Final arguments made in McKennan Park house dispute

The neighbors of a new home in McKennan Park are asking a judge to force the owners to either tear it down or reduce its height by more than 8 feet and move it away from a shared property line.

In court documents filed this week, Pierce and Barbara McDowell argue that their neighbors, Joseph and Sarah Sapienza, should be required to meet height requirements for the McKennan Park Historic District. They also argue that the Sapienzas’ new home should be moved after it was built so close to the McDowells’ home that they lost the ability to use a wood-burning fireplace.

“Either our laws have substance and meaning, and egregious violations such as this must be brought into compliance, or our laws are toothless and empty, and those with sufficient wealth can simply construct whatever they wish without consequence and thumb their nose at the law, leaving the McDowells, those living in the McKennan Park Historic District, and society as a whole to shoulder the burdens for Sapienzas’ disregard for the law for years to come,” the McDowells’ court filing says.

The McDowells also sued the city of Sioux Falls for granting a building permit to the Sapienzas, even though the permit allowed the Sapienzas to build a home that allegedly violated historic district standards and building codes that regulate the distance between new homes and existing wood burning fireplaces.

“The city negligently abdicated its responsibility for code compliance and blindly issued a building permit to the Sapienzas, having no regard for code issues that might result for the neighboring historic homeowners,” their brief contends.

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Both the Sapienzas and the city also filed briefs with Judge John Pekas. Those briefs represent the final stage of a trial that took place this summer. A decision on the fate of the Sapienzas’ home now rests with Pekas.

The stakes are high. The McDowells filed suit in May 2015 after they learned that the stately new home – which their brief consistently calls a “mansion” – was being built so close to their home that city inspectors told the McDowells they could no longer use a wood burning fireplace. Even though the McDowells issued a cease-and-desist letter and then sued a few days later, the Sapienzas continued to build for several months until their home was finished.

The McDowells argue that the city and the Sapienzas created a nuisance when the Sapienza home exceeded height requirements for the McKennan Park Historic District. They also allege that Joshua Sapienza duped the city’s Board of Historic Preservation by showing the board renderings of a home that was then dramatically increased in size without the board’s approval.

But in their brief, the Sapienzas argue that their new home complied with city zoning ordinances, including setback and height requirements. The new home, they argue, wasn’t required to meet the requirements of the McKennan Park Historic District, because the home it replaced – a 1950s-era ranch – was not registered as a historic property.

“As such,” their brief says, “the Sapienzas did not owe the McDowells a duty to construct their home so that its height did not exceed a standard variance of 10 percent of the average height of the other homes within the neighborhood.”

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They also argue that a building code that restricts the distance of wood burning chimneys to adjacent buildings applies to the owner of the chimney and not an adjacent homeowner. “As such, the Sapienzas did not violate any duty owed to the McDowells when they built their home 6 feet from the north property line.”

For its part, the city of Sioux Falls denies that it owed a duty to the McDowells when officials issued the building permit to the Sapienzas. The city contends that the building plans submitted by the Sapienzas “fully complied with the applicable building codes and zoning ordinances, including the minimum height and setback requirements.” The McDowells, however, contend the city failed to enforce more restrictive historic building standards related to maximum height requirements.

The city also argues that it was not foreseeable that harm would come to the McDowells when it issued the building permit.

“Plaintiffs failed to establish that the city had actual knowledge of the height and location of the plaintiffs’ chimney in relation to the Sapienza property at the time it issued the building permit to the Sapienzas,” the city’s brief says. “Nor did the plaintiffs demonstrate that the city ‘must have known’ that the issuance of the Sapienzas’ building permit would lead to the plaintiffs having a potential violation of the building code on the plaintiffs’ adjoining property.”

Ultimately, the McDowells argue, if the Sapienzas are forced to alter or tear down their home, they have claims against their builder, designer and the city for not ensuring the home met appropriate building standards.

“The McDowell home, chimney and all, was present long before the Sapienzas started construction,” their brief concludes. “It was the Sapienzas who have a duty to build their home in compliance with applicable laws and regulations. They failed utterly in that regard.”

The Sapienzas acknowledge that they relied on their builder, designer and the city, which is what any reasonable person would have done. They also argue that in balancing harm, the prospect of tearing down or remodeling their home vastly outweighs the harms suffered by the McDowells.

“The McDowells’ request for injunctive relief would require the Sapienzas to incur hundreds of the (sic) thousands in additional construction costs. Such an outcome is not reasonable when the McDowells could continue to enjoy their fireplace by converting it from wood burning to gas at a substantially lower cost.”