Colleagues: The City of Yukon building inspector issued a permit for a residential accessory building. After construction it was determined that the location violates the set-back requirements. There was no survey and the permit was issued for the accessory structure that is encroaching 12' 6" into the required 25 feet rear yard setback. The inspector is required to make sure that all structures meet all the setback requirements so the issue appears to be the City's and not the property owner's. A neighbor is demanding that the structure be relocated to comply with the code. It was built on-site with a concrete pad, so moving will be challenging and expensive. Does the City have any options other that to absorb the cost of relocation of the building? Roger Rinehart RINEHART LAW OFFICE A Professional Corporation 115 S. Rock Island Avenue P.O. Box 669 El Reno, Oklahoma 73036 405-262-2360 (phone) 405-262-2395 (fax) Roger@Rinehartlaw.net<mailto:Roger@Rinehartlaw.net> www.Rinehartlaw.net<http://www.rinehartlaw.net/> THE INFORMATION IN THIS MESSAGE IS CONFIDENTIAL AND INTENDED FOR THE SOLE USE OF THE INTENDED RECIPIENT. THIS E-MAIL CONTAINS INFORMATION THAT IS PRIVILEGED ATTORNEY WORK PRODUCT AND MAY BE PROTECTED BY ATTORNEY-CLIENT AND OTHER PRIVILEGES. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE ADVISED THAT RETENTION, USE, DISSEMINATION, AND COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU RECEIVED THIS MESSAGE IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY ELECTRONIC MAIL OR TELEPHONE AT (405) 262-2360 AND DELETE THIS MESSAGE. Sending an e-mail to Rinehart Law Office or to any of our professionals does not create a lawyer-client relationship.

Roger, This is probably one of those issues that falls into the area because what is 'right' and what the law might require. I'd start by taking a look at *McCurley v. City of El Reno*, 1929 OK 306, 280 P. 467. The case probably doesn't apply to protect the City here since the work was already done - the case stands for the proposition that a building permit, granted because of a factual mistake and which is in violation of the ordinances, can be revoked so long as it was done within a reasonable amount of time and where the permittee hasn't substantially changed their position (essentially, detrimental reliance). Here, they did act in reliance on the permit and built the structure. So I'm not sure you could simply revoke the permit. But I don't think that forecloses taking other action. If the City does order them to move the structure, the question would be whether City would be liable for damages. Which brings us to the exemptions in the GTCA, 51 O.S. 155. One potentially applicable exemption is number 12: any loss or claim which results from "Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority". Another would be 13: any loss or claim which results from "Inspection powers or functions, including failure to make an inspection, review or approval, or making an inadequate or negligent inspection, review or approval of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety, or fails to conform to a recognized standard". Number 13 is arguably one of the most powerful exemptions from liability in the GTCA, since it expressly applies to not just the exercise of inspection and approval powers, but also for inadequate or negligent inspection, review or approval. As a practical matter, there may be a desire to find a way to 'fix' the issue. I recall a similar issue coming up several years ago with another City. Developer came in and tore down an eyesore house that had been converted to commercial uses and built up a very nice, new commercial building. A few years later, the owner came to the City in a panic - turns out, that property *never* met the City's ordinance requirement for parking. The reason it didn't meet the requirements is that the contractor didn't construct the building in the right place on the property (the plans had the building and parking lot laid out to meet the code, but the building was then built several feet closer to the front property line, which resulted in there not being room for as many spaces in the front, and not enough room in the back to make it up). They were considering selling the property (a sale the City was on board with - the property wasn't being used for retail sales but would be if the sale went through), but were concerned that the fact that the property didn't meet the code requirements for parking could affect their ability to sell it. What that City ended up doing was having the owner apply for a variance, which the BOA approved, and the Council did not vote to appeal the approval of the variance (even though it didn't meet the statutory criteria for granting of a variance). And, as I understand it, the only reason they had the person go through the motions of obtaining a variance is because the owner/seller wasn't comfortable just relying on the assurances from the City that they would never seek to revoke occupancy or otherwise try to enforce the parking requirements given that their (former) City Inspector had signed off on everything and the first time the City knew there was an issue was when the owner brought it to their attention. Not saying that is the best solution - just saying that is a solution that a City came up with in, admittedly, a larger scale issue. Matt On Tue, Nov 12, 2024 at 11:03 AM Roger Rinehart via Oama < oama@lists.imla.org> wrote: > Colleagues: The City of Yukon building inspector issued a permit for a > residential accessory building. After construction it was determined that > the location violates the set-back requirements. There was no survey and > the permit was issued for the accessory structure that is encroaching 12’ > 6” into the required 25 feet rear yard setback. The inspector is required > to make sure that all structures meet all the setback requirements so the > issue appears to be the City’s and not the property owner’s. A neighbor is > demanding that the structure be relocated to comply with the code. It > was built on-site with a concrete pad, so moving will be challenging and > expensive. Does the City have any options other that to absorb the cost of > relocation of the building? > > > > > > Roger Rinehart > > > > *RINEHART LAW OFFICE* > > *A Professional Corporation* > > 115 S. Rock Island Avenue P.O. Box 669 > > El Reno, Oklahoma 73036 > > 405-262-2360 (phone) > > 405-262-2395 (fax) > > > > Roger@Rinehartlaw.net > > www.Rinehartlaw.net <http://www.rinehartlaw.net/> > > > > *THE INFORMATION IN THIS MESSAGE IS CONFIDENTIAL AND INTENDED FOR THE SOLE > USE OF THE INTENDED RECIPIENT. THIS E-MAIL CONTAINS INFORMATION THAT IS > PRIVILEGED ATTORNEY WORK PRODUCT AND MAY BE PROTECTED BY ATTORNEY-CLIENT > AND OTHER PRIVILEGES. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE > ADVISED THAT RETENTION, USE, DISSEMINATION, AND COPYING OF THIS MESSAGE IS > STRICTLY PROHIBITED. IF YOU RECEIVED THIS MESSAGE IN ERROR, PLEASE NOTIFY > US IMMEDIATELY BY ELECTRONIC MAIL OR TELEPHONE AT (405) 262-2360 AND DELETE > THIS MESSAGE.* > > *Sending an e-mail to Rinehart Law Office or to any of our professionals > does not create a lawyer-client relationship.* > > > > > > > > > > > -- > Oama mailing list -- oama@lists.imla.org > To unsubscribe send an email to oama-leave@lists.imla.org >