BY JEN NOWELL
Daily Post Correspondent
A California appeals court shot down a lawsuit from a Palo Alto couple who argued negligence on the part of the city for allowing the construction of a two-story house next to their own with windows overlooking their home, intruding on their privacy.
Jim and Qingmin Wang sued the city and Palo Alto-based WEC and Associates in July 2016 after much back-and-forth over the development of a new home located at 826 Boyce Ave. and its windows that overlooked the couple’s home and backyard.
Palo Alto city officials argued and the appeals court agreed that the city was protected from the Wang’s claim under a state law that provides immunity to a city for discretionary decisions, such as the issuance of a building permit.
But the Wangs contended Palo Alto was not immune from damages because the city’s decision was not discretionary. According to court filings, the couple argued “the city was ‘required’ by ordinance and implementing guidelines ‘to assure compliance’ with ‘tightly detailed design criteria to protect the privacy of neighboring homeowners before the plans can be approved through the issuance of building permits.’”
The appeals court, however, found that issuing building permits is a discretionary function. Building officials have “no mandatory duty to issue any particular building permit at all, even if a proposed application and plan meet all existing code and regulatory requirements which would be applicable to a proposed project,” an appeals court judge wrote.
The city’s building guidelines state that care should be taken to “limit direct sight lines into windows and patios located at the rear and sides of adjacent properties in close proximity,” according to court documents. However, the guidelines also say that “complete privacy is not a realistic expectation.”
This does not impose a “mandatory duty” to protect the Wang’s privacy, the appeals court found. It is a discretionary decision on the part of the city as to whether or not a project follows the guidelines.
Home next door added an upstairs
The Wangs have owned their home on Boyce Avenue since 1999, and until 2013, the home next door to them was a single-story home that had no windows looking into the Wang’s home, giving them privacy.
When WEC submitted plans to the city in February 2012 for a two-story home located next door to the Wangs, the couple were assured by city planners and the developer that the plans for the upstairs windows facing their home included double-hung windows that would have non-transparent etched or stainless glass in the bottom half, according to court documents.
With that, “any risk was minimized if not avoided” of seeing into the Wang’s home or backyard, the suit stated. So the couple didn’t object to the application or the plan.
But WEC’s application didn’t disclose that windows at a higher elevation did risk intruding on the Wang’s privacy, the couple claimed. Wang said he didn’t notice this until July 2013, after construction began and the framing was up.
Window problem
The couple went back and reviewed the plans, which “misleadingly concealed the elevation disparity between the windows on the new residence and his windows,” according to their lawsuit.
Beginning in July 2013, Jim Wang “continually complained” to the city about the risk of the new home’s windows, court documents state.
In August 2013, Wang complained to a city council member about the windows, and the council member visited the Wang’s home, expressing concern over the privacy issue and promised to talk to city planning officials.
A city planning official told Wang in November 2013 the city was continuing to look for a solution to the window problem.
In December of that year, however, Wang discovered the new home’s windows were about six inches taller than depicted in the application, which increased the opportunity to see into the couple’s home and backyard.
The Wangs learned in February 2014 the city had approved the plans for the new home based on incorrect dimensions in the plans that showed the windows smaller than their actual size, according to court documents.
As part of its dismissal of the Wangs’ lawsuit, the court found the city is still immune even if negligence is involved in issuing a building permit.
Jim Wang met with then-City Manager Jim Keene and City Attorney Molly Stump in April 2014 to discuss the issues. Wang claims that Keene promised to get back to him. And in May 2014, Keene allegedly wrote to Wang and said that given the recent approval, it would be difficult to get a solution.
Wang met with a few more people from the city, including then-Councilwoman Liz Kniss, who visited his home in October 2014. Wang claims Kniss told him the city would probably do nothing, and told him to fill out a form, but didn’t specify which one.
He then filed a police complaint.
‘Some mistakes occurred’
Former city Planning Director Hillary Gitelman responded to Wang in November 2014 concluding that “‘some mistakes occurred,’ but none that rose ‘to the level that would enable the city to force changes to be made to the house next to yours at this late date,’” according to court documents.
