About Amerisurv| Contact    
Magazine | Newsletter    
Flickr Photos | Advertise    
HomeNewsNewsletterAmerisurv DirectoryJobsStoreAuthorsHistoryArchivesBlogVideosEvents
 
advertisement


Subscriptions
Rendezvous
Please Join Us . . .
At Historic Concord, MA
Visit Minuteman Park, Walden Pond, and the Old North Bridge.
Details:
SurveyorsHistoricalSociety.com
Rendezvous
Sponsored By

Software Reviews
Continuing Series
     RTN
An RTN expert provides everything you need to know about network-corrected real-time GNSS observations.
Click Here to begin the series,
or view the Article PDF's Here
76-PageFlip Compilation
of the entire series
Test Yourself

Got Answers?
Test your knowledge with NCEES-level questions.
  Start HERE
Meet the Authors
Check out our fine lineup of writers. Each an expert in his or her field.
Wow Factor
Sponsored By


Product Reviews
Partner Sites

machinecontrolonline 


lbszone.com

GISuser.com

GeoJobs.biz

GeoLearn

 

Spatial Media LLC properties

Associates

ASPRS

newsnow 

Home arrow Archives   The American Surveyor     

Vantage Point: A Homeowner's Setback Print E-mail
Written by Wendy Lathrop, LS, CFM   
Saturday, 12 November 2011

A 118Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Minnesota's Supreme Court recently struck down earlier decisions favoring a homeowner's complaint against the local city for errors related to the homeowner's shed. While Dr. Rajbir Sarpal and his wife Dr. Carol Sarpal had prevailed in the district and appellate courts, this May 2011 opinion (797 N.W.2d 18) remands the case back to district court, primarily regarding the point of equitable estoppel against the city.

The Sarpals bought a lot in the City of North Oaks in July 2003 and had a house built on it. Two years later they had a general contractor install an in-ground swimming pool. And in 2006, they decided to undertake a do-it-yourself project, constructing a garden/pool shed without a contractor. Dr. Rajbir Sarpal (referred to as "Sarpal" from here on) went to the City to get a building permit, and was informed that first he needed approval of the Architectural Supervisory Committee (ASC) of the North Oaks Homeowners Association (NOHOA). Following up on those directions, Sarpal heard from ASC that he needed to submit additional information for its review, including "[a]n as-built survey with the location of the pool, pool equipment, fences and water feature," and that he might be able to get one from either the surveyor of the lot pre-construction or the contractor who had built his house. Failing in both attempts, NOHOA suggested that the City might have a survey in its files.

Returning to the City offices, Sarpal presented the letter from ASC outlining its requirements for an as-built survey, and was handed a survey dated October 2003, apparently with assurance that it was the plan he needed. A few details that Sarpal, as a layperson, did not recognize were that the structure on this plan was labeled "proposed house" and that the house had been built in a different location. Before readers start cringing, be assured that the surveyor was not dragged into the ultimate legal morass. However, this may make some rethink the notes and date stamps we place on our plans in case of future (mis)use.

Sarpal drew his proposed shed on a copy of this survey (probably prompting more cringing from surveyors reading this), along with measurement lines from the proposed house (not from the property lines) to the proposed shed, showing the shed in compliance with the 30-foot rear setback line. ASC approved the plan, and the city approved a building permit once Sarpal signed a form that stated in part, "I hereby certify that I have read and examined this application and know the same to be true and correct. All provisions of laws and ordinances governing this type of work will be complied with whether specified herein or not." Because he was acting as his own general contractor, Sarpal also had to sign a "Property Owner waiver" form stating, "I am solely and personally responsible for any violations of the State Building Code and/or jurisdictional Ordinance in connection with the work performed on this property." Any surveyor who has been handed a standard certification to sign understands the liability associated with such an action. Sarpal apparently did not.

Sarpal built his shed, using the locations he had calculated from the house to stake it out, and the City inspected and approved the foundation he laid. After Sarpal framed out the shed, the City re-inspected and re-approved the structure, and after he finished the shed the City issued a certificate of completion. While one would think this is the end of the story, it resumes a year later when the City sent Sarpal a letter in September of 2007.

The difference between the proposed and actual locations of the house was 15 feet. This meant that Sarpal's shed encroached into the 30-foot rear setback area by 15 feet. Further, the rear of the Sarpal property was subject to a 15-foot wide trail easement, and the shed encroached into that by eight feet. The City's 2007 letter signified North Oaks' recognition of the trail easement's obstruction by Sarpal's shed, giving him 30 days to move it. Unable to believe this turn of events, Sarpal hired a surveyor, who confirmed the shed's encroachment. Sarpal's request for a variance was denied, but his subsequent request for an extension (since Minnesota winters are known to be below optimal curing temperatures for the new concrete foundation he would need to pour) was approved.

But Sarpal didn't move the shed, and the City filed suit in the County District Court in 2008 for violations of ordinances, trespass, and nuisance. Sarpal responded with claims of equitable estoppel based on reliance on the string of City actions, starting with the survey handed to him and continuing with City inspections, approvals, and the final certificate of completion. "Equitable estoppel" is often raised when one party relies on the actions of another to the first party's detriment, and for the Sarpals this meant significant expenses in moving the shed's foundation, the shed itself, sprinklers, and a fence.

