## Facts

- Ole and Barbara Gunderson owned an ocean-front lot in the City of Ocean Shores and hired contractor David Bickmore to build a house.
- The City’s zoning code required a setback from the ocean-front property line.
- Bickmore mistakenly located the house approximately 10 feet closer to the ocean-front property line than the code allowed.
- Eugene and Adriana Radach, owners of property two lots away, complained to the City early during construction; the City took no effective action, and the house was completed.
- The Radachs sued the Gundersons and the City seeking injunctive relief to enforce the zoning setback and require relocation of the structure.
- The Gundersons cross-claimed for indemnity against the City and Bickmore; the claim against Bickmore ended by settlement.
- The trial court found a setback violation and City negligence, found the Gundersons “completely innocent,” found no substantial injury to the Radachs, held the City owed no duty to the Radachs, and denied injunctive or other relief after balancing equities only between the Radachs and Gundersons.

## Issues

1. Whether sovereign (governmental) immunity bars liability for a city’s ministerial acts in permitting, inspection, and zoning enforcement.
2. Whether the public duty doctrine bars recovery when a governmental entity’s conduct breaches a duty owed to identifiable individuals rather than the public at large.
3. Whether injunctive relief is appropriate to remedy a continuing zoning setback violation without proof of substantial monetary loss.
4. Whether a court, when balancing equities on injunctive relief, must consider the conduct of a negligent governmental entity that would be an indemnitor to an innocent party.
5. Whether equitable indemnity may shift the cost of complying with an injunction from an innocent party to a negligent governmental entity.

## Decision

- The Court of Appeals reversed the denial of relief and directed issuance of an injunction requiring the house to be relocated to comply with the setback.
- The court held the City’s relevant conduct was ministerial, so sovereign immunity did not apply.
- The court held the public duty doctrine did not bar liability where the City’s actions and omissions created a duty to identifiable individuals.
- The court held an injunction was proper for a continuing encroachment/zoning violation without requiring proof of financial loss.
- The court held the City must indemnify the “completely innocent” homeowners for the costs of complying with the injunction.

## Legal Principles

- Sovereign immunity does not shield a governmental entity from liability arising from negligent ministerial acts.
- The public duty doctrine does not bar recovery when the government breaches a duty owed to an individual (including where a special relationship or individualized undertaking exists), rather than to the public generally.
- Injunctive relief is an appropriate remedy for continuing encroachments on property interests; proof of monetary damages is not required.
- Injunctive relief may be used to enforce zoning regulations where the violation results in a public injury.
- In equitable balancing, a court may consider a governmental entity’s conduct and should consider the conduct of a third party positioned as an indemnitor to the party whose actions caused the injury.
- Equitable indemnity is available even when the underlying remedy imposed on the indemnitee is equitable (such as compliance with an injunction) rather than a legal damages award.

## Conclusion

The appellate court required enforcement of the ocean-front setback through an injunction mandating relocation of the nonconforming house and allocated the financial burden to the negligent City through equitable indemnity, rejecting immunity and public-duty defenses and clarifying that zoning-related injunctions do not depend on proof of monetary loss.


Radach v. Gunderson, 39 Wash. App. 392, 695 P.2d 128 (Wash. Ct. App. 1985)