“Is there anyone else who would like to comment on the project?” said Walt Adams, chairperson of the local development board. Kitty Peterson’s loyal contingent stood up one by one to repeat the same opinions. It was now 4:30 p.m. Several Phillips representatives then approached the podium to address the concerns of the citizenry while simultaneously calming the nerves of the local planning board members. The board closed the public hearing and called for a vote. Eight members voted in favor of the project with two abstentions. The project was approved to proceed. On the way out, Kitty Peterson stopped John Phillips in the hallway and said, “You have not heard the last from us.”
A Measured Response
Phillips Brothers submitted the plans for the project and had a completion schedule of 24 months, assuming sales would be brisk. But the entire community sold out within several months. Every step of the way, however, Kitty Peterson’s group filed lawsuits and legal petitions in hopes of getting a stay on the project. All of these filings had to be addressed in court, but fortunately for Phillips Brothers no judge had found merit in any of the group’s cases. John Phillips had been involved with every single one of the frivolous legal attempts against the project. His firm had already spent close to $50,000 defending it. He wondered where Kitty Peterson’s group was getting the funds to keep pursuing legal action?
Finally the townhomes were completed and occupied with happy buyers. The development had passed all final inspections required by the county. Phillips was anticipating a quick close-out to the project when a new lawsuit was filed. This one was cause for concern. The suit named Montgomery County; Phillips Brothers; the title company; the banks involved; every architect, designer and engineer; and every homeowner as defendants. It stated that Phillips Brothers, et al, had exceeded the maximum height limitations for the townhomes. And because of this height excess, neighbors and adjacent property holders were being denied their “rightful and lawfully endorsed” property rights. Phillips Brothers was inundated with homeowner calls about the lawsuit. John Phillips was frustrated. “Here we go again” he thought. “I ve reached my point of no return. I m going to sue Kitty Peterson for my legal expenses and anguish.”
Bill Lazinski met him at the door of his office. “John, I have the results of the roofline heights. They do exceed the maximum, according to the county’s building standards and zoning limitations imposed by the public hearing.” “We thought there might be some small height issues that could be raised,” John said. The attorney nodded. “Mrs. Peterson’s group is asking for a summary judgment based upon the findings of the independent surveyor, which will require you to remove the roof of any multiplex found to be in violation, lower it, and rebuild it to an acceptable height.” “Do you know how much money something like that would cost?” voiced an exasperated John Phillips.
“But I’ve called in another attorney who specializes in building standards and requirements. Due to the small scale of the height violations, he thinks we can disprove the claim by thinking outside the box.”
With this attorney’s help, the defendants filed their own request for a summary judgment and dismissal. Their request stated that the definition of a determination of a building’s finished height has many variations and conditions. In the case of the townhome development, the grades of the subject property were changed during development and were now defined by the finished grades as determined by the internal roads and those of adjacent developed properties, roads, and buildings. Given those conditions, the rooflines of the townhome development were not in violation of the county building height requirement. The finished heights actually were 2 to 3 feet below what was permissible. The case was dismissed.
Phillips Brothers, et al, countersued Kitty Peterson s group to recover all of their legal costs. This was also settled by summary judgment in favor of Phillips.
Think about this story when you run into any subdivision design rules, building codes, standards, or regulations that may impact your projects. What parameters control height determination? Is it controlled by the initial property grade or the finished grade of a completed project? Do any of the rules or standards include factual definitions on their determinations and calculations? Your project probably will be well grounded as long as you know where the ground is.
