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.
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.