McKennan McMansion Battle Goes to Court; Sioux Falls Can’t Shut Down Neighbors’ Fireplace

The McDowell–Sapienza McKennan Park McMansion melee is going to court. The McDowells, who were there first, have been complaining about their new neighbors the Sapienzas, who took out an 1,811-square-feet house that folks said didn’t fit the historic character of Sioux Falls’ nicest old neighborhood and started building a 45-foot-tall, 5,000-square-foot house that blocks the McDowells’ sunlight. The conflict heated up when the city shut down the McDowell’s fireplace:

…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.

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 [Jill Callison, “City Says It’s Caught in Middle of ‘McMansion’ Lawsuit,” that Sioux Falls paper, 2015.05.15].

The McDowells, who were there first, are thus suing the city for issuing the Sapienzas a building permit for a house that “violated zoning restrictions and adversely impacted the McDowell house.”

Sioux Falls city attorney David Pfeifle utters this nonsense:

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 [Callison, 2015.05.15].

The meaningful discussion should have taken place between the city and the Sapienzas before the city issued its permit. The city should have recognized that the Sapienzas were planning to build a house that would put the McDowells, who were there first, in violation of code. I’m all about property rights, but you don’t get to do something with your property that puts my use of my property in violation of existing code. The City of Sioux Falls has essentially taken the McDowells’ fireplace for the private gain of the Sapienzas (wow! it’s just like the Keystone pipelines! or us and the Indians!). The City of Sioux Falls should give back the McDowells’ property rights and stop the Sapienzas’ construction until the Sapienzas can bring their project into compliance with code without negatively impacting their new neighbors, the folks who were there first.


27 Responses to McKennan McMansion Battle Goes to Court; Sioux Falls Can’t Shut Down Neighbors’ Fireplace

  1. “Sioux Falls city attorney Brad Preifle”

    Not sure where you pulled that name from, but the city attorney’s name is David Pfeifle (pronounced Fife-Lee).

    As to the case, there is at least one point which needs to be determined. Current Sioux Falls code only allows a maximum height of 35 feet for a residence (unless a variance is granted which in this case it has not been). Per the surveyor/engineer hired by the McDowells, the Sapienzas home has a maximum height of 45 feet… so that would put it far taller than legally allowed. If this is confirmed, they will have little choice but to tear off the roof structure and start again – and that will be done at considerable costs to them and/or the builder. That part seems straightforward and should be easy enough to prove either way.

    The second issue is with the fireplace. Logically, it would seem the city erred by allowing the Sapienzas to build within 10 feet of the chimney because the McDowells clearly were there for decades prior. However, law does not always mirror logic, and I’m not sure there is any law or ordinance which would prevent someone from building on their property in a manner which may negativly influence their neighbor. That will be something the courts need to determine.

    I do however believe the Sapienzas could have taken steps to prevent this nonsense had they spent more than 10 minutes discussing their plans with the neighbor. I realize they wanted a massive home (the one under construction will be approximately 5,000 sq ft), but they could have moved the home over towards the center of the lot and used a design where the access to the backyard garage was under a portion of the home (a sort of porte-cochère).

    Also, we should note that South Dakota as well as Sioux Falls lack any form of “right to light” laws, so the Sapienzas could have blocked the view from 100% of the McDowell’s south side windows and there isn’t a thing they could have done about it. I know they aren’t happy about that issue, but legally speaking they have no right to dictate to another homeowner what he or she does in this regard.

  2. The Sapienza’s are the posterchild for everything you should not do when building in an historic neighborhood. The photo in the Argus Leader says it all for me. How rude and arrogant to think that building that close, laws aside, would not cause any issues.

  3. (Sorry about that name, Craig! It was right in front of me in the article, and I totally botched it. I have fixed it above. The error proves one should not practice journalism at the breakfast table while helping find state capitals.)

