Knowledgebase-Building Permit Issued by Mistake
March 19, 2001
You have essentially the following question: Where a building permit is issued upon the basis of a mistake in the zoning map, and the permit was applied for, and issued, in good faith, neither party knowing there was a mistake in the zoning map, can the permit be revoked? In this case the permit was issued for a mobile home that would not otherwise be permitted in the zone in question, and which was in fact established on a lot in the zone. The zoning map mistake was made (and not caught by the city) for around seven years!
The answer is probably no.
Although as you yourself have discovered, there are not Tennessee cases directly on point, it is said in Yokely, Zoning Law and Practice, § 14.5, that:
The judiciary is frequently confronted with provocative questions dealing with the issuance of permits where the permit is issued in accordance with the provisions of a zoning ordinance, and in conformity therewith, and efforts are subsequently made to revoke the permit or declare it inoperative. The courts have generally held, in a long line of decisions, that where a permit has been granted by an officer or board authorized to issue it and the permittee has acted in reliance thereon and incurred substantial expense, the right to continue construction under the permit becomes a vested right which the municipality or county has no right to violate by revocation, recall or otherwise.
The same authority, in the same section, says:
The law is well settled that a municipality cannot revoke a building permit granted to an applicant who, upon the faith of it, enters into contractual relations with respect thereto and expends moneys in the prosecution of work unless it appears that such permit was obtained by fraud or deceit.
A city will be equitably estopped from having a building removed where it issues a permit therefor and stand by while the building is completed and placed in operation for the purposes for which it has been constructed. In announcing this familiar rule, the Supreme Court of Arkansas sustained the right of a defendant to continue in the use of his building which was constructed under a permit, and under the supervision of city officials, for the purpose of engaging in the wholesale business.
There are exceptions to the vested rights rule. Yokely, Zoning Law and Practice, § 14-5. However, I have scanned those exceptions and it does not appear to me that any apply to your case.
There is a zoning estoppel case in Tennessee: Rives v. City of Clarksville, 618 S.W.2d 502 (1981). There the Tennessee Court of Appeals, held that the failure of the city to enforce its zoning ordinance did not estopp the city from eventually enforcing it. However, the facts in that case can be totally distinguished from the facts in your case, and the case does not appear to help you.
But with respect to the application of estoppel to a government, it is said in Sexton v. Sevier County, 948 S.W.2d 747 (Tenn. App. 1997), that:
Generally speaking, the doctrine of estoppel is not favored under our law. [Citations omitted] Although the doctrine can be invoked against a county, [citation omitted], “very exceptional circumstances are required to invoke the doctrine against the State and its governmental subdivisions.” [Citations omitted]
In order to invoke the doctrine of estoppel, a party must show the following:
(1) his or her lack of knowledge and of the means of knowledge of the truth as to the facts in question;
(2) his or her reliance upon the conduct of the party who is estopped; and
(3) action by the invoking party based thereon of such a character as to change that party’s position prejudicially. [Citations omitted]
It is the burden of the party claiming estoppel to prove each of the above elements. [Citations omitted] [At 751]
It appears to me that the mobile home owner in this case could meet his burden on all of the points. There is probably no way, even upon diligent inquiry that the owner could have known about the mistake on the zoning map. In fact, the city did not even realize there was a mistake until it was called to its attention by neighboring property owners. Reliance and action on the part of the property owner also seem foregone conclusions.
A similar–but in fact a less serious–mistake was made by a city with respect to its zoning records in Jones v. City of Aurora, 772 P.2d 645 (Colo.App. 1998), and the city was still held estopped to apply its zoning ordinance. In that case, the property owners in question had a far better opportunity to determine that the city’s records contained the mistake that led the city to issue them a permit to build a day care center in an R-1 zone, which was clearly a prohibited use, and which in fact they were operating when the mistake came to the city’s attention. Because the city had superior knowledge to discover the mistake, the property owners were justified in their reliance in the permit for a day care center issued by the city.
All things considered, my opinion is that the permit in your case cannot be revoked.
Sidney D. Hemsley
Senior Law Consultant