The Law

Parapet Protest by Ron Davis The owners of separate portions of a Minnesota shopping center have clashed over construction of a controversial building at the shared center site. The shopping center is Dunkirk Square, located in the Minneapolis suburban community of Maple Grove, and the dispute between the two center owners began over the design of a tire store intended for operation there. The building that would house the tire store is located on one portion of the shared property. And the controversy arose during construction of that building. That’s because plans call for a parapet and other ornamental additions on the building, to extend upward from the roof, and the two owners had previously agreed to building-height restrictions at the center. But they disagreed as to whether those additions violated that agreement. (The reason for those restrictions: so that the view from a nearby highway intersection would not be obstructed.) In particular, the two owners differed as to whether the parapet top would exceed the agreed-to height limit, thereby blocking the view of passersby. In fact, the restrictions limit the height for buildings at the center to 22 feet, though they permit “peaked roofs, entrance elements, and other architectural elements” that would reach a height of no more than 28 feet. The owners constructing the tire store building pointed out that its roof complied with the 22-foot-height limit and that only its “architectural elements” extend the building height to about 28 feet. In fact, measurements showed that the roof’s height is 20.5 feet on the low side and just under 22 feet on the high side. Moreover, they showed that the parapet adds 59 inches in height to the roof surface. If such figures are accurate, the building would still be within the range of the agreed-to limitations. The owner objecting to the building plans nevertheless sued, and a Minnesota court ordered construction to stop. The judge explained that such relief is appropriate to prevent the protesting owner from suffering significant harm if construction continues. But is the parapet really an extension of the wall as claimed by the challenger to the design? Or is the parapet merely an architectural element? More importantly, the tire-store building owner argued, the contractor for the project pointed out that complying with the suggested changes in the building construction would require employing 13 different subcontractors, cost $250,000, and take at least 12 weeks to complete. A Minnesota appellate court reversed the lower court judge, explaining that the protesting owner failed to establish either that the alleged height violations by the parapet, cornice, and coping have caused a real and substantial injury, or that the alleged injury would be remedied by the temporary relief that the district court granted. Added the judges, “On this record, we must conclude that the district court lacked a sufficient basis to grant the request for a temporary injunction.” (Inland Ryan, LLC v. Halle Properties, N.W.2d, 2012 WL 4774656 [Minn.App.] Decision: October 2012 Published: October 2012