Pruitt v. City of Seward

James Pruitt wanted to build a commercial building that the City of Seward believed violated its zoning code. Through its employees, the city told Pruitt no less than seven times in writing¹ and additional times orally² that a proposed canopy on the building *Page 1142 extended illegally into the area reserved for setbacks under the city zoning laws. Pruitt nonetheless went ahead and built the building with the canopy.³

After the building was built, the city refused to issue the certificate of occupancy needed under the law to occupy the building.⁴ Pruitt nonetheless went ahead and occupied the building.⁵

Pruitt then decided that the building needed a loading dock. He was told by the city that the necessary building permit would not be issued until Pruitt corrected the canopy problem and obtained a certificate of occupancy.⁶ Pruitt nonetheless went ahead and constructed the loading dock without correcting the canopy,⁷ without obtaining a certificate of occupancy,⁸ and without even applying for (much less obtaining) the required permits for construction of the loading dock.⁹

Over three years after Pruitt initially applied for a building permit, and after two additional warning letters,¹⁰ the city brought an enforcement action against Pruitt.¹¹ Superior Court Judge Morgan Christen ruled in the city's favor, holding that "[t]o the extent Mr. Pruitt raises challenges regarding violation of the building code, those challenges are not properly raised in superior court because Mr. Pruitt failed to exhaust his administrative remedies." But this court, holding that the city "effectively denied Pruitt an opportunity to appeal its zoning decision" and that the superior court should have given Pruitt the opportunity to submit the issue of the code's meaning to the planning and zoning commission, today vacates the superior court's decision and remands the case to allow Pruitt to appeal.

Because the city specifically and in writing notified Pruitt of his right to appeal,¹² because Pruitt had constructive notice of his right to appeal,¹³ and because Pruitt has done nothing during the course of this case to make any claim that it is inequitable to enforce the city's laws, I respectfully dissent.

The linchpin of the court's opinion is its holding that the city "effectively denied Pruitt an opportunity to appeal its zoning decision." This conclusion rests on the court's careful distinction between whether *Page 1143 Pruitt should have appealed the city's building code rulings or whether he should have appealed the city'szoning code rulings, and its conclusion that the city's zoning code determination underlies all of its building code determinations. Focusing only on the city's zoning code decisions (and thereby ignoring every other communication from the city that unmistakably told Pruitt that his canopy was illegal), the court-concludes that Pruitt had "no way to know" that he had received a final decision from the city on the building code.

It is difficult to give credit to this conclusion. As the factual history above makes clear, the city had unequivocally notified Pruitt on multiple occasions that his proposal violated the applicable codes.¹⁴ His response — after an unsuccessful attempt to obtain a variance, from which he took no appeal — was to ignore the city and build his building and to occupy it in violation of the codes.¹⁵ It is illogical to assume that Pruitt might have entertained any doubt at all that the city had given its final decision. Moreover, by his action alone he mooted for all practical purposes any claim that he should be allowed to pursue an appeal.

Why the city's notice of Pruitt's appeal rights was sufficient

On October 24, 2001, Dave Calvert, the manager of the Engineering Utilities department of the City of Seward, sent a letter to Pruitt to "summarize past actions and provide [Pruitt] with the requirements for occupancy and use of [Pruitt's] building." The letter carefully recounted the history of the city's attempt to obtain compliance with its codes, set out a relevant portion of the building code, noted Pruitt's unsuccessful "appeal" to the Planning and Zoning Commission (the commission had denied Pruitt's request for a variance), and notified Pruitt not to occupy the building until the noted items were corrected and a certificate of occupancy issued. It ended with this notice: "As always, you can appeal this decision to the City Council if you desire."

Why Pruitt had constructive notice of his right to appeal

As noted above, this long-running dispute between the city and Pruitt involved multiple communications between the parties. The city frequently brought to Pruitt's attention its concern that his building would violate the zoning code¹⁶ and that its construction violated the building code.¹⁷ Pruitt was informed of his right to seek a variance (and did so), after the city sent him the relevant codes. He had constructive notice of the availability of the right to appeal set out in both the building and zoning codes.¹⁸ Why it is entirely equitable to enforce the city's zoningand building codes in this case

The court implicitly faults the city for expressing its determination "informally," and notes that in such cases "courts will determine the `finality' of the informal expression based on what is most equitable in that case." Even accepting the court's characterization,¹⁹ there is no inequity in the superior court's resolution of this case. Pruitt ignored multiple notifications that, in the view of the responsible officials, his proposed building would violate the law. He went ahead and built it. He was told that he should not occupy it until a correction was made. He went ahead and occupied it. When he determined that he needed to add a loading dock, *Page 1144 he was told that he could not obtain the necessary permit without correcting the original violation. Rather than comply, he constructed the loading dock without making the corrections, without obtaining the certificate of occupancy, and even without obtaining a building permit for the new construction. It is hard for me to accept the court's unstated conclusion that Pruitt has any claim to this court's (or Judge Christen's) power to do equity where the circumstances demand it.

