THE LEGAL LEVIATHAN THAT TOWERED OVER MCKENNAN PARK: HISTORIC PRESERVATION LAW IN MCDOWELL V. SAPIENZA.

• Author: Titze, Thad A.

1. INTRODUCTION

   Historic preservation and the law have been described as "surprising but comfortable bediellows[.]" (1) These bedfellows are surprising because they represent public goods on the one hand and private property on the other. (2) Yet, the two are a comfortable pair in part because historic preservation and the law have been bedfellows for over a century. (3) While private preservation efforts, though isolated, appeared early in American history. Congressional action throughout the 20th century codified historic preservation as both a national value and statutory scheme. (4) The funnel of historic preservation law begins with broad Congressional preservation initiatives and tapers to the narrow specifications found in local ordinances. (5) Historic preservation law interacts with other areas of the law including property, tax, administrative rules, and local politics. (6) South Dakota's body of historic preservation law emerged in the latter half of the 20th century and continues to evolve allowing the state and local governments to work in tandem to identify, preserve, and share historic resources for public benefit. (7)

   Historic districts are, by statutory definition, one form of historic resource. (8) Notable architectural features, influential people in a district's past, significant events that transpired within it, and a unified sense of place within a community are features defining the footprint of a historic district. (9) Laws and administrative processes protect historic districts from intrusive structures that would destroy or harm the area's historic integrity. (10)

   In McDowell v. Sapienza, (11) the South Dakota Supreme Court considered whether a new home in Sioux Falls' McKennan Park Historic District was such an intruder. (12) At issue was whether the standards for new construction within historic districts applied to the defendants' home, and. if so, whether the home violated those standards. (13) What began as a fire code violation for one neighbor's chimney ended in judicially-sanctioned demolition for the adjacent home identified as a "suburban sh*t stack" by its original architect. (14) At the center of the case lies historic preservation as both a value and as a body of federal, state, and municipal law. (15) Under South Dakota statutes, new construction in a historic district is subject to a series of administrative rules. (16) In McDowell, the outcome turned on changes made to South Dakota's historic preservation laws to better comply with the spirit of national historic preservation laws. (17) In the end, analysis and application of historic preservation laws operated as the only successful legal theory of those initially advanced by the plaintiffs. (18)

   This casenote delineates the legal underpinnings of McDowell and shows that the South Dakota Supreme Court's unanimous decision was correct and unambiguous as it relates to the state's historic preservation laws. (19) To arrive at that conclusion, this casenote begins with a brief synopsis of the facts and procedural background in McDowell. (20) Next, it describes the historical narrative and value of the McKennan Park Historic District. (21) This casenote then discusses the evolution of historic preservation law around the country and in South Dakota. (22) This casenote shows that a recent statutory change not only dramatically affected the outcome of McDowell, but also provided parity among federal, state and local historic preservation laws. (23) Finally, this casenote argues for clearer standards and diligence on the part of policy makers to best effectuate the aims of historic preservation. (24)

2. FACTS AND PROCEDURE

   1. THE NEIGHBORS

      The parties in McDowell v. Sapienza owned adjacent properties within the McKennan Park Historic District (the District) located in central Sioux Falls, South Dakota. (2)-" (1) Barbara and Pierce McDowell's home, built in 1924. is described as an "eclectic cottage" and is designated as a contributing structure lo the District. (26) In addition to its contribution to the District, the McDowell home itself is separately listed on the National Register of Historic Places as a landmark property. (27) At the time the lawsuit began, the McDowells had lived in their home for over twenty-five years. (28) They sought approval from the Sioux Falls Board of Historic Preservation (the Board) when adding to or modifying their home. (29) The McDowell home sat just two feet from the property's southern border in compliance with the two-foot setback ordinance in place at the time of construction in 1924. (30)

