This is beginning to become so boring and prevalent, I may just need to take a nap. Wait! That’s what the building services department do all day, then their boss knocks off at 3:55 PM on Fridays to have a nice micro brew.
City Attorney Loop-Hole David Fiddle-Faddle, of course clears it all up for us;
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.
Better get some antacids. Caught in the middle? You are the ones to issue the permits, you are the governing body. You know that? Right? Dave? This isn’t about a ‘dispute’ this is about the city not doing their job correctly. Oh, and the irony of the health system that the doctor building the home works for . . . I ask, would Dr. Annette Bosworth be allowed to build a home that didn’t follow code?
I drove by these properties yesterday with my teenage daughter to get a close up view. Oh my word – we were amazed. If I were the Pierce’s – I would have flipped out long before this. Completely ridiculous!
I’m assuming you’re talking about the palace filling the lot on the west side of McKennon Park. It’s no secret I took the city to state supreme court regarding zoning ordinances and constitutional due process. I won, every point. I asked no monetary award but should have asked state supervised city restructuring. Yes, it’s within the law. There’s been half a dozen similar cases (most worse than mine) since then. I’ll not state much here bease I may be called as a witness. I’d visit with the plaintiff but the city makes everyone their enemy making me not welcome. For the record, my involvement is always uncompensated. I’ll deliver findings of fact and conclusions of law. There’s now a Cadre of lawyers who will take cases against the city. Tere’s a damaging case history with a guaranteed win because city ordinances are unconstitutional.
The Plantiff’s house is two feet from the lot line (old code) and the Defendant’s is five feet from the lot line (new code). So who is to blame that McDowell’s can’t use their wood fireplace? Buy a gas-conversion unit.
This is an example of where our fine city leaders didn’t think things completely through. Yes, the old house was built to existing code, and the new house is being built to current code. Given that the lot line distance changed from 2 to 5, there should have been an extra line written into the ordinance that all homes need to be a certain distance from each other. This situation would not have happened if that little bit of thought been put into it.
I’m backing the McDowells. The city needs to be called out for their errors. At least the Historic Preservation Board appears to be having second thoughts.
MMM — The builder, new house owners, and city are to blame for the McDowells not being able to use their fireplace. The house isn’t done. Not too late to make some modifications. Probably pretty expensive, but boo-hoo.
McDowell’s house is grandfathered, all new construction most not interfere with their lives or full property use. It doesn’t matter if codes changed. The rights to their fireplace precede the new house. It means the new house must be moved, torn down, narrowed or the will have to but McDowell’s house to enforce modifications.
A distance of 10 feet is required between structures per fire code. Unless a fire wall (2 – 5/8 inch sheets of staggered sheetrock, fire taped) are applied. Would be interesting to see if the fire wall was required on the north side of the new home. Other than that…the City can’t just make up zoning ordinances on the fly. If a building permit is submitted at City Hall that meets all set back, height, total square foot lot coverage and other requirements in the zoning ordinance…the City can’t legally deny a permit. Yes…this sucks because the new structure doesn’t really fit the neighborhood…but their really isn’t anything the City can do about it if all requirements are met. If the height does truly exceed 35 feet…then the City could be held liable for allowing.
If Code Enforcer’s comment were true, neighbors could also sue because someone building on an adjacent lot deprives them of their view or their ability to get sunlight or grow the types of flowers they want on that side of the house.
Except none of those claims would be met with any kind of seriousness in a court of law.
What the Code Enforcer is suggesting is that the McDowells have either an implied easement or a negative easement on the neighboring property that allows them, or the city, to restrict its use.
As implied easements go, prior use doesn’t apply because, as I understand it, the properties were not originally owned by the same person. It’s also highly questionable as to whether the use of a fireplace unduly burdens the McDowells in terms of their ability to reasonably enjoy the property, but that’s beside the point since the first condition can’t be met.
As far as a negative easement is considered, the burden of proof would be on the plaintiff to establish its clear existence, but negative easements would almost certainly be recorded on the deed for the adjacent property.
The McDowells had a perfect opportunity for permanent remedy – they could’ve purchased the lot in question. According to an earlier story, they considered it and then opted not to. That was probably a poor decision.
I don’t blame them for seeking a legal remedy, but I’d be fascinated to see where the justification for recourse would be found.
That said, while land on the outskirts is cheap and abundant, McKennan Park is a highly desirable neighborhood and this is likely not the first teardown/rebuild that neighborhood will be seeing in the next handful of years. There are old neighborhoods all over the Twin Cities – Linden Hills in SW Mpls especially comes to mind – where $200-300k homes are routinely being purchased and bulldozed to make way for million-dollar properties that are pushed out as close to the lot line as is permissible. It’s just part of the gentrification process.
The city should buy the McDowell house for full appraised value before the adjoining buildout. It’s been done before except the property acquired (26th & I-229) was sold to a political insider for $1.
I think everyone is complicating this more then they need to.
1) The McDowell’s fireplace and house was there first, a new structure cannot be built to impede them.
2) The house is 45 feet high but only permitted for 35 feet.
I think the suit against the Sanford Pediatric Trauma Surgeon is pretty cut and dry. They breaking code by having to tall of a structure, and breaking code by forcing their neighbors to be against code.
I see McDowell gave MMM $1,000 in the 2014 election. I’m sure he’s having some second thoughts on that decision, too.
DL, the second is a possible issue that may have to be accommodated, absolutely. The first likely isn’t, unless the McDowells have an easement. They have no right to an eight-foot setback on an adjoining property they don’t own so they can use their fireplace any more than they have a right limit their new neighbor to a one-story house so they can have an unfettered view of the sky. Nobody is denying the McDowells reasonable use of their property. That they were grandfathered in doesn’t give them an implied easement on a neighboring parcel. Seriously, I’ll eat my shoe if you can direct me to an example of this as legal precedent.
Your whole “NIMBY rules, they were there first” mentality on land use, is consistent, I’ll give you that. It is, however, consistently incorrect from a legal standpoint. Like I said, I don’t blame the McDowells for trying. That’s their right. But I wouldn’t be holding my breath in anticipation of their success.