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Law and Real Estate

May 31, 1987|DOUGLAS RING and BUSTER SUSSMAN | Ring is a partner in the law firm of Shea & Gould. Sussman is a free-lance writer. and

How long can a city stall before saying "yes" or "no" on a controversial building project?

By stalling, the city might want the developer to give up. The city, then, would avoid political and legal problems that could arise from approving, disapproving or even from reviewing the project.

This was the issue raised in Howard Palmer vs. the City of Ojai.

In December, 1980, Palmer submitted an application to develop 31 acres. Before so doing, he already had spent about a year in informal discussions with the city.

Upon receiving the application the city stamped it "Accepted," but despite repeated complaints from Palmer, the city took no further action.

In January, 1983, the by then highly frustrated developer demanded his building permit.

Finally, in February, 1983, the city held a public hearing at which the project was rejected.

"Foul," claimed Palmer, pointing to a state law that requires a public agency to either approve or disapprove a project within one year after accepting an application. Since Ojai failed to act in the required time, Palmer said he was entitled to get his permit.

"Wrong," answered Ojai. The city admitted that the law does require action within a year, but the law includes no penalty. So, as far as the city was concerned, the law was just for its guidance.

The Court of Appeal agreed with Palmer and said that he was entitled to get his permit.

The court noted that by not creating a penalty the state Legislature had, in effect, denied Palmer the benefit of the law.

All of which shows why developers need both patience and deep pockets.

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