      Dr. Sarah Jones Sapienza and Joseph "Josh" Sapienza purchased the home immediately south of the McDowell home in 2013. (31) Built in 1954, the initial Sapienza home was considered an "intrusion" structure within the historic district because it did not contribute to the District's character and significance. (32) Nonetheless, the home was within the boundaries of the District, and therefore the Sapienzas needed approval from the Sioux Falls Board of Historic Preservation before they could raze the existing structure and proceed with construction of a new home. (33) The Sapienzas hired Bob Natz, an architect with an appreciation for historic preservation and knowledge of laws governing new construction in historic districts, to build their new home. (34) To inform his design, Natz, joined by Josh Sapienza, toured the District to observe notable historic characteristics of neighboring tomes. (35) Natz dratted preliminary renderings, but he and the Sapienzas had a disagreement, and Natz was subsequently fired. (36)

      In May 2014, Josh Sapienza appeared before the Board seeking approval to raze the existing home on his lot and build a new one. (37) Sapienza presented Natz's renderings to the Board and indicated that the new home would differ in some respects to the renderings he presented. (38) Sapienza also indicated to the Board that the new home's footprint would be larger than the structure to be razed. (39) Furthermore, Sapienza stated that the home he planned to build would result in a net gain of 2,000 square feet of green space on the property. (40) Based on Josh Sapicnza's representations of the project, the Board approved his plans. (41)

      Construction of the new Sapienza home began in October 2014, led by Sorum Construction. (42) Sorum had no experience building in historic districts. (43) As the footprint and contours of the project took shape, the McDowells became concerned about the structure's overall size as well as its lateral proximity and domineering height relative to their chimney. (44) The Sapienza home was constructed five feet from the shared property line with the McDowells. (45) The McDowells' chimney rises from their home's south wall; it stands two feet from the property line shared with the Sapienzas. (46) After construction commenced on the Sapienza home, a city employee inspected the McDowells' chimney.

      (47) As a result, the McDowells were cited with a violation of International Residential Code (IRC) section R1003.9 which requires the top of a chimney to be at least two feet above any adjacent structure that is within ten feet. (48) The McDowell chimney terminal sat ten feet below the peak of and six feet laterally from the Sapienza home. (49) In their lawsuit, the McDowells sought relief from the injunction placed on the use of their chimney as a result of the Sapienzas' construction. (50)

      Throughout construction of the Sapienza home, the McDowells sought to bring what they believed was an illegal structure to the attention of its owners and the city of Sioux Falls. (51) Barbara McDowell contacted the city on at least twelve occasions to voice her concern over the proximity and height of the Sapienza home. (52) The McDowells requested that the Sapienzas create more open space between the two homes and suggested that the Sapienzas build their driveway on the north side of the lot with the home positioned further south. (53) The Sapienzas, though, built their home as planned with the driveway to the south of the home. (54) Josh Sapienza specifically noted that creating more open space on the north side of his property would disrupt the "Feng Shui." (55) On May 8, 2015. the McDowells sent the Sapienzas a cease and desist letter to enjoin further construction. (56) Finally, the McDowells initiated their lawsuit against the Sapienzas on May 13, 2015, on counts of negligence and nuisance. (57) The McDowells sought injunctive relief or, in the alternative, damages under the counts against the Sapienzas. (58)

      Construction of the Sapienza home was completed in January 2016. (59) Once completed, the home stood 44.5 feet tall with seven feet between the two homes. (60) At trial, an expert architect identified eleven material changes made to the home that differed from the plans presented to the Board back in May 2014. (61) Seven of the nine members of the Board testified that if Josh Sapienza's representations to them had actually reflected the structure he subsequently built, they would not have voted to approve the project. (62) The Sapienzas never resubmitted plans to the Board showing material changes that appeared on the home they built. (63)

      In January 2016, Circuit Court Judge John Pekas held that the Sapienzas' home was an illegal structure in violation of historic standards and city setback requirements. (64) Natz, the architect who designed the initial rendering presented to the Board, testified at trial about concerns he had regarding the size of the home's footprint on the lot. (65) He stated that he was unable to account for the McDowell home in his plans because the Sapienzas would not provide him with a survey of the property. (66) In an email Natz sent to a colleague, he expressed concern that the home would not be built using historic materials befitting the neighborhood. (67)

      Judge Pekas ordered injunctive relief requiring the Sapienzas to bring their home...