Slap Stick

Local residents sued by developer over their objections to new building construction.

Residents of the west University area charge they have been slapped with a SLAPP (Strategic Lawsuit Against Public Participation) suit over their protests of the "stick and stucco" building materials to be used in a proposed new development within their historic neighborhood. They call the legal action by the Kemmerly Companies an effort to intimidate them into silence. Meanwhile, a city of Tucson attorney says the suit contains fatal flaws and should be voluntarily dismissed or else he may seek sanctions against the plaintiff's lawyer.

Two years ago, the Kemmerly Companies acquired a large site at Second Avenue and University Boulevard intending to build a combination of single-family homes, duplexes and condominiums. The 23-unit project was approved in concept last June by the city-appointed West University Historic District Advisory Board, but then things got sticky.

The developer proposed constructing wood-frame units and applying a synthetic, sand-finished stucco. To match the 75- to 100-year-old surrounding homes, the advisory board asked Kemmerly to build with masonry and stucco instead.

Members of the advisory board pointed out that their adopted guidelines for new construction clearly state, "Select building materials that are in keeping with materials seen on the block." In addition, concerns about the longevity of "stick and stucco" were raised.

While Kemmerly worked to accommodate several other design requests from the advisory board, the company didn't budge on the basic building material and eventually plans were submitted to the city. William Vasko, Tucson's planning director, approved them in January, in part because the building material would not be visible.

Both the advisory board and the West University Neighborhood Association appealed the decision to the City Council. In his letter, WUNA president Mark Pettit wrote the project would have "cheap construction" and that, "as proposed, [the project] will certainly detract from the value of the irreplaceable, historic structures in this area."

Val Little, chair of the advisory board, said of the proposal, "To now allow an infill project to plant itself in the midst of the Historic District with an economy-grade construction system flies in the face of more than 20 years of effort on the part [of many people] ... to protect this unique piece of Tucson culture and history."

In response, an attorney representing the Kemmerly Companies requested that the city deny the appeals and issue building permits for the project. He argued that the request for use of masonry construction exceeded the requirements of the city's Land Use Code and thus were invalid.

Michael Meehan, another attorney for the firm, wrote Little to "demand that you cease your efforts to appeal." Noting that the Kemmerly Companies stood to lose at least $100,000 if the project was delayed further, Meehan stated that Kemmerly "will pursue all remedies of law that may be available to them, against you personally as well as the [Neighborhood] Association," if the appeals were not immediately dropped.

The city, however, allowed the appeal process to continue, and on March 21 a lawsuit was filed against the neighborhood association, Pettit and all the members of the advisory board. In the suit, attorney Meehan says the appeals were "actuated by malice" and that the delay had caused at least $250,000 in damages.

Mark Pettit characterizes being personally named as a defendant an "unbelievably chilling thing." He says SLAPP suits like this are designed to make people stop appealing governmental decisions, but that he and the WUNA board are unanimous in their sentiments toward the project.

Meehan defends the suit, saying the Kemmerly Companies did "everything and anything [they could] before the appeal to accommodate the neighborhood." Plus, he adds, the case should not even have gone beyond the planning director's January decision.

Principal Assistant City Attorney Michael McCrory, however, vigorously disagrees with Meehan's assertion that the appeal was baseless. In a strongly worded letter sent earlier this month, McCrory asserted the appeal was legitimate and criticized Meehan for the lawsuit.

McCrory also requested the suit be dismissed quickly. He wrote that if it wasn't, he might seek sanctions against Meehan for violating legal ethics that require a lawsuit to be well grounded in fact.

At its meeting April 8, the City Council considered the appeal. Little emphasized that the project was in the heart of the historic district and ignoring the building material because it would be hidden beneath an eighth of an inch of stucco didn't make sense.

Christopher Kemmerly replied that his company was proud of its reputation in building quality homes and that it was an elitist view to label frame construction "cheap." Then he called the whole process "a damn fiasco," and said it had taken a lot of wind out of his sails for pursuing infill development projects.

Council members, stating they had no other choice since the Land Use Code didn't specifically require masonry construction, unanimously denied the appeal.

The Kemmerly Companies victory could be short-lived. The development may need to obtain zoning variances from the city's Board of Adjustment, a process in which neighborhood cooperation is often helpful. After being SLAPPed around, it seems doubtful that the people of the West University neighborhood will be very supportive of Kemmerly's request.