  4. On the meat and potatoes: I would be curious to see if there is an explicit statute that lays out the first-come, first-served logic I give above. But I would think there’s be some basic legal principle that I cannot take an action that causes another person to suddenly be in violation of the law.

    To invoke an old Constitutional saw, my right to swing my fist ends at your nose. But if you are standing in your yard happily spinning around with your fist out, I can’t dash into your circle, put my nose in the way of your fist, and then have you thrown in jail for assault.

  5. Here’s a solution I just throw out there for discussion. Instead of a 2 story the Sapienza’s may win some friends by modifying their plan to a story and a half, which would lower the height of the roof and bring the design more in line with that of the McDowells’ house and the neighborhood. It would lower the square feet a bit, but the house would still be big. That wouldn’t necessarily solve the McDowells’ fireplace issue, but the gesture of goodwill might prompt the McDowells to install a natural gas insert in their fireplace.

  6. Little late for that Rorschach – the house is already fully framed, has a roof, windows – rough electrical and plumbing and more. I haven’t been by it in several weeks, but by this point they may even have interior finishes going in.

    The only way that house gets modified at this point is if the Sapienzas lose a lawsuit. I sincerely doubt they would spend tens of thousands of dollars just to be a good neighbor. That being said, I’m not so sure they won’t have to spend some of that money anyway, because it sure seems as if they house is over the regulation height. Hard to judge scale based upon photos, but in person when the height is compared against a person or standard height entry door it surely seems as if it is above what is allowed.

    Your idea to modify the plan would have been the proper course of action before construction began however. I still find it amazing that nobody bothered to suggest perhaps this plan on this lot was a bad idea. Architects, surveyors, inspectors, employees from the building services department, the historical board, the builder, and the owners… not a single one of them questioned whether this was a great idea?

  7. Just The Facts Please

    What is the site for the ordinance? Does someone have a copy of it to post? We need to see that before we believe what the McDowells’ attorney phrases in the paper.
    Rude and arrogant??? are you a relative.
    The house is farther away from the LOT LINE than the 5 foot requirement. The Sapienzas did attempt to discuss their building plans with the McDowells and were willing to meet many times.
    Looks like the city may be at fault here and if so they should pay the McDowells to increase the height of the chimney.

  8. Daniel Buresh

    The city is going to be on the hook as they approved the blueprints. The new house is 5 ft from the property line per codes. The old home is only 2 ft from the property line per earlier standards . They are only going to be able to get the new builders on the height, and if they do, they will go after the city for approving it and the taxpayers are going to be paying for that. Your anger should be directed towards the mayor and the historical committee who approved the home, not on the couple who had their plans approved before building.

  9. Daniel,

    Per prior reports, the plans indicated the maximum height of the home would be 35 feet so that is what the city approved. Of course the media may have that incorrect and perhaps the city failed to notice the maximum height exceeded their limits – in which case you’re correct.

    However if the plans stated that the maximum height would be 35 feet, and the actual height is around 45 feet, then things get more difficult. If that is the case (and I cannot state for certainty what the actual height is at this point), then it would seem the builder and the city may share responsibility. In that case the builder obviously did not follow the approved plans, and secondly the framing inspector failed to note the error. Thus if the framing inspection passed, then one could argue the city was complicit in the building code violation.

    Also, the mayor had nothing to do with this. The mayor does not review nor approve plans and his involvement only began after the McDowell’s complained – but he doesn’t have the power to single handedly approve or reject plans as that duty is outside of his control.

  10. Daniel Buresh

    Either the leader is responsible for his subordinates or he is not. I see that switching way too often on this site depending on how it suits their needs. I’d like to see these prior reports, because what I have read is that it was all in the plans. The city screwed the pooch from what I have seen/read.

  11. Daniel, what switch? I’m all for holding the city and the mayor accountable. If taxpayers end up paying for anyone’s renovations or lost property use/value, city officials’ heads should roll.

