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.