BUILT THE WALL
Trump wants one, Kaspar has one
Outdoor construction season won’t start again until the snow melts in…July? August? But in the Honorable Judge Mark Magit’s courtroom in Mono County Superior Court on Tuesday, the construction of a retaining wall was at the center of a dispute between Alex Kaspar, Kim McGhie, and the Town of Mammoth Lakes.
Mr. Kaspar owns the lot at 196 Davison Street in the Canyon neighborhood of Mammoth. Ms. McGhie owns the lot on the uphill side of Mr. Kaspar’s property at 210 Davison.
They are neighbors, but right now, not feeling neighborly.
The town approved Mr. Kaspar’s plans to build a three unit condominium on his lot in 2015 by granting him a building and grading permit. Mammoth Lakes Senior Public Lakes Senior Public Works Inspector Ron Fansler supervised construction of the wall, approving its placement and height. Mr. Kaspar hired Rock-n-Dirt Inc. to do the grading and excavating for the property. But by December 2016, Kaspar accused Rock-N-Dirt’s president Darren Twilegar of over-excavating and wasting “time on straining the dirt prior to exporting and sorting the rocks by size and moving such sorted rocks for pile to pile, which was out of scope of the contracted work.”
Twilegar asked Kaspar to pay him $30,000 for the work. Kaspar refused for the aforementioned reasons. Judge Magit did not rule on the dispute between Kaspar and Twilegar, but called what happened next unfortunate. In his declaration, Kaspar said, “Twilegar threatened me that he will blacklist me in town so no one will work with me any longer and he would have “The Town” (his nickname for Ron Fansler) shut me and my project down.” Through a public documents request, he obtained texts and emails sent between Fansler and Twilegar. Through a public records request The Sheet obtained these as well.
On Wednesday May 31, 2017 at 10:56 a.m. Fansler asked Twilegar, “Are you 100% percent sure about dropping Grading Permit for Davison? If so I will email Alex to inform him his project is dead in the water and to clean it up and stabilize the area until it can be straightened out.”
Twilegar responded, “He owes me 30K and wants to sue me he says? What would you do?”
Fansler wrote back, “Understood the email will go out shortly”
Twilegar: “Awesome thanks!!!!”
At 12:22 p.m., later that day, Twilegar emailed Fansler.
“Dear TOML. As of today 5/31/2017 Rock-N-Dirt Inc. is severing all ties with Alex Kaspar…Due to a conflict with said owner. However we will gladly take care of anything that would jeopardize our relationship with the Town of Mammoth Lakes.”
About a week later, on June 6, 2017, the town issued a Stop Work Order to Kaspar. Coincidence? Or did Fansler and Twilegar conspire to stop construction? Judge Magit acknowledged Fansler’s inadequacy. “I’m hoping Mr. Fansler has been sent back to some remedial training,” he said. He mentioned how he thought it was unfortunate that emails between Twilegar exist. He expressed sympathy with Mr. Kaspar’s frustration, but could not apply the law to expedite the process. Regardless of how or why the stop work order was issued, the wall did not comply with the building and grading permit. The town revoked the construction permit because the wall violated the town’s height maximum for retaining walls of four feet. Mr. Kaspar’s wall was built as high as six feet. The wall’s location is also disputed. The foundation of the wall is on Kaspar’s property, but the face of the wall is on Ms. McGhie’s property. Essentially, the wall is on both Mr. Kaspar’s and Ms. McGhie’s properties.
The construction of Mr. Kaspar’s condominiums cannot continue until the town re-issues his building permit. To reissue the permit, Mr. Kaspar needs to apply for a permanent easement onto Ms. McGhie’s property, apply for a lot line change, or rebuild the wall entirely on his property.
Judge Magit explained that the Court cannot force the town to reissue a construction permit to Mr. Kaspar, if Mr. Kaspar has not met the town’s requirements to receive one. Judge Magit called the issuance a ministerial matter that the court could not impede upon through a writ of mandate.
“This is pure logic,” Judge Magit said, referring to the three ways by which Mr. Kaspar can get his building permitted reissued.
Ms. McGhie’s attorney Mark Carney, of Liebersbach Carney & Reed, insisted that “every bit of the wall” should never have been built on his client’s property. The building plans show the wall on Mr. Kaspar’s property. “Those approved plans show the wall entirely on Mr. Kaspar’s property,” Carney said. Judge Magit did not dispute the claim.
In a supplemental declaration by Barbara Harper, Kaspar’s attorney, Carney pointed out a misquote of the language from the contract signed by both Ms. McGhie and Mr. Kaspar in the right of entry, “Therefore in good faith and consideration of the benefit of the free installation of the retaining wall which Alex Kaspar will install at his own expense … the property owner Kim McGhie permits Alex Kaspar the right of reasonable entry and temporary construction easement upon the land of the residence known as 210 Davison.”
In a reply memorandum, Ms. Harper added four words to that quote. So it read, “…right of reasonable entry and temporary construction easement to construct the wall upon the land of the residence known as 210 Davison.”
The first clause grants Mr. Kaspar the ability to use Ms. McGhie’s land to build on his own. The second, grants him permission to build on her land.
“She quoted a term of the agreement and she inserted four words in that term that don’t exist in the contract in order to make you believe that the contract says that Mr. Kaspar could construct the wall on her property,” Carney claimed. He called the misquote an attempt to defraud the court. Harper admitted the mistake, but didn’t know how those four words got there. Judge Magit assured that he gave no credence to that quote in his findings.
Mammoth Lakes Senior Public Works Inspector Ron Fansler supervised construction of the wall, approving it’s placement and height. Therein originates Mr. Kaspar’s frustration. How can a wall that was approved in a building plan, that was constructed under the supervision of the town lead to the revocation of a building permit?
The contract signed by Ms. McGhie and Mr. Kaspar, but not by the town, grants Mr. Kaspar a temporary easement onto Ms. McGhie’s property to build the wall. Judge Magit read an excerpt of the contract that Mr. Kaspar and Ms. McGhie signed, “The purpose of this access is to allow Alex Kaspar to construct and install a retaining wall with finished surface being on the property line, which will prevent further erosion of the land.” From this the judge concluded, “That appears to say that Ms. McGhie understood that the wall boundary is going to be at the border and therefore by inference the substance of the wall would be on 210 Davison Road.”
The contract also says that once the wall is complete it will become the property of Mr. Kaspar’s. To the judge, this contract amounts to consent from Ms. McGhie. But an official lot line adjustment was still needed to make the construction legal.
Judge Magit said that the contract “isn’t well written” and inferred that it had been drafted by Mr. Kaspar and not a lawyer. Carney confirmed that it had been written by Kaspar.
“You can’t just change your boundaries, because things are recorded and the government has to approve boundary line changes,” Judge Magit told Mr. Kaspar’s attorney Ms. Harper.
In conclusion, the three options. Lot line adjustment requiring McGhie consent, permanent easement requiring McGhie consent, or tear down and rebuild wall.
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