In October 2015, Wang returned to Gitelman asking what he could do. She allegedly told him he could file a public entity claim against the city to seek money damages, which he filed in November.
But the city issued a Notice of Untimely Claim, stating Wang had not filed it within a year of the cause of action.
Read the appeals court ruling here.
Yes, you can build a 2-story house in Palo Alto, if you have enough money.
The article reports the appeals court found a city’s issuance of permits is a “discretionary function” thus allowing for cities to issue permits which violate the local and other laws or withhold permits for projects that comply with the law.
This begs clarification and better reporting as it implies cities can grant or withhold permits at their discretion, based on their whims and fancies and whether they like or dislike someone who may or may not bestow favors to City employees above or below the table. That matters very much to all homeowners, in Palo Alto or elsewhere too!, for reasons explained below.
More importantly it flies in the face of prior precedence in the CA Court of Appeals. To cite from what the Appeals Court ordered earlier (case info below):
Just as the City has no discretion to deny a building permit when an applicant has complied with all applicable ordinances, the City has no discretion to issue a permit in the absence of compliance. ( Terminal Plaza Corp. v. City and County San Francisco, supra, 186 Cal.App.3d at pp. 834-835; Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 190-192 [ 140 Cal.Rptr. 619].)
The Court then ruled the permit issued (that did not comply with the Code) be revoked . See Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1356.
Hey, “Really?” … why don’t you read the court’s ruling before displaying your ignorance.
Hey “RGV”, my comment concerned the article, not the court’s ruling.
So if you have something to say about the article or where my comment was inconsistent with it, put it out here.
If you believe the article misstated the Court’s ruling, put that out here and make clear to us ignoramuses where it was wrong.
If you can’t do either you are displaying your inability to read plain and simple English and confirming a triple pairing of your hubris, ignorance, and (psychological) projection.
@Really? states: “This begs clarification and better reporting as it implies 1. cities can grant or withhold permits at their discretion, 2. based on their whims and fancies and 3. whether they like or dislike someone 4. who may or may not bestow favors to City employees above or below the table.”
Let’s break that down, OK.
1. Yes, cities do have discretion over granting permits. That’s settled law.
2. No, they need to have ordinances that establish the parameters for such discretion. Again, settled law.
3. “Whether they like or dislike someone.” That’s not part of the facts in this case. Maybe “Really?” knows something that the court wasn’t told about.
4. “Who may or may not bestow favors to City employees above or below the table.” That’s clearly a violation of Section 68 of the Penal Code. “Really?” if you’re aware of such facts, you should call the District Attorney.
“That’s not part of the facts in this case”
You apparently know “the facts in this case”.
What’s stopping you from presenting the salient elements here?
The “discretion” you believe cities have in granting permits, which you assert is “settled law”, is contradicted by Horwitz whose salient elements I’ve presented.
Present court and legal precedents establishing as “settled law” cities “discretionary powers in granting permits.” Also present the facts of this case that contract the article or my comment(s). Not doing either and instead attacking me only confirms you don’t know what you are talking about and expect bluster and bullying to prevail.
The facts are provided in the ruling. Take a few minutes to read it.
>The facts are provided in the ruling. Take a few minutes to read it.
Your tactic confirms you are another one of those bullies who bluster and assert nonsensical statements expecting others to defer to you. And when called to account you turn evasive and slip & slide away.
“RGV”, I’ll do what you recommend AFTER you have confirmed you read the article to which my (and other comments, except your own) apply *and* AFTER you confirm you’ve read Horwitz which I cited to render null your assertions about “settled law” granting “cities discretion re building permits.”
Meanwhile, and this relates to the others tracking the comments here: from what I understand the Fed Ct in the Los Altos matter stripped the defendant City agents of their immunity. i.e., the Court found not just the City liable but also found the individual City employees personally liable too. As in Palo Alto it involved fraudulent project plans that intentionally misrepresented relevant facts which City agents knew were false and yet they approved the plans, inspected and approved the project although they knew well it was all a fraud. In Palo Alto the responsible individuals (City agents, etc.) and homeowner and their contractors apparently got away (so far). In Los Altos, their reckoning is drawing near.
