City of Sioux Falls v. Strizheus

984 N.W.2d 119

CITY OF SIOUX FALLS, Plaintiff and Appellee,

v. Vitaliy STRIZHEUS and Nataliya Strizheus, Defendants and Appellants,andAll Other Interested Parties, Defendants.

#29907

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS OCTOBER 3, 2022

OPINION FILED December 28, 2022

EMILY MAURICE, BARRY SACKETT of Goosmann Law Firm, PLC, Sioux Falls, South Dakota, Attorneys for defendants and appellants.

WILLIAM C. GARRY, CLAIRE E. WILKA of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, RYAN J. SAGE of Office of the City Attorney, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.

JENSEN, Chief Justice

[¶1.] Vitaliy and Nataliya Strizheus began construction on a house in Sioux Falls in 2013. Before the house was completed, construction stalled and the City of Sioux Falls (City) sought to have the partially completed house demolished under the City ordinance (Ordinance). The circuit court granted summary judgment to the City and ordered the demolition of the house. The Strizheuses appeal. We affirm.

Facts and Procedural History

[¶2.] The Strizheuses purchased land at 6800 South Westfield Trail in Sioux Falls in 2013 with the intent to build a multi-million-dollar, single-family home on the property. A building permit was issued by the City on August 12, 2013, and the couple contracted with Creative Building Corporation (CBC) to start construction. The project was initially self-funded by the Strizheuses. Progress on the home stalled in 2015, when the house was partially completed, apparently due to a lack of finances and other family circumstances.

[¶3.] On August 31, 2016, the City found the house to be an unsafe structure as defined by section 108.1.1 of the International Property Maintenance Code (IPMC)¹ and unfit for human occupancy as defined by section 108.1.3 of the IPMC.² The City has adopted the entire IPMC through Sioux Falls City Ordinance (SFCO) § 150.095 subject to certain amendments, additions, and deletions which are set forth in SFCO § 150.096.³ The City issued a notice of demolition ordering the Strizheuses to begin demolition of the house pursuant to SFCO § 150.096.

[¶4.] SFCO § 150.096 provides:

The code official shall order the owner or owner's authorized agent of any premises upon which is located any structure, which in the code official's or owner's authorized agent judgment after review is so deteriorated or dilapidated or has become so out of repair as to be dangerous, unsafe, insanitary, or otherwise unfit for human habitation or occupancy, and such that it is unreasonable to repair the structure, to demolish and remove such structure; or if such structure is capable of being made safe by repairs, to repair and make safe and sanitary, or to board up and hold for future repair or to demolish and remove at the owner's option; or where there has been a cessation of normal construction of any structure for a period of more than 18 months, the code official shall order the owner or owner's authorized agent to demolish and remove such structure.⁴

The Strizheuses appealed the order for demolition to the Property Maintenance Board of Appeals (the Board), and the Board granted the Strizheuses an extension until December 1, 2016 to complete the exterior of the house.

[¶5.] The exterior of the house was not completed by the end of 2016, and there is no evidence of other construction on the home during this time. On September 22, 2017, the City issued an amended notice and order for demolition to the Strizheuses, finding the structure still in violation of the Ordinance, and that demolition was authorized under SFCO § 150.096. The order required the Strizheuses to complete demolition of the house by November 11, 2017. The Strizheuses did not appeal or otherwise challenge this order.

[¶6.] After the Strizheuses failed to commence demolition, the City filed a complaint in circuit court against the Strizheuses on December 10, 2018, seeking enforcement of the Ordinance.⁵ The complaint alleged that at least seven building permits had been issued for the property since the initial permit was issued in 2013 and each had been suspended or cancelled because of a lack of progress or request for inspection, with the latest permits expiring in 2018. The complaint sought an order from the court to demolish the house and restore the lot to grade.

