Radach v. Gunderson

Eugene and Adriana Radach (plaintiffs) owned a vacation home in the City of Ocean Shores (defendant) on the waterfront. A vacant lot separated the Radachs’ lot from a lot owned by Ole and Barbara Gunderson (defendants). Under the city’s zoning code, structures on these lots had to be set back from the property line nearest the waterfront by at least 50 feet (the setback restriction). In 1977, the Gundersons, who lived out of town, hired David Bickmore to build a house on the Gundersons’ property, including obtaining relevant permits. Bickmore mistakenly believed that the setback restriction was 40 feet. Bickmore applied to Ocean Shores for a building permit, showing the proposed house set back 40 feet from the oceanfront property line. The city building department approved the permit without noticing the code violation. At Eugene’s first opportunity after construction was underway, he observed that the Gundersons’ foundation was too close to the ocean. Eugene made efforts to contact Bickmore and the city. Other residents also complained to the city inspector. In early January 1978, the city notified the Gundersons and Bickmore of a potential issue with their house construction. The Gundersons requested a zoning variance, which was rejected. The Gundersons temporarily stopped construction. Nevertheless, the city declined to revoke the Gundersons’ building permit and later notified the Gundersons that they could proceed with construction. The Gundersons completed the house. Thereafter, the Radachs sued the Gundersons and the city for injunctive relief. The Gundersons cross-claimed for indemnity against the city. The trial court found that the Gundersons had violated the zoning code and that the city had been negligent but declined to issue an injunction based on balancing the equities between the Radachs and the Gundersons only. The court found that the Gundersons were “completely innocent” of wrongdoing and that the Radachs were not substantially injured. The Radachs appealed.