Municipal Ordinance Found To Be Discretionary, Not Mandatory, Under California Tort Claims Act

In Sutherland v. City of Fort Bragg, (2000) 86 Cal.App.4th 13, the California Court of Appeal determined that a city ordinance providing for site and architectural review was “discretionary” in nature, thereby precluding a tort claim under the California Tort Claims Act.

(1) Did the enactment impose a mandatory, not discretionary, duty on the public entity? No. Even though the municipal ordinance uses the word "shall," the use of shall and like words will not alone support liability under the Tort Claims Act. Even where language appears mandatory, if significant discretion is required to carry out any duty imposed, that duty is not mandatory within the meaning of section 815.6. Analyzing the nature of the site and architectural review, the Court of Appeal determined that the ordinance gives the review committee great discretion to make subjective determinations about aesthetic requirements such as landscaping, building materials, colors, lighting, signing, etc. According to the Court, "the City’s site and architectural review committee exercises administrative powers that are general in scope, vague in formulation and advisory in function; powers that qualify, in a word, as discretionary."

(2) Did the enactment intend to protect against the kind of risk of injury suffered by Plaintiffs? No. It was not enough to show that the enactment conferred some incidental benefit on Plaintiffs. Therefore, although the site and review provisions may confer some incidental benefit on landowners by protecting access to light and air, the overriding purpose of the enactment is to provide an aesthetically and desirable environment – the committee is directed to consider how the building looks and is not directed to protect against the kind of injuries suffered by Plaintiffs.

(3) Was breach of the mandatory duty a proximate cause of the injury suffered? No. Because the role played by the committee is advisory and focuses on aesthetic values, it is highly unlikely that site and architectural review by the committee would have resulted in the relief Plaintiffs seek. The neighboring landowner complied with zoning laws in erecting his building.


Plaintiffs further argued that City had a duty to enforce a rule under its Uniform Fire Code, which requires every residential building to have at least two emergency exits. Plaintiffs argued that the newly erected building eliminated the second exit in Plaintiffs’ building. The Court of Appeal found that this provision was also discretionary because the fire code gives the fire chief considerable discretion in deciding how to enforce the fire code. In particular, correcting the code violation of having only one exit was up to Plaintiffs, not the fire chief.

Legal Alert Email Disclaimer

Legal Alerts are published by Kronick Moskovitz Tiedemann & Girard as a timely reporting service to alert clients and other friends of recent changes in case law, opinions or codes. This alert does not represent the legal opinion of the firm or any member of the firm on the issues described, and the information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorney with whom you normally consult.