City says it's caught in middle of 'McMansion' lawsuit

Neighbors who live next to a house under construction in the historic McKennan Park district have filed a lawsuit against the dwelling's owners and the city of Sioux Falls.

In court documents, Pierce and Barbara McDowell charge that the new house is too close, too tall and negatively impacts use of their own property.

Not only does it block natural sunlight from reaching the McDowell house, the lawsuit charges, but the McDowells have been stopped from using their wood-burning fireplace because its chimney now is too close to the house being built by Joseph "Josh" Sapienza and Sarah Jones Sapienza.

It also is not tall enough, the McDowells were informed, since the chimney no longer extends two feet above the maximum height of the Sapienza residence.

Family sees historic district 'dream home' as nightmare

Steve Johnson, a lawyer representing the McDowells, said the city informed the couple last week that they could no longer use their fireplace because the houses are only seven feet apart. The city has an ordinance that prohibits the use of a fireplace if another home is within 10 feet, he said.

"That is obviously a safety issue at this juncture," Johnson said.

The city should never have issued a building permit, he added. The McDowells consulted with an architect and a surveyor who measured the height and footprint of the new home. Their analysis concluded that the city erred in allowing the new home.

The McDowells are asking for a permanent injunction to stop further construction at the Sapienza residence until it comes in compliance with the city's 2013 Shape Places Zoning Ordinance and it is relocated so the McDowell house no longer violates the city's Residential Code.

The lawsuit also seeks punitive and compensatory damages of an unspecified amount. The Sapienzas had a duty to construct their residence in a manner that would not cause the existing dwelling to violate the Residential Code, it states.

The city is negligent because it issued a building permit that permitted construction of a residence that violated zoning restrictions and adversely impacted the McDowell house, the lawsuit states.

The city was served with the law suit late Wednesday and was "still digesting" it Thursday afternoon, City Attorney David Pfeifle said. He described the issue as a dispute between neighbors with the city caught in the middle.

It was his hope, Pfeifle said, the suit would "spur more meaningful discussion" and the McDowells and Sapienzas would be able to resolve the issue.

The McDowells' restriction from using their existing fireplace was a fire code issue, Pfeifle said, not a city code issue.

The Sapienzas did not return a phone call requesting comment.

The McDowell house at 1321 S. Second Ave. was constructed in 1924; the family has lived there for 23 years. When it was built originally, the zoning ordinance required only a 2-foot setback off the property line. That changed over time, but the McDowell property, which is listed on the National Register of Historic Places, was grandfathered in.

When completed, the Sapienza house at 1323 S. Second Ave., just south of the McDowell residence, will be a two-story single-family house containing almost 5,000 square feet. The permitted offset from property now is five feet, putting seven feet between the two houses.

In a March interview, homeowner Barbara McDowell described the situation as similar to living next door to a motel.

The original house on the Sapienza property was multilevel with a total of 1,811 square feet on the main and upper levels. The lot measures 69 by 143 square feet. It had been built in the 1950s, and the Sioux Falls Board of Historic Preservation approved its removal from Second Avenue since it did not fit the neighborhood's historic character. At a recent board meeting, however, two members referred to the new house as "a McMansion."

Also in March, Planning Director Mike Cooper said the Sapienza house also went through the proper channels and violates no city codes. It falls under the 35-foot height restriction established in the Shape Places ordinance, he said.

The lawsuit, however, states that the Sapienza house is being constructed with a pitched roof containing multiple gables, and the highest gable is more than 45 feet tall.

"The Sapienzas are not entitled to special treatment by the city," the lawsuit states. "The hardship to be suffered by Sapienzas is minor when compared with the benefit to be gained by the McDowells, the owners of the historic homes in the McKennan Park area and the public as a whole."

Reporter Jonathan Ellis contributed to this story.