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

Sponsored By

Software Reviews
Continuing Series
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







Spatial Media LLC properties




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
Marc Cheves, PS 
Editorial: A Great Year to be a Surveyor
Some magazines have what are called "theme" issues. That is, most of the content is focused on one particular subject. In my 22+ years of survey magazine publishing, my philosophy has always been to have a little bit of everything in each issue, thereby eliminating the possibility that ....
Read the Article
Jason E. Foose, PS 
Decided Guidance: Case Examinations: Halverson v. Deerwood Village
Whew! We really beat the snot out of Bryant v. Blevins and practical locations. Well this month we're back on new case that hit the Minnesota Supreme Court's docket in 1982. We've got the familiar gymnastics of jurisprudence featuring an extraordinary array of flying rope stretchers ...
Read the Article
Michel Philips 
Extreme Environment Surveying
A Franco-Chilean team of cave divers used the Nautiz X8 rugged handheld for marine cave surveying, gathering data to classify the inaccessible northern half of Madre de Dios for UNESCO World Heritage. The team of cave divers used the Nautiz X8 ....
Read the Article
Erik Dahlberg 
The Original Green Engineers
Sometimes, it's best just to leave things as you found them. That's the lesson shared by Dr. Richard Miksad and his students at the University of Virginia. As a result of studies covering nearly a decade, Miksad's teams have developed detailed ....
Read the Article
Dave Lindell, PS 
Test Yourself 49: No Dimensions
In square A-C-D-B with side S, C-E is tangent to the semicircle Q1 with diameter B-D. Q2 is the inscribed circle of A-C-E. The tangent to Q1 and Q2 meets the sides of the square at F and H and intersects C-E at t G. Q3 is the inscribed circle of C-G-H. What is the ratio of the radii of circles ....
Read the Article
Jerry Penry, PS 
Discovery on Grizzly Peak
When First Lieutenant Montgomery M. Macomb arrived in Carson City, Nevada, from Washington D.C., on July 28, 1878, his assigned survey crew from the 4th Artillery was waiting and ready for the new field season. At age 25, Macomb was the leader ....
Read the Article
Wendy Lathrop, PS, CFM 
Vantage Point: Fighting City Hall Over Land
Once upon a time (1989 to be exact) in a place not so far away from where I live, a man (Francis Galdo) bought a home across the street from a vacant parcel owned by the City of Philadelphia. That parcel, along with others, had been acquired by condemnation back in 1974 subsequent to a 1956 ....
Read the Article
Patrick C. Garner, PS 
Book Review: Boundary Retracement: Processes and Procedures
When I was in my mid-twenties and learning the honorable profession of land surveying, I was lucky to be guided by a mentor who would grab a book off his office shelf and say, "Every surveyor should have a copy of this!" The first example he waved at me was Davis, Foote and Kelly's Surveying ....
Read the Article


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


Geneq Introduces
Net20 Pro Receiver

press [at] amerisurv.com
Online Internet Content


News Feeds

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

Need Help? See this RSS Tutorial

Historic Maps

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 



The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
7820B Wormans Mill Road, #236
Frederick MD 21701
301-695-1538 - fax