Make what you may of that it simply means: City do NOT have discretion to withhold permits when the project complies with the Code nor do they have discretion to grant permits and approve inspections when the project violates the Code. Regardless of what the Court ruling may be in the Wang matter it simply means RGV’s assertions about “settled law” granting Cities that discretion is nonsense, complete nonsense.
The contractor puts the windows in the wrong place and when they’re done, the city tells the neighbor to get used to it. Seems slanted toward the contractor and against the neighbor.
The monkey is on the homeowner’s back to correct their contractor’s mistake(s).
And the City is obligated to have such “mistakes” corrected to comply with the project’s plans approved by the City and the local Codes.
Imagine what the alternate scenario would result in: a homeowner submits project plans that are approved, the project is completed differently, the differences violate the Code and result in myriad other issues concerning privacy, fire and public safety, etc., the discrepancies are attributed to “contractor’s errors”, the City tells neighbors and the rest of the community to “get used to it”.
That appears to be what the City is doing with the Wangs. I hope they take it to the CA Supreme Court and hold the City (and the neighbor the City is protecting) to account. As for the contractor’s mistake: that’s between the homeowner who hired them and the contractor.
After IR approval, the second floor windows (facing both side neighbor houses) changed type and increased size. Per code 18.12.110(h), the project need go through IR again.
Here is Palo Alto Municipal Code 18.12.110(h) Changes to Approved Projects
The director may approve changes to a previously approved individual review project without following the procedure set forth in Section 18.77.075 if those changes do not affect compliance with the individual review guidelines. Examples of such changes include:
(1) Reductions in window or door size, or reductions in the number of windows.
(2) Changes to aspects of the project not reviewed under individual review, such as materials or non-street-facing first story windows.
(3) Changes that do not affect privacy/streetscape.
(4) Increases in setbacks.
(5) Reductions in second floor mass that do not affect privacy or streetscape.
“After IR approval, the second floor windows (facing both side neighbor houses) changed type and increased size”
It appears the suit was only filed and pursued by one of the side neighbors (the Wangs). Why didn’t the other neighbor join the Wangs? after all the change in window size and type affects them/their property too as it does the Wangs.
On the face of it it appears funny business involving the {contractor, homeowner, City agents, City Council} with those overseeing complicit in a cover up of what transgressed the local law, whether through errors of commission or omission by the contractor and/or City agents.
From what I can tell those on City Council that were complicit and did nothing–and that includes Kniss et al–would not want or permit their neighbor to do or get away with what the Wangs’ neighbor did and is getting away with.
An “RGV” who apparently supports these shenanigans won’t permit his neighbor to have windows overlooking his yards, esp when those windows were not reviewed or approved by City officials entrusted with that responsibility by taxpayers and compensated by those taxpayers.
The Court ruled as it has, relying on what was presented it (by attorneys, competent or not). I see this case as meriting the attention of the CA Supreme Court and argued by a competent appellate court attorney.
Really?
Do you like to visit the site?
I don’t think my visiting or not the site would make a difference.
It may have helped some time ago, before the litigation got to this stage.
For what it matters and from the little I know: the City of Los Altos is now a defendant in ongoing Federal litigation for unequal enforcement of its municipal (specifically building) code, among other things. As in Palo Alto the Los Altos Council attempted to cover up shenanigans by Los Altos staff that allowed for the illegal expansion and conversion to a dwelling of an illegal structure that sat on the property lines (fire hazard, etc.). People that lost their jobs thus far over the matter: the City Manager, the former City Attorney, the former Planning Director, his successor, the Building Official, etc. The Wangs may want to contact the plaintiff in that matter
Hi “Really?” You are so competent. Can I contact you directly?
The Wangs may want to read up on the Los Altos suits which has some bearing on what transpired concerning them in Palo Alto.
And if they find what they read any relevant they can contact the plaintiff and his attorneys in the Los Altos matter.
That said I’m a bystander, my comments are based on what I read and heard (not what I directly experienced), and don’t know and can’t predict what, if anything, would come out of the Wangs communications with the Los Altos plaintiff, if any.
Thanks “Really?” for the article.
