Manitou Springs residents once again find themselves up in arms and doing court battle with members of the McGee family.
Red Mountain Heights neighbors went to court last week in what they say is an attempt to force Manitou Springs' Planning Department to apply city zoning ordinances to a house being built in -- or rather atop -- their neighborhood by Manitou resident John McGee.
McGee is the son of Tom McGee who angered Manitou residents in the early 1990s by building a home on the summit of Iron Mountain in defiance of widespread criticism that he was blighting Manitou's scenic backdrop.
Town ire increased when the elder McGee secretly attempted to bulldoze a 3,800-foot driveway down the mountainside without a grading permit, and without the benefit of surveying, engineering or soils tests.
Now Manitou residents are at odds with McGee's son, John. The issue this time is a 2,180 square-foot house with an attached two-car garage that he's building as a commercial venture on a 5,100 square-foot lot at 1 Fairmont Ave., about a quarter mile up the hill from Manitou Springs Elementary.
Neighbors contend the house is too large for their modest, low-density neighborhood.
Complaining that McGee has violated the city zoning ordinance and that the city is refusing to enforce compliance, neighbors Dennis Schofield, Doug and Kim Powell, and Gordon and Ann Jeffries hired attorney Ken Nuss to press their case against the city in court.
(The Jeffries have since removed themselves as plaintiffs, saying they cannot afford the legal costs.)
Last week, a restraining order against McGee was obtained from 4th Judicial District Judge Kirk Samelson, who scheduled a hearing for Sept. 15.
The neighbors, however, are frustrated. "It's a shame that taxpayers have to spend their own time and money to force Manitou Springs to uphold its laws," said neighbor Shauna Schofield.
"This is getting more expensive by the day," added neighbor Kim Powell. "We've already put $5,000 into fighting this, and we have to put down another $10,000 today as a restraining order bond."
McGee's property, which he purchased on July 7, is zoned low-density residential, and Manitou's zoning ordinance (passed in 1975) requires a minimum lot size of 9,000 square feet for construction in areas so zoned. McGee's lot, however, is only 5,100 square feet.
The neighbors asked city planner Todd Liming, zoning officer Michelle Anthony, city manager Dan Wecks and city attorney Alan Jensen to require McGee to apply for a variance. That, they say, would provide an opportunity to reduce the project's square-footage to something more appropriate to the neighborhood.
"Mr. McGee has every right to make reasonable use of his property," Nuss explained, "but 'reasonable use' in this case means something that would impact the neighborhood less massively."
Nuss and his clients say that Liming told them the city approves building permits for properties less than 9,000 square feet that were platted prior to the 1975 Zoning Ordinance so long as setback requirements are met. (The McGee property was platted in the 1890s.)
McGee's site plan got a thumbs-up because it meets the requirements of a 25-foot setback in front and back, and a 10-foot setback on the sides.
Liming failed to respond to repeated requests for an interview about this position, but Nuss insists that there is nothing in the zoning ordinance to give Liming authority to waive the minimum lot-size requirement without a variance.
Nuss argues that section IV.3 of the ordinance specifically prohibits such action. "Except ... by variance granted," the ordinance reads, "no building structure ... shall be occupied, built, used [or] erected ... unless in conformity with this Ordinance."
"The city seems to be doing everything it can to avoid enforcing its zoning ordinance," said Nuss.
Judge Samelson apparently agrees with Nuss. He signed a Sept. 6 restraining order stating that "irreparable harm will result" to the neighbors if McGee is allowed to continue construction "without first obtaining a lot area variance ... from the City of Manitou Springs."
City manager Dan Wecks insists, however, that the 9,000 square-foot minimum doesn't apply to McGee's lot.
"We've never kept people from building a house on their property just because it doesn't meet the 9,000 square-foot minimum," he said. "That would be 'takings,' and we can't do that."
(Takings is a legal concept involving denial of property rights without just compensation.)
Insisting that the zoning ordinance supports McGee's project, Wecks cited section VI of that text: "Whenever planning permission has been granted for a single family residential lot ... any subsequent purchasers may develop a single family dwelling without obtaining planning permission, or further recourse to the Planning Commission or City Council, unless a variance is requested."
"Since no variance was requested," Wecks said, "[Mr. McGee] is free to build as his site plan dictates."
Construction at the site, meanwhile, has been a complicated muddle.
According to Leslie Gruen, communications spokesperson for Regional Building, McGee failed an inspection on Aug. 17 because his site plan papers were not properly validated.
"In effect," said Gruen, "failing that inspection is tantamount to a stop work order. Mr. McGee should not have resumed work until he passed. I don't know what he'd be doing on that site until then."
McGee passed inspection on his second try on Sept. 6, but he continued meanwhile to dig out the foundation and put up the wooden forms (footers) needed to pour the concrete.
"He was in such a rush to build that he didn't bother to survey his property lines," said Nuss. "His site plan showed a 10-foot clearance on each side, but his west footers encroached Mica Avenue. If we hadn't pressed the city to require a survey as dictated by the ordinance," said Nuss, "that house would have been built encroaching Mica Avenue."
In response to the survey finding, the city asked Regional Building to issue a stop work order on Aug. 29 and ordered McGee to pull up the footers.
However, Manitou rescinded the order late on the afternoon of Friday, Sept. 1, which enabled McGee to work the three-day Labor Day weekend while the courts, Manitou city government and El Paso County government were closed.
After getting his restraining order against McGee late on the afternoon of Sept. 6, Nuss had difficulty getting it served. Nuss' wife attempted to serve McGee at his Manitou home that evening, but McGee refused to open his door to her.
A second attempt to serve McGee was made at his place of employment the next day -- he is principal of Holy Trinity Elementary -- but all doors were locked and security guards refused the server entrance.
A third attempt was made later that afternoon by neighbor Shauna Schofield at the Fairmont Avenue site. When she approached McGee, he maintained a ten-foot distance between them while warning her that she was trespassing and, reportedly, loudly ordering her off his property. Schofield laid the papers on the ground and said "John McGee, you have been served," whereupon McGee ran to his pickup and drove off, leaving the papers where they lay.
A construction crew was back at work on the site early the next morning. Nuss said he may ask for a contempt of court ruling against McGee at the Sept. 15 hearing.
City planner Todd Liming and zoning officer Michelle Anthony failed to respond to repeated messages requesting interviews to obtain their views on the situation. City attorney Alan Jensen said he couldn't comment on the matter because it involves pending litigation.
McGee called the Independent to say that we had enough information "from everyone else," and that he dosen't want to be called at work or bothered at home.