For these reasons, I respectfully dissent from the court's decision to vacate the superior court's judgment.

¹ See (1) Letter, Linda-Rae Olsen, Planning Clerk, to James Pruitt, August 18, 2000, advising Pruitt that "canopy will extend into the setback;" (2) Fax, Linda-Rae Olsen, Planning Clerk, to James Pruitt, August 23, 2000, informing Pruitt that "the canopy situation may not fall under [city zoning code]"; (3) Letter, Rachael James, City Planner, to James Pruitt, March 6, 2001, stating "[b]ased on the building site plan, the canopy is in violation of City Code § 15.10.140;" (4) Inspection Report, Dave Calvert, City Inspector, to Jim Pruitt, May 21, 2001, commenting "Canopy is still in the setback;" (5) Inspection Report, Dave Calvert, City Inspector, to James Pruitt, June 4, 2001, noting "Canopy still in setback;" (6) Letter, Dave Calvert, Manager, Engineering Utilities, to James Pruitt, Oct. 24, 2001, citing "removal or modification of the Canopy" as primary item that needed to be corrected to qualify for a Certificate of Occupancy; (7) Letter, Dave Calvert, Building Official, to James Pruitt, May 6, 2003, explaining that the denial of a permit for the loading dock was due to having the "Canopy in the set back."

² Affidavit of Dave Calvert, Building Official, stating that on June 4, 2001 Pruitt "was notified . . . verbally as well as in writing that the canopy was in the setback" and that building officials "had numerous communications with Mr. Pruitt regarding the canopy."

³ Affidavit of Dave Calvert, Building Official, stating, "I conducted two [post-construction] inspections . . . and on both of the inspection forms noted that the canopy was in the setback."

⁴ Affidavit of James T. Pruitt, noting, "The City has refused to issue a certificate of occupancy . . . and to even consider an application for a building permit for further improvements at this location because the canopy is an alleged violation."

⁵ Letter, Dave Calvert, Building Official, to James Pruitt, May 1, 2003, noting Pruitt "occupied the building and [has] been operating a business (Ace Hardware) since November, 2001 in violation of the code, and [has] not responded to our requests for a correction of the violation."

⁶ Affidavit of Dave Calvert, Building Official, stating, "I informed Mr. Pruitt that I would be unable to issue [a building] permit until he had corrected the canopy setback problem and obtained a CO. for the building."

⁷ Letter, Dave Calvert, Building Official, to James Pruitt, May 6, 2003, noting that Pruitt had constructed a loading dock and citing the canopy in the setback as the reason for previously denying a permit for construction of the loading dock.

⁸ Id., citing Pruitt's lack of an occupancy permit as the reason for denying a permit to construct the loading dock.

⁹ Affidavit of Dave Calvert, Building Official, stating Pruitt built the loading dock "without a permit and without notifying me."

¹⁰ Letter, Dave Calvert, Building Official, to James Pruitt, May 6, 2003, warning Pruitt that he was in violation of the building code; Letter, Dave Calvert, Building Official, to James Pruitt, July 28, 2003, noting that almost ninety days had passed since the initial notice of violation.

¹¹ City of Seward's Complaint, Case No. 3AN-03-13457 CI, Nov. 20, 2003.

¹² Letter, Dave Calvert, Building Official, to James Pruitt, Oct. 24, 2001, stating, "As always, you can appeal this decision to the City Council if you so desire."

¹³ Section 105 of the 1997 Uniform Building Code establishes the Board of Appeals to "hear and decide appeals of orders, decisions or determinations made by building officials relative to the application and interpretation of this code. . . ."

¹⁴ See supra nn. 1-2.

¹⁵ See supra n. 3.

¹⁶ See, e.g., Letter, Linda-Rae Olsen, City Clerk, to Pruitt on August 18, 2000, informing him that the canopy would violate the zoning code and setting out the relevant section and her faxed letter to Pruitt on August 23, 2000 sending information on obtaining a variance.

¹⁷ See, e.g., Letter, Dave Calvert, Building Official to Pruitt on May 6, 2003 explaining that a permit for the loading dock was denied because the building was in violation of the building code.

¹⁸ Seward City Code 15.10.410 (appeals under the zoning code); Section 105, 1997 Uniform Building Code (city's building code in effect at the time pertinent to this case) (appeals under the building code).

¹⁹ It is difficult to do so. There is nothing particularly "informal" about multiple written notifications from a city to a citizen that the citizen has violated the law.