[¶7.] The Strizheuses did not answer the complaint but took out another building permit. The City moved for a default judgment. The Strizheuses hired counsel shortly before the hearing on the motion for default judgment and requested additional time to answer the City's complaint. In addition, Vitaliy submitted an affidavit representing that CBC had once again begun work on the building and was expected to finish the exterior of the building by October 1, 2019. The circuit court denied the motion for default judgment and granted the Strizheuses additional time to answer.

[¶8.] More than two years later, the City filed a motion for summary judgment. Along with the motion, it filed a statement of undisputed material facts and several affidavits. Richard Warrington, the chief building official for the City, provided an affidavit which stated that the building permit taken out in 2019 had expired because of lack of progress and that no inspections had been requested. Warrington alleged the Strizheuses had made some "cosmetic repairs" in 2019, but there had been no progress toward completing construction at the property after the 2019 permit was issued. He further claimed that there had been no formal inspection on the property since May 15, 2015.

[¶9.] Troy Stallings of CBC provided an affidavit stating that his company had not performed any construction work on the property requiring inspection since 2015 and that there was currently no agreement in place between CBC and the Strizheuses to restart work on the property. CBC had also cancelled its insurance on the project because it was no longer an active construction project.

[¶10.] Nearly identical affidavits from three neighboring landowners were also submitted in support of the City's motion. The three affidavits included statements that said "[o]ver the past several years, there has been very little work done at the Westfield Home, and I do not believe that there has been much, if any, work completed on the Westfield Home during the past two years."

[¶11.] The Strizheuses failed to submit a response to the City's statement of undisputed material facts as required by SDCL 15-6-56(c), or any other written response to the motion for summary judgment. They did, however, take out a ninth building permit for the house.

[¶12.] A hearing on the motion for summary judgment was held on December 28, 2021. At the hearing and in its brief to the court, the City asserted that the demolition order was issued by the City because the Strizheuses had repeatedly failed to finish construction and there had been no "normal construction" on the property since 2015. The City contended that while the Strizheuses had taken out multiple building permits, they had failed to make any progress toward completion of the home. The City also claimed that the Strizheuses had recently purchased another home in Sioux Falls, which was evidence that they had abandoned the construction project and were instead putting their money toward other ventures.

[¶13.] Vitaliy appeared pro se and countered the City's case at the hearing with unsworn statements that he planned to complete the home in the near future but was having trouble obtaining the financing. Vitaliy stated that in 2018, he painted the exterior of the house and had garage doors and a front door installed. He also claimed that he hired another contractor and there was currently work being done on the roof of the house. Finally, Vitaliy stated that he expected the work on the outside of the house to be finished by the end of the summer and the house to be completed by 2023.

[¶14.] The circuit court orally granted summary judgment for the City, finding that the City had shown that normal construction had ceased for over eighteen months and the Strizheuses had provided no evidence to support their contrary position. Following the hearing, the circuit court entered an order and judgment granting the City's motion for summary judgment and allowing the City to "secure the services of outside parties deemed necessary to commence demolition of the structure(s) [on the property] and to restore the lot to grade[.]" The Strizheuses appeal the entry of summary judgment, arguing that the City failed to meet its burden to establish the absence of "normal construction" for a period of eighteen months.

Analysis

[¶15.] This Court has a well-established standard for considering a ruling granting summary judgment.

"We review a grant or denial of summary judgment de novo." Hamen v. Hamlin Cnty. , 2021 S.D. 7, ¶ 15, 955 N.W.2d 336, 343. "Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hanson v. Big Stone Therapies, Inc. , 2018 S.D. 60, ¶ 23, 916 N.W.2d 151, 158. "The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists." Saathoff v. Kuhlman , 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804.

Sheard v. Hattum , 2021 S.D. 55, ¶ 22, 965 N.W.2d 134, 141.

Prima Facie Case

[¶16.] The Strizheuses argue that the City failed to present a prima facie case on summary judgment to establish that it was entitled to judgment as a matter of law. They contend that the City failed to establish that there had not been any construction on the home for a period of at least eighteen months. Further, they assert that...