McDowell v. Sapienza

• Court: South Dakota Supreme Court
• Writing for the Court: ZINTER, Justice
• Citation: McDowell v. Sapienza, 906 N.W.2d 399 (S.D. 2018)
• Decision Date: 03 January 2018
• Docket Number: 28239,28234,28252
• Parties: Pierce MCDOWELL and Barbara McDowell, Plaintiffs and Appellees, v. Joseph SAPIENZA and Sarah Jones Sapienza, M.D., Defendants and Appellants, and City of Sioux Falls, Defendant and Appellee.

906 N.W.2d 399

Pierce MCDOWELL and Barbara McDowell, Plaintiffs and Appellees,

v. Joseph SAPIENZA and Sarah Jones Sapienza, M.D., Defendants and Appellants,andCity of Sioux Falls, Defendant and Appellee.

28234

28239

28252

Supreme Court of South Dakota.

ARGUED OCTOBER 3, 2017

OPINION FILED January 3, 2018

REHEARING DENIED February 16, 2018

RONALD A. PARSONS, JR., STEVEN M. JOHNSON, SHANNON R. FALON of Johnson Janklow Abdallah Reiter & Parsons LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees McDowells.

RICHARD L. TRAVIS, ADAM R. HOIER of May & Johnson PC, Sioux Falls, South Dakota, Attorneys for defendants and appellants Sapienzas.

WILLIAM C. GARRY, MELISSA R. JELEN of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee City of Sioux Falls.

MARTY J. JACKLEY, Attorney General, PAUL S. SWEDLUND, Assistant Attorney General, for Amicus Curiae S.D. State Historical Society.

ZINTER, Justice

[¶ 1.] Property owners constructed a new home on property located within a historic district. Adjacent owners alleged the home violated state regulations on new construction in historic districts as well as a local ordinance governing chimneys. Adjacent owners sought a mandatory injunction requiring modification or reconstruction of the new home. Adjacent owners also sued the City of Sioux Falls, alleging negligence in issuing a building permit and failing to enforce the regulations. The circuit court granted the injunction, and it concluded that the City owed adjacent owners a duty to properly enforce building codes. We affirm the issuance of an injunction, reverse the duty conclusion, and remand.

Facts and Procedural History

[¶ 2.] The homes at issue are located in the McKennan Park Historic District of Sioux Falls (McKennan Park). McKennan Park is a historic property listed on the national register of historic places. According to its nomination form, McKennan Park "is significant in the areas of architecture, landscape architecture, community planning, and social/humanitarianism."

[¶ 3.] In 2014, Joseph and Dr. Sarah Sapienza purchased a house in McKennan Park that they intended to renovate. The house was designated an "intrusion" and "noncontributing property," and it was not listed on the state or national registers of historic places. Pierce and Barbara McDowell own a home on adjacent property. McDowells' home is designated as a "contributing" property due to its historical and architectural significance, and it is listed on the state and national registers.

[¶ 4.] As a result of complications not relevant to this case, Sapienzas' initial plans changed. They decided to raze the house and construct a new home. They hired Natz and Associates, an architectural firm with experience in historic districts, to design the new home.

[¶ 5.] Bob Natz prepared architectural renderings but was later terminated after a disagreement with Sapienzas. Although Sapienzas terminated Natz, Sapienzas submitted his renderings to the Sioux Falls Board of Historic Preservation for approval. The Board scheduled a hearing and Mr. Sapienza appeared. He disclosed that some changes would be made to Natz's plans. He also informed the Board that the new home would be larger than the previous structure. Based on the information provided, the Board approved the proposal.

[¶ 6.] Sapienzas hired Sorum Construction, a firm that was not experienced with construction in historic districts, to finish designing and building the home. Sorum obtained a building permit from the City of Sioux Falls. The submitted building plans indicated the home would comply with the maximum height and setback requirements under City ordinances. Construction began in October 2014.

[¶ 7.] As construction progressed, McDowells became increasingly concerned about the proximity and size of Sapienzas' home. Sapienzas sited their home five feet from the property line, which complied with the City setback ordinance. McDowells' home is located two feet from the same property line, the minimum setback requirement at the time their home was built in 1924. Thus, the two homes are only seven feet apart. Additionally, Sapienzas' home is 44.5 feet tall, which is substantially taller than McDowells' home.

[¶ 8.] In early May 2015, McDowells requested an inspection of their chimney for their wood-burning fireplace. The fire inspector informed them that they could no longer use their fireplace. The inspector noted that a City ordinance required chimneys to extend at least two feet above the highest point of any structure located within ten horizontal feet of the chimney. Because the eave of the newly constructed Sapienza home was approximately ten feet above and six feet south of the top of McDowells' chimney, McDowells' use of the chimney would violate the ordinance.