For Palo Alto’s case here, the city did nothing to correct the construction errors. Ghost Ship vs City of Oakland case may be referenced here:
In the Ghost Ship case, Seligman ruled Oakland may have had a “mandatory duty” to ensure safety at the Fruitvale district warehouse. The judge noted a key difference in the two cases in his most recent ruling.
Mark Gergen, a UC Berkeley law professor who reviewed Seligman’s rulings, said there are factual differences in the Ghost Ship and San Pablo Avenue cases, but the immunity statute should also apply to the warehouse fire because it covers government entities for failing to inspect buildings.
“The judge is at least saying, try to do something, and if you don’t do anything at all you are not within the immunity,” Gergen said.
In the Los Altos matter, from what I understand the Fed Ct judge stripped the City’s agents (City Manager, the Building Official) of their immunity. i.e., those two are now personally liable. The City of course is also liable.
Qualified Immunity is not what they thought it was. It is qualified, City employees can’t hide behind it no matter what, and such immunity can be taken away leaving the culprits exposed and VERY vulnerable.
RGV claims cities have discretion in issuing permits, presumably building permits. And he asserts such discretion is “settled law.”
He might do well to read up on what the CA Court of Appeals ruled in the matter of Horwitz vs City of LA. To cite (yet again, as RGV not only failed to read and understand it earlier but ignored it later), what follows is the Court’s very statement:
Just as the City has no discretion to deny a building permit when an applicant has complied with all applicable ordinances, the City has no discretion to issue a permit in the absence of compliance. ( Terminal Plaza Corp. v. City and County San Francisco, supra, 186 Cal.App.3d at pp. 834-835; Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 190-192 [ 140 Cal.Rptr. 619].)
See Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1356.
This blows to smithereens RGV’s assertions re a city’s “discretion in granting permits” and such discretion being “settled law.”
Onto the remaining part of RGV’s comment:
My comment concerned the article, not what the Court was told or not told. Since RGV apparently knows more of what the Court was told or not, why not (I ask again) share that here? Further “discretionary powers to grant permits” vested in the hands of public employees–apparently something RGV believes is “Settled law” and approves of–can lead to discrimination, corruption, and worse. It is to prevent them that, as Horwitz makes clear, cities have no discretion in the granting of permits for projects that violate the code nor hold back permits for projects that comply.
Good analysis.
Ever thought of putting up curtains and blinds if they’re so concerned about privacy? The Wang’s do not acquire any superior rights for being there first. There position is if anyone has a one-story home, a two-story home cannot be built next door.
Me: Doesn’t the city have a building inspector who can check the height of windows?
Hamilton Burger: Objection, irrelevant, immaterial and ridiculous.
Witness: (Sobbing) Yes, I killed him. I did it. I had to do it.
Judge: Will the bailiff take the witness into custody.
“Me: Doesn’t the city have a building inspector who can check the height of windows? Hamilton Burger: Objection, irrelevant, immaterial and ridiculous.”
Aren’t those building inspectors expected to confirm the project’s execution is consistent with the project’s plans that were reviewed and approved by city planning officials?
Aren’t those inspectors and building and planning officials richly compensated, with lifetime pension and benefits in exchange for their performance of their duties and obligations?
And if they are and were remiss, through “errors” of omission or commission, aren’t those that oversee them (their managers and those that manage the mangers: Council members) expected to step in, correct those “errors”, and hold those involved accountable?
The answer is blowin’ in the wind.
Would this have transpired the same way if the Wangs were not a minority, if a white family complained about their privacy being violated by a minority family’s windows that did not comply with their own project plans and City code?
The answer again is blowin’ in the wind.
You’ve lost the argument when you play the race card.
“You’ve lost the argument when you play the race card.”
And you have lost the argument when you deny race MAY be a or THE factor especially when some apologists argue “cities do have discretion over granting permits” and in a mixed, increasingly diverse city such as Palo Alto, such “discretion over granting permits” may well involve the race of the complainant and/or beneficiaries of the discretion.
Simply put, where there is discretion there is room for discrimination.
And such discrimination may involve race, class, and other factors.
To deny that is to deny the obvious.