  12. Daniel Buresh

    That’s commendable Cory, but as stated above, not all would agree. I honestly don’t think the mayor had much to do with it at all, but he still represents it. I was just trying to see what people would say to that comment. I personally don’t blame him, unless he stands behind them. Remove those who screwed up and get on with life. With so many employees, you can expect some to screw up and how you react is how you should be judged.

  13. I would have the new house bring the architect back to the site, remove the roof and have the house redesigned to Italianate style. Look Maaaaa, no gables.

  14. Richard F. Schriever

    “I’m not sure there is any law or ordinance which would prevent someone from building on their property in a manner which may negativly influence their neighbor.”

    FYI Craig – preventing building having a negative impact on one’s neighbor is the ENTIRE basis for zoning ordinances. That is exactly WHY zoning ordinances even EVER came into existence, and the historical case-law that validates them all is quite clear on that issue.

  15. Ah, Daniel, quel provocateur! Q;-)

    Actually, Daniel, I appreciate your keeping tabs on us. We can all use the challenge.

    Recall that Mayor Huether has professed cluelessness about his own zoning ordinances and the operations of the Board of Historic Preservation that he appoints. He’s intervened insofar as to use the McDowell–Sapienza controversy as a photo op—er, learning opportunity: http://dakotafreepress.com/2015/04/03/kelo-offers-content-free-report-on-mayor-huethers-zoning-learning-experience/

  16. Donald Pay

    I don’t understand why the original house wasn’t considered historic in this district. What I recall about this area from my childhood is that there was very nice mix of housing for various incomes. That’s what made it historic and unique to me. You could have a doctor living next door to a meat packer. It was an example of “inclusionary zoning” decades before the term was invented. It seems building McMansions in the area would destroy the unique historic nature of the area.

  17. Daniel, “Either the leader is responsible for his subordinates or he is not.”

    Does that hold for Rounds and Daugaard re: EB-5 millions missing and one dead?

  18. Daniel Buresh

    Read a little further Jana and you have your answer. It was all about timing and lack of oversight. We can argue about the extent of oversight but it’s rather pointless because we will never know what was known and when in either case. I doubt we can even agree on what is a reasonable amount of oversight. In this case, some will think Mayor Mike is completely incompetent while others will believe he was not informed or even misled on the amount of due diligence his workers were doing.

    My position on EB-5 has always been the same. Bollen was merely in the right place at the right time and found himself getting a sweet deal. Benda straight up tried to commit fraud. I don’t believe Rounds stood to benefit anymore than being able to champion a successful beef plant. One could argue incompetence, but until I see some sort of ill-gotten gains, I don’t believe Rounds had ill intentions. I think it is Solyndra or Cash for Clunkers all over again. Midwestern politicians drool over ag ideas. Other states’ politicians drool over environmentally friendly ideas. Money buys votes no matter what side of the aisle you are on and sometimes that gets in the way of reality when it comes to promoting and executing a truly successful idea. I never have liked public investment in picking winners and losers in the private sector. I also don’t know a political party not guilty of doing it. Money buys votes, no matter what side of the aisle you are on and sometimes that gets in the way of reality.

  19. Testor15: “I would have the new house bring the architect back to the site, remove the roof and have the house redesigned to Italianate style”.

    If done properly yes that would be a nice solution, but all too often we have seen cases where someone takes a ranch or split-foyer home and tries to modify the design to have characteristics of the Italianate style and it ends up being a trainwreck of styles that doens’t fit in to any neighborhood muchless McKennan Park. This particular design was selected in part because of the appeal of their porches and the exterior space. Modifying that would likely remove what attracted the Sapienzas to it in the first place.

    A qualified architect may be able to make it work, but I suspect part of the reason the existing roof on that structure is so tall is because there is usable space up there (bonus rooms etc). If they are forced to change the roof design they would likely lose that space. However if the height is truly too tall then they will ned to make some sacrifices somewhere.