[¶ 9.] On May 8, 2015, four days after receiving the inspection report, McDowells' attorney sent Sapienzas a letter demanding they cease and desist construction or face legal action. The letter alleged Sapienzas' home violated height and setback regulations. Sapienzas did not stop construction; and on May 15, 2015, McDowells initiated this action. Sapienzas continued with construction until the home was completed in January 2016.

[¶ 10.] McDowells' suit against Sapienzas is based on theories of negligence and nuisance. McDowells allege that construction of Sapienzas' home violated the chimney ordinance, as well as ARSD 24:52:07:04, a state regulation governing new construction in historic districts. McDowells sought injunctive relief and in the alternative, damages. They also sued the City for negligence. They alleged the City was negligent in issuing the building permit and permitting Sapienzas to build a home that violated building regulations.

[¶ 11.] The circuit court bifurcated the issues and first considered McDowells' claim for injunctive relief. After a three-day trial, the court issued a lengthy memorandum decision indicating it would grant a mandatory injunction requiring Sapienzas to modify their home to comply with the State regulation for historic districts. Sapienzas were also required to modify their home so that McDowells could use their fireplace. The court concluded an injunction was appropriate because: (1) "Sapienzas brought the harm," (2) "the harm [was] irreparable and unable to be cured by monetary compensation," and (3) the hardship suffered by Sapienzas would not be disproportionate to the benefit gained by McDowells and McKennan Park as a whole. The court also rejected Sapienzas' defenses of laches and assumption of the risk. With respect to the City, the court concluded that the City owed a duty to McDowells to properly enforce the historic-district regulation and chimney ordinance. The court adopted its memorandum decision as its findings of fact and conclusions of law, and it entered a judgment granting the injunction.

[¶ 12.] Sapienzas appeal, raising a number of issues that we restate as follows:

1. Whether the chimney ordinance is a setback requirement that applies to Sapienzas' home.

2. Whether the State historical regulation for new construction within historic districts applies to Sapienzas' home.

3. Whether the circuit court abused its discretion in granting an injunction.

4. Whether the circuit court erred in denying Sapienzas' affirmative defenses of laches and assumption of the risk.

The City raises the following issues by notice of review:

5. Whether the City owed a duty to McDowells to properly enforce building regulations.

6. Whether the circuit court erred in failing to enter judgment in favor of the City.

McDowells raise the following issue by notice of review:

7. Whether the circuit erred in failing to enter judgment holding the City negligent.

Decision

Applicability of the Chimney Ordinance

[¶ 13.] The circuit court ruled that the City's chimney ordinance, § R1003.9 of the International Residential Code,¹ is a ten-foot setback requirement that prohibited siting a structure on Sapienzas' lot within ten feet of McDowells' chimney. The court acknowledged that Sapienzas' home did not violate the City's five-foot setback ordinance. But the court reasoned that the chimney regulation in § R1003.9 was also a setback requirement; and because the two regulations conflicted with respect to "setback requirements," the more stringent chimney regulation controlled. See SDCL 11-4-6 (regulating the priority of conflicting regulations).²

[¶ 14.] Sapienzas argue the circuit court erred in interpreting § R1003.9 as a setback requirement that applied to Sapienzas' home. We agree with Sapienzas. By its express terms, § R1003.9 regulates the height of chimneys on a structure, not the siting of structures on other properties. Although Sapienzas' new home may have caused McDowells' home to fall out of compliance, Sapienzas' home was not sited in violation of the chimney regulation. We reverse the circuit court's contrary legal conclusion.

Applicability of Historic-District Regulations

[¶ 15.] ARSD 24:52:07:04 is a historic-district regulation that establishes standards for "[n]ew construction or additions within a historic district." The regulations cover numerous standards including, among others, the design, height, width, and proportion of such new construction.

For the purpose of simplification, we only discuss the standard governing the height of new construction in historic districts under ARSD 24:52:07:04(2).³

[¶ 16.] Testimony at trial established that the average height of relevant historic buildings in McKennan Park was 32.84 feet; that under the regulation, new construction was therefore limited to 36.08 feet; and that the highest point of Sapienzas' home was 44.50 feet. The court ruled that Sapienzas' home violated the regulation because it was constructed more than eight feet higher than the maximum permitted height.

[¶ 17.] Sapienzas argue that ARSD 24:52:07:04 does not apply to their property. Their argument is understandably not based on the language of that...