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The owners of a Washington Township mansion in violation of deed restrictions are asking a judge to delay the home?s reconstruction that was supposed to start this week.
The year-or-more delay sought by Simon and Saca Palushaj is part of a nearly nine-year, contentious legal battle over the $900,000, 9,000-square-foot home in Lockwood Hills subdivision near 26 Mile and Mound roads.
Macomb County Judge Matt Switalski in December ordered the home brought into compliance through partial or full reconstruction by July 1, but the home has not been touched. Judge Mark Switalski, who took over the case, scheduled a hearing for Monday in Macomb County Circuit Court in Mount Clemens.
?Quite simply, this is not enough time for compliance,? the Palushajes? Troy-based attorney, Dennis Rauss says in a motion filed Monday. ?The amount of time ? was way too short based upon the weather over the past few months and the numerous approvals and hoops the defendants will have to go through with both the local government and property owner?s association to get approval for not only the tear down of portions of the existing structure but the reconstruction of the house. At least another year will be needed to complete this process.?
But plaintiff Aileen Thom?s Bloomfield Hills-based attorney, Thomas Kalas, countered by calling the Palushajes? claims ?disingenuous? and ?another delay tactic.? He pointed out they?ve known about the possibility of reconstruction since 2007 when they first lost at the state Court of Appeals.
?Plain and simple, they have chosen to completely ignore the law and this court?s final order,? Kalas says in his response brief. ?This is another example of defendants? refusal to listen to the courts and to basically thumb their nose at this court, the appellate courts and the judicial system in general.
?It now appears ? this matter must be dealt with in a legal and forceful manner, such as holding the defendants in contempt of court, before defendants will take any action to satisfy the court order.?
Kalas mentions ?incarceration? as a potential contempt penalty.
The Palushajes built the Lockwood Drive home in 2004 knowingly in violation of a deed restriction because it is 80 feet from the home of their neighbor, Gerald (who died at 73 last year) and Aileen Thom, instead of 100 feet.
It?s also 28 feet from the property line instead of 40 feet. The Thoms sued and ultimately won at every level, including the Michigan Supreme Court, which last year denied their application to appeal and denied reconsideration in January.
Judge James Biernat Sr., now retired, in 2010 ordered the Palushajes to pay $184,000 in costs and legal fees to the Thoms, and the Palushajes to maintain $40,000 worth of landscaping as a buffer between the two homes. But the Thoms won on appeal.
The palatial home, three times the size of the Thoms? home, has a circular driveway, basketball and tennis courts, and an elevator for one of the Palushajes? six children who is disabled.
The Thoms claimed the home imposes on them and pointed out Simon Palushaj arrogantly ignored them when they informed him of the violation at the initial stages of construction when the blueprint could have been changed.
But Simon Palushaj, a businessman, said he already had invested a lot of money in the plans. The Palushajes say partially or fully demolishing the home would be an extreme hardship and cost hundreds of thousands of dollars. They say their home can barely be seen by people at the Thom home and actually increases their neighbor homes? values. They say they were singled out.
Courts have determined that deed restrictions are enforceable.
The Palushajes have offered to purchase the Thom home for an inflated amount. Other settlement discussions have failed. The Thoms have spent about $250,000 in legal fees.
The Palushajes point out that the appeals court encouraged a resolution short of reconstruction. ?We note that such a compromise would perhaps best serve the interests of each of the parties,? the appeals court says in a February 2012 opinion.
Plaintiff attorney Kalas called ?without merit and false? a claim in the recent brief by the Palushajes that ?the parties have been making progress in settlement discussions.?
?Although one phone call was exchanged between plaintiff?s counsel and defendant?s son, defendants are not, and never have been, serious about settlement,? Kalas says. ?Now, unfortunately for them, it is too late.?
Source: http://www.macombdaily.com/article/20130705/NEWS01/130709763/washington-township-mansion-owners-seek-reconstruction-delay
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