    @Richard – I see what you’re saying, but I wouldn’t agree it is quite that simple. For example we are both very familiar with the Walmart going in at 85th and Minnesota, and zoning clearly allows that to occur. Yet it does seem logical that it will have a negative impact upon a handful of homes directly across 85th whether that be destorying the view, increased traffic, potential of lower property values etc. Now I’m the first to agree that Walmart has the right to build there and the homeowners failed to perform their due dilligence, but the point remains that allowing Walmart most likely will have negative ramifications to those homeowners.

    So it isn’t always so easy to determine what is allowable. The McDowells have complained about a lack of view or natural light from their Southern windows, and although you can argue that is a negative impact to them there is currently no zoning law or ordinance which would protect them in that regard. There is no right to light law in SD nor do we have any protected view law.

    From what I’ve been able to determine this case will really boil down to two facts. First, how tall is the new home, and second – is there any law or zoning ordinance which would require the new contruction to comply with the 10 foot setback for a fireplace? The first question is easy to detemrine… grab a tape measure and you’ll have the answer in 10 minutes. The second question is one I cannot answer without a detailed look at all the zoning rules and regulations, but I’m sure there are paralegals scouring over those facts at this very moment, so we will have an answer eventually.

    Those points aside, it seems the McDowell’s are trying to argue that the Sapienza home just doesn’t fit in the neighborhood and they simply don’t feel the size is appropriate. Those are valid opinions, but they have no impact upon what is allowed by law. The home doesn’t exceed limits for footprint size vs. size of the lot, it doens’t violate setback requirements (aside from the undetermined issue with the fireplace), and the historical board had no objections regarding the design (although from what I gather, their opinion is that of an advisory board and they have no direct control over what a property owner actually does).

    So at the end of the day many of the arguments the McDowells have made are just personal complaints that won’t have any impact. All I know is I’ll have my popcorn ready for when the verdict is read.

  20. Don Coyote

    @Cory “…Sioux Falls’ nicest old neighborhood”? Meh, Riverview Heights gets that award in myop. I’d even choose the Cathedral area or Old Orchard over McKennan especially with the traffic and helicopter flights around Avera Hospital.

    @Donal Pay, Google Maps still shows the bulldozed house at street level. Nice unassuming split level. Certainly a better fit than the McMansion currently being built. I wonder how that shared driveway is gonna work with the neighbors to the south?

    https://www.google.com/maps/@43.532451,-96.723814,3a,75y,255.99h,90t/data=!3m4!1e1!3m2!1shbsnvXhIpzKO7aN35VUA5A!2e0!6m1!1e1

  21. @Don – I’ve always been a fan of Old Orchard myself. It all boils down to what we personally put value in, and I enjoy the winding roads and undulating hills that make each lot unique in that area. There is also a great number of homes that back up to woodlands and greenspace, and a lot of privacy due to the mature trees and fantastic layout. I also enjoy the individuality… you cannot find two identical homes yet there is a nice mix of price ranges which means a mixture of blue collar and white collar, young and old, families and single homeowners. Plus it offers quick access to I-229, and some of our nicest parks. What’s not to love?

    I’ve never really understood the draw to McKennan Park aside from some of the individual historic homes. Sure the park is nice, but as far as parks go it isn’t even in the top ten within Sioux Falls. The lot sizes are small, the streets are narrow, and off-street parking is limited. So for someone to tear down a home and pick that area as their ideal location for new construction somewhat baffles me. To each their own I guess. I suppose for a doctor it or professor it would make a quick commute to Sanford, Avera, USF, or Augie, and if you like downtown it is quick and easy to get there. There are pros and cons in every neighborhood I suppose.

  22. Donald Pay

    Craig,

    McKennan Park is an old fashioned city park, and the area around the park represents a lot of the good of the old Sioux Falls that I knew growing up. Sure, it didn’t have the space of a Terrace Park, but it was a good neighborhood park.

    We lived six blocks away and tended to gravitate more to the vacant lots across the street, but McKennan Park would claim a lot of our time.

