PIERCE MCDOWELL and BARBARA MCDOWELL, Plaintiffs and Appellees,
JOSEPH SAPIENZA and SARAH JONES SAPIENZA, M.D., Defendants and Appellants, and CITY OF SIOUX FALLS, Defendant and Appellee.
OCTOBER 3, 2017
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOHN PEKAS Judge
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, P.C.
Sioux Falls, South Dakota Attorneys for defendants and
WILLIAM C. GARRY MELISSA R. JELEN of Cadwell, Sanford,
Deibert & Garry, LLP Attorneys for defendant and Sioux
Falls, South Dakota appellee City of Sioux Falls
J. JACKLEY Attorney General PAUL S. SWEDLUND for Amicus
Curiae S.D. Assistant Attorney General State Historical
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.
and Procedural History
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
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.
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.
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.
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.
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'
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.
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.
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.
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.
Sapienzas appeal, raising a number of issues that we restate
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
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 ...