Why is the City of Sioux Falls legal team trying to lurk in secrecy after several building and zoning missteps?

Of course we have all been reading and hearing about the monstrosity of a home being built in McKennan Park;

Both sides moved for partial summary judgment, leaving the remaining issues for trial.

Neither side got their wish. Pekas said that the issue is one for a full trial.

“There are some questions of fact that need to be discussed,” Pekas said.

Motions for summary judgment are meant to be viewed “in the light most favorable to the non-moving party,” Pekas explained, and then only work when “no genuine issues of fact” are in dispute.

The sides have differing views on the legality of the building permit and the interaction of zoning ordinances and fire codes, Pekas said, so a summary judgment isn’t appropriate.

To the McDowell’s attorneys, the chimney question was “black and white.” The city’s Shape Places zoning code allows homes to be within five feet of one another. Its fire codes disallow the use of fire places without a 10-foot setback.

When two codes are in conflict, lawyer Shannon Falon said, state law directs cities to use the more strict one.

“The legislature has said that when two codes conflict, you have to follow one and disregard the other,” Falon said.

So the city does what it does best when it seems a looming F-Up over planning, zoning and permitting, it wants to cut and run;

Dick Travis, who represents the Sapienzas, said the fire code violation is an issue for the McDowells. The Sapienzas didn’t build a fireplace, he said, and the house complies with all the regulations it needs to.

“There is no duty for the Sapienzas to ensure that the McDowells’ chimney complies with code,” Travis said.

That argument strains logic, said Steve Johnson, another lawyer for the McDowells. If the city intends to enforce both fire and zoning codes, the failure to consider the chimney of a neighboring property is a clear oversight.

“There’s no question that the house is so close that the city came out and said ‘you can’t use your fireplace,” Johnson said.

Pekas said it was odd that city inspectors would have visited a dozen times, but that the chimney setback was never considered.

Even so, he said, there’s no proof that the Sapienzas were aware of the setback issue with the chimney, and the question of how to interpret the law on conflicting ordinances is open.

This kind of cut and run has been evident recently when the city attorney bluffed the media to get M.J. Dalsin to agree to a ‘closed’ settlement. Even though Dalsin didn’t install the siding in question on the Events Center. One asks, Why is there a closed settlement with something that is so public, over $180 million dollar investment by taxpayers and the city’s legal team wants to close the case behind closed doors. Did the city’s building services department sign off on something they should not have? How can there be a ‘settlement’? Good question.

Then there was the Walmart hearing recently over zoning issues with the Southside Walmart, and when a key elected official was summoned to testify in court they mysteriously had an important doctor’s appointment. In fact, so important, they had a press conference about it.

Why is the city’s legal team continuing to hide in the shadows? If they did nothing wrong, and if they are truly doing the public’s work, what is there to hide? Maybe some ‘inaccurate and adverse’ decisions were made by city employees? We will never know if we continue to let them lurk in dark corners when making legal decisions about our money.



5 comments ↓

#1 The D@ily Spin on 09.15.15 at 11:40 am

Shape Places is but an excuse to override city zoning and ordinances. Huether’s rule overrides Roberts Rules at council meetings. When government is taken away from the people, the only semblance of law and order is the kings rule.

#2 Blasphemo on 09.15.15 at 4:52 pm

The Defense attempted to argue that: at the time Defendants Joe and (Sanford MD) Sarah Sapeinza applied for a building permit – in spite of Plaintiff McDowell’s home being in place since 1924, with their 2′ side setback grandfathered in – it did not behoove the Defendant nor their licensed, professional General Contractor filing on their behalf to detail for the City the limited setback space between the existing 1924 home, its original fireplace chimney, the property line, and the proposed new home. The City’s defending attorney went on to argue that it would be unreasonable to expect the City “to bear the onerous burden of inspecting adjoining properties. . . “ prior to approving a new structure Building Permit, “nor is there any statute or ordinance requiring the City to do so.” However, Defendant’s attorney stated earlier in court that the Defendant’s new home construction in progress had undergone 12 City inspections and each inspection had passed all pertinent construction rules for the new home.

SO – there is no problem providing City Inspectors to make a dozen inspections after construction has started, but ONE site visit to a proposed all-new home site in a designated Historical Residential District – with numerous existing homes dating back to the late 19th and early 20th Centuries – would be an “onerous burden”??? Should an application for a new construction Building Permit in a Historical District not – by common sense – raise red flags for an additional set of criteria (ie existing setbacks) to be confirmed/detailed by the applicant prior to Permit Approval????? These are grown, educated men making these arguments in defense of the injustices perpetrated by the Sapienzas and City Hall. No Hollywood script writer could make this stuff up.

Attorney for the Plaintiffs Steve Johnson argued very credibly in his closing statements that “The Law is supposed to make sense.” For the Defense to argue – and the Court to in effect legitimize this Defense argument by denying the Plaintiff’s Request for Partial Summary Judgment – that the burden to ensure the continued peaceful enjoyment of their 1924 home rested with long-standing McKennan Park residents the McDowells. . . is the epitome of absurdity. All aspects of this case will now continued undecided through at least December 28, 2015, and likely far into 2016.

IMHO, for recently-elected Judge Pekas to deny Cross Motions For Summary Judgment is a safe way out for his young court to avoid potential criticism, review and/or appeal of his decision. It is a prime example of the delays and continuances that choke our court schedules, and make excessive (if not cost-prohibitive) the financial burden of pursuing righteous legal redress for financial and personal injury by the average homeowner. These delays perpetuate escalating billable hours for lawyers, at the expense of ALL taxpayers in a case like this.

If there is any “onerous burden” in all of this, it’s the nightmare the Plaintiffs are enduring at the hands of indifferent new neighbors, and a City Hall more concerned about covering their a_s than doing the right thing.

#3 John on 09.15.15 at 7:38 pm

Let’s see how County Commissioner Pekas sticks it to the city. I am not sure he has the experience or legal mind to rule in this case.

#4 Teatime on 09.15.15 at 10:57 pm

Facts in a case like this are best set out thoroughly in an orderly setting. Hence, the justification for a trial. It is not a trivial matter.

#5 Sammy on 09.17.15 at 1:08 pm

Definitely, not a trivial matter.

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