Court grants homeowners stay of demolition
A Superior Court Judge ruled in favor of the owners of the house on 1011 Wrangell Ave. Tuesday morning granting a stay of demolition after the Petersburg Borough issued a demolition order against the structure.
The building’s foundation failed in September 2009. During June 2012, Community Development Director Leo Luczak sent notice to Fred Triem and Karen Ellingstad, homeowners, that the structure had been deemed a dangerous building. Luczak sent written requests to the homeowners asking for a plan to bring the structure up to code. Because no concrete plan was delivered the borough assembly held a non-compliance hearing December 2 and issued an order mandating the owners repair the structure within 30 days or it would be demolished at their expense.
In the stay of demolition filing and during Tuesday’s court proceedings, Triem maintained the non-compliance hearing violated their right to a fair hearing and due process.
During the hearing, no photographs showing the floor in contact with the ground or percentage of decay were produced to the assembly—a fact Triem asserts “…violates the appellants’ right to a fair hearing and to due process…the reading by the Borough Mayor of the staff memorandum as the exclusive evidence in support of its order violates the core notions of procedural due process.” according to two statement of points in the appeal document.
“I was totally blindsided by this so-called hearing,” Triem said in court. “This was not a hearing. I kept waiting for the testimony, the evidence and there never was any. There was just this funky little report written by a guy (Luczak) who was miles away, who was not under oath, did not testify, there was no opportunity to cross examine him.”
Triem was referring to a three-page report presented to the assembly and written by Luczak detailing the history of correspondence between he and the homeowners as well as the portion of borough code the home violates and his recommendation to issue the demolition order.
Triem said the report lacked sufficient evidence to prove that the building does indeed pose a danger to nearby neighbors.
“The city takes it as gospel truth that the building is going to slide down the hill,” Triem said. “The building collapsed sometime in August of 2009. It’s been in precisely the same position ever since then. It’s on a gentle hill but it’s not a steep hill. It has not moved. If it were going to move it would have moved by now.”
Borough Attorney James Brennan argued that the greatest harm in not demolishing the house falls upon the nearby neighbors.
“The uncontroverted facts are that we have an ongoing safety violation, a violation of the safety code that’s intended to protect the citizenry from harm from a dangerous building,” Brennan said. “There’s been an ongoing flaunting of this code that has been ongoing for five years.”
He also commented on the threat from a home owned by Hunt and Robin Parr located around 45 feet downhill of the Triem and Ellingstad home.
“Those neighbors are quite concerned about this building coming down on top of them,” Brennan said. “There’s the threat of this house collapsing because both its roof and its foundation lack load-bearing capabilities.”
But the Superior Court Judge Philip Pallenberg ultimately ruled that the borough didn’t provide enough concrete evidence to support those claims.
“I don’t question the sincerity of the fear of a property owner but I don’t think I have engineering evidence or competent evidence from someone I’ve been told has sufficient credentials and has made a proper investigation to be able to assess whether there is in fact an actual risk,” Pallenberg said.
He also questioned the merit of the non-compliance hearing.
“The hearing before the assembly was a rather abbreviated process,” Pallenberg said. “The primary evidence that came before the assembly was the unsigned, undated and unsworn statement from Mr. Luczak who wasn’t present and available for questioning or cross-examination.”
The court will hold a separate hearing on Triem and Ellingstad’s appeal of the borough’s demolition order. The stay of demolition prevents the borough from demolishing the structure until an appeal decision is made.
That proceeding and a court decision should be made by June.
Borough Manager Steve Giesbrecht is optimistic about that hearing despite having the stay of demolition granted. He said although the borough couldn’t prove beyond a shadow of a doubt the building is likely to slide from its current position he’s confident the court will not appeal the borough’s decision to issue the demolition order.
“I am disappointed that we can’t move faster with this so we can’t help the neighbors down there,” Giesbrecht said. “I disagree with the judge that he felt there wasn’t an imminent danger to the folks in the neighborhood.”
Giesbrecht also disagreed that the non-compliance hearing was “unorthodox.”