Here is where it gets sticky. The first two courts decided in favor of Sarpal, but Minnesota's Supreme Court noted that the claim of equitable estoppel against a government entity must satisfy four elements, and not all were met in this instance: "First, there must be `wrongful conduct' on the part of an authorized government agent... Second, the party seeking equitable relief must reasonably rely on the wrongful conduct... Third, the party must incur a unique expenditure in reliance on the wrongful conduct... Finally, the balance of the equities must weigh in favor of estoppel." The third point was undisputed, leaving three points for Sarpal to prove.

Finding that "erroneous government action is not necessarily `wrongful,'" the high court stated that providing assurance that Sarpal could use an outdated survey and later reviews and approvals were merely mistakes and not "wrongful actions." North Oaks had no reason to notice or correct Sarpal's error, and did not know that he would rely on a location of a "proposed house" or that his house was built any differently from the location Sarpal had submitted for review. Thus there was no intentional wrongdoing, and by failing to satisfy the first element of equitable estoppel, the entire Sarpal argument fails.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 118Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 
< Prev   Next >

 American Surveyor Recent Articles
Editorial 
Thought Leader: Land is Too Important to Be Left to Land Specialists
A while back I was searching the Internet for an old treatise on land titles. A Google query yielded a book published in 1914. The author was Charles Claudius Kagey and the book was titled "Land Survey and Land Titles, a book for boys and girls, a reference volume for property owners, a text ....
Read the Article
Jason E. Foose, PS 
Decided Guidance: Wacker vs. Price - Irony in Sevenfold
This month's case takes us to Phoenix, Arizona in 1950. The Arizona Supreme Court went all guns-a-blazin' in Wacker vs. Price (216 P.2d 707 (Ariz. 1950)). Maybe it's just me, but I'm sensing plenty of irony and have taken license to point it out along the way. I like what the Court did with this case ....
Read the Article
Allen E. Cheves 
Around the Bend - A Visit to Carlson Software
The Ohio River is one of America's greatest, running near 1,000 miles between Pittsburgh and the Mighty Mississippi. Much of the coal and other products that fueled our nation's industrial expansion flowed between the shores of this maritime ....
Read the Article
Lee Lovell, PS 
Surveying & Mapping Economics Part 3 - Customers & Services
This article continues an inquiry into the economic conditions of the Surveying and Mapping industry (NAICS 541370) using data from the U.S. Census Bureau. This time we will look at customers and services. The data comes from the Economic Census conducted every 5 years on American ....
Read the Article
Jerry Penry, PS 
True Elevation: Black Elk Peak
Black Elk Peak, located in the Black Hills region of South Dakota, is the state's highest natural point. It is frequently referred to as the highest summit in the United States east of the Rocky Mountains. Two other peaks, Guadalupe Peak in Texas and ....
Read the Article
Larry Trojak 
Bringing The Goods - Mobile Scanning an Integral Component
When Jim Smith, Jerrad Burns and Charlie Patton left the Memphis division of a major construction company in 2015, they took with them the knowledge of how to get even the most complex jobs done and what equipment could best serve them in making that happen. So when they joined West ....
Read the Article
 
Lee Lovell, PS 
Test Yourself 41: Integers, Integers, and Integers
ABF is a 5:12:13 triangle, ACF is a 48:55:73 triangle, ADF is a 3:4:5 triangle, and AEF is a 7:24:25 triangle, all with integer sides and inscribed in a semi-circle. What are the lengths of BC, CD, and DE? ....
Read the Article
Wendy Lathrop, PS, CFM 
Vantage Point: Sunset or Sunrise?
While we often think of legislated government programs as static, they do change over time. Such evolution and opportunity for transformation are part of the dialogue in reauthorizing these programs. Every so many years there is a sunset on each government program, and this September is the ....
Read the Article
 

deliciousrssnewsletterlinkedinfacebooktwitter

Amerisurv Exclusive Online-only Article ticker
Featured Amerisurv Events
List Your Event Here
please
contact Amerisurv


Google
 
AMERISURV TOP NEWS

GeoSLAM
Engineering Predictions

GOT NEWS? Send To
press [at] amerisurv.com
INTERGEO TV
Online Internet Content

Sponsor


News Feeds

 
Subscribe to Amerisurv news & updates via RSS or get our Feedburn
xml feed

Need Help? See this RSS Tutorial

Historic Maps
Careers

post a job
Reach our audience of Professional land surveyors and Geo-Technology professionals with your GeoJobs career ad. Feel free to contact us if you need additional information.

 

Social Bookmarks

Amerisurv on Facebook 

Amerisurv LinkedIn Group 

Amerisurv Flickr Photos 

Amerisurv videos on YouTube 

twitter

 




The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
905 W 7th St #331
Frederick MD 21701
301-620-0784
301-695-1538 - fax