Now that City Attorney Mike Aguirre, the U-T and everyone else have beaten Mayor Jerry Sanders into admitting that his office wrongfully allowed this controversial tower to rise in Kearny Mesa, I had a question. If the city’s leaders each admit that the city did this, is the city also effectively accepting liability for it? I mean, does Sunroad have a valid legal claim that it was the city’s fault for approving the building in the first place?

I asked an expert in local municipal law who said he’d give me a little analysis if I kept his name off of it. I agreed. I asked him whether all this self flagellation the mayor was performing wasn’t actually proving Sunroad’s legal case.

Here’s the lawyer’s take:

Much depends on the specific facts, and I don’t know all of them but here are some legal principles. Generally the City cannot be liable for the erroneous issuance of a permit.  Permitting (issuing building permits and the like) is a public health, safety and welfare function, and the courts have held the that public entities should not generally be held liable for those activities, even if undertaken erroneously.

There is an exception, called estoppel. There are very specific conditions to the application of estoppel which could make the City liable. I will put them into the Sunroad context.  If the City issued the building permits to Sunroad in error; the City knew of the error; Sunroad did NOT know of the error; and Sunroad relied on the City’s actions to its detriment, then the City could be liable.

It is not clear if all these facts are applicable, and the most important to me is whether Sunroad was innocent; I am not sure it was.

Also, it is not clear that the City knew the permits were issued in error (generally, the City is culpable as an entity; if one official knew that is enough).

There could be another exception, based on inverse condemnation, but that would apply if the City prevented the construction of otherwise conforming buildings. I think that is why Aguirre is not forcing a shutdown of the rest of the development which is probably all legal (with the exception of the other 2 towers about which some questions remain).

As I said, much remains to be proven, but if I were a betting man I would bet that Sunroad would not recover on the first tower because I think at the very least they knew the building permit was issued in violation of the FAA regulations.

I found that interesting. If you’re an attorney, perhaps you can drop me a line as well.

SCOTT LEWIS

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