    I’m not sure what’s still there, but you had horse shoes for the old guys, and a large play area for the kids. Many folks learned how to play tennis there, and we spent many hours every winter at the ice rink. The band shell held concerts of all kinds. There were two ball diamonds, as I recall. OF course, there was what we called “the baby pool,” where we went to splash around to cool off. There was a nice garden there, too. Back in the day, the city sponsored recreation programs for kids, and Doug and Gloria Evens ran their tumbling program there. Lots of picnic tables for family picnics were spread throughout. And, to top it all off, the trees were just the right height, and your might see an oriole in them from time to time.

    It was a convenient place for just about everyone between Minnesota and Cliff Avenues and 18th and 33rd Streets, but the folks who used the park most lived within a couple blocks of the park. To me, the mix of housing and the proximity of the park meant folks who were well off and those who were not were experiencing life together. That is really what is historic about the place. That’s how life used to be lived then. Now we do our best to segregate ourselves by class. I’d hate to see that area of town gentrified.

  23. great discussion

  24. JTF asked for the city zoning ordinance. I got distracted and needed some quiet Saturday time to find and review it.

    Sioux Falls posts its Shape Places Zoning Ordinance and maps here:

    http://www.siouxfalls.org/planning-building/zoning/shape-places-zoning-ord.aspx

    This zoning map and my interpretation of the 1323 S. 2nd St. address tell me that the lot in question is on the oversize block across from the NW corner of McKennan Park, placing it in the RS (“Residential Suburban”) zone.

    The RS zoning rules (specifically 160.074) set the following dimensions for lot use:

    Required Front Yard: 25 feet*
    Required Side Yard: 5 feet.
    Required Rear Yard: 25 feet—15 feet on corner lots.
    Required Lot Frontage: 50 feet—65 feet on corner lots.
    Maximum Height: 35 feet.
    Minimum Lot Size: 5,000 square feet.
    Required Buffer Yard: 10 feet total (Level A) when adjacent to highways.
    *One required front yard may be 20 feet on corner lots.

    Those numbers appear to conform to everything discussed so far.

    160.712 allows the zoning director to “suspend or revoke a permit issued under the provisions of this chapter whenever the permit is issued in error or on the basis of incorrect information supplied, or in violation of any ordinance or regulation of any of the provisions of this chapter.” If the city issued the permit in error, it can stop construction.

  25. It looks like the new home is within all of the covenants and codes. However it seems that the old home is out of regulation.

    I sure would hate to have Barb as a neighbor!!

  26. My heart goes out to the McDowells. I grew up in SF,now live out-of-state, but have been following this story since friends told me about it. We come home for holidays and always do the ‘let’s drive around to see the old home town’ bit. I love the McKennan area and I remember the McDowell place standing out for being exceptionally lovely, modest in scale and aesthetically perfect, certainly my cup of tea. The photos I’ve seen of the new build leave me astounded, though I’m old enough I shouldn’t be. How self-centered people can be! Good grief, even if one can legally do something…..one ought to ask “Is this the right thing to do? Is this considerate of my neighbor, the neighborhood?” The new build might be lovely on a few acres, but it is absolutely hideous wedged-in as it is. I read that the new homeowner wants to be (not a quote) a good neighbor, invite people to their porch for lemonade. I read that and sat there thinking ‘Sure, buddy. You’re Mr. Good neighbor, building a monstrosity without one whit of concern how it would affect the people right next to you. It’s boils down to simple decency, thinking of others. Again, my heart goes out to the McDowells and I hope they prevail.

  27. Team McDowell

    Happy to Announce justice still prevails in Sioux Falls. The owners of house beside the Sapiensa McMansion
    WON their legal battle against Josh Sapienza the husband of Sanford Hospital Pediatric Surgeon Sara Sapienza.
    Wooohoo! “Mr Gorbachov tear that wall down!”