered no substantial injury. The court found the City negligent, but concluded that it had no duty to the P. The court balanced the equities between the parties and concluded that no injunction or other relief was warranted. P appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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