Concerns raised about Tasty Nut Shop repair cost, timeline, at citation hearing
CENTREVILLE — The latest chapter in the Tasty Nut Shop building saga, and potentially the building’s fate, is now playing out in St. Joseph County 3B District Court.
A hearing was held Wednesday on code violation citations given to the owners of the buildings at 100 and 102 E. Chicago Rd. in White Pigeon, Marjorie Hamminga and Linda Hochstetler. District Court Judge Jeffrey Middleton allowed the village of White Pigeon to amend the date of its December citations to the owners, contrary to the argument by the defendants’ counsel that they should be thrown out due to issues with the village’s code enforcement ordinance at the time of the citations.
In addition, discussions on what the “remedy” for the 150-plus-year-old building’s dire situation could be were discussed, referencing engineering reports commissioned by the village and the defendants and recommendations outlined for how to fix up the building.
The matter is set for another hearing on Wednesday, May 25 at 1 p.m., where reports on a geotechnical survey, cost estimates and information on the fundraising effort for the building are expected to be presented.
Robert Soltis, the attorney defending Hamminga and Hochstetler, argued in court Wednesday and in a Feb. 14 filing that a code violation citation issued on the building on Dec. 15, 2021 should be thrown out, because the village had not yet adopted the International Property Maintenance Code (IPMC) into its code enforcement ordinance at the time it was issued. The citation in question listed the “International Property Maintenance Code” as the reasoning for it, further mentioning that “multiple violations of the codex were found” after a search warrant was executed on the building. It also mentioned that the building is “beyond repair, in the state of collapse and needs to be demolished.”
The White Pigeon Village Council, referencing this specific case, did indeed adopt the IPMC into its ordinance during its Feb. 16 meeting, two days after Soltis’ filing. During the meeting, Zoning Administrator Doug Kuhlman told council members they were comfortable with their standing under the state’s construction code, but recommended amending the ordinance to “offer clarity” to the ordinance in the future.
In addition, Soltis argued for clarity on which sections of the IPMC his clients violated, asking for a “more definite statement” on the citation.
Roxanne Seeber, the attorney for the village, argued in court and in a Feb. 22 filing that the IPMC is part of the state’s construction code, and therefore the village would be covered writing a citation under the IPMC. In addition, she argued against a more definite statement, saying a listing of section numbers in the IPMC being cited on the building would result in “80 individual citations.”
In a response to Seeber’s argument, in a March 14 filing, Soltis argued that a more definite statement is still needed, and challenged the notion of the IPMC being in the state construction code.
After both attorneys reiterated their arguments, Middleton said he was persuaded by Seeber’s argument to the IPMC being covered in the code book adopted by the state, and allowed the village to change the date of the citation from Dec. 15 to a date after the adoption of the revised ordinance.
“The village’s argument carries the day anyway, but as I indicated, I don’t want to leave the issue open [for appeal], so I’ll allow them to amend the citation to change the date to today’s date so there’ll be no issue going forward,” Middleton said.
Following that decision, the matter of getting a more definite statement of the violations was discussed. Middleton said the photos included in the reports of the building’s deficiencies were “overwhelming,” and said while he saw the village’s argument that they don’t have to cite every single thing, he also understood the defense’s argument of needing to know what specifically the issues cited are. Soltis said his clients “have a handle” on what the claims are.
“We’ve had an engineer come out and submit a report to the court. I’m not going to argue this building doesn’t need some renovations, it does, clearly. The question I think the court needs to address is, what is the remedy? How do you handle this?” Soltis said, later mentioning the BYCE engineering report commissioned by the building owners, as well as the effort by a local committee to gain 501(c)3 nonprofit status and raise funds to restore the building.
Soltis argued that the village should proceed with the building under a 2010 dangerous buildings ordinance, which he argued in his March 14 filing provides defendants due process by having a hearing officer hear both sides and make a ruling, potentially to give the owner of the building “sufficient time” to make repairs or improvements. However, Seeber argued later in the hearing that while they do have the ordinance, they typically don’t use it “when there’s a District Court that is willing to enter compliance orders.”
“If there’s a community I represent that does a dangerous buildings ordinance, it’s because we do not have a court that will take a citation for a municipal civil infraction for construction code,” Seeber said. “The reports well established the condition of the building.”
Discussion for the rest of the hearing mainly focused on the potential timeline for repairs and the potential cost of the overall project to restore the building and whether or not it could ultimately be feasible. Middleton said when he looked at the repair recommendations from BYCE’s report, which included repointing the brick mortar, doing extensive roof investigation and possibly having it replaced, removing and rebuilding the brick wall where cracks are large and bricks are separating, and possibly new concrete foundation walls and drains, he said “dollar signs are flashing before my eyes.”
“We’re talking millions of dollars, and it’s my job to determine what the remedy is. There’s a lot of unknown information, the least of which is how much this is going to cost,” Middleton said. “Right now, I’d estimate this building is worth $0, and if they were to try to sell it, it’s unsellable unless somebody were to buy it and tear it down to have a parking lot. It has zero value.”
Middleton said the overarching question is if it’s worth it to spend or fundraise potentially millions of dollars to restore a building that has little monetary value, saying that there has been between “50 and 75 years’ worth” of deferred maintenance on the building. He then mentioned the Jones Petrie Rafinski (JPR) report the village commissioned back in November, which recommended the building be demolished, and said demolition is one of the possible solutions to the situation outside of doing the renovations.
Seeber argued the village’s position, saying they are also concerned about the cost and timeline of any potential repairs. She mentioned both reports referenced settling foundation of the building, and argued the cost of getting a geotechnical engineer to decide whether to keep the foundation may not be a good idea. Soltis later said that a geotechnical engineer has come in to do an inspection, and a report on their findings is forthcoming.
To Soltis’ argument earlier in the hearing that the building is safe at the moment because the Tasty Nut Shop is moved out (save for some equipment, which will be moved out once a temporary location for the shop is found) and the building is marked as uninhabitable, Seeber said things could just get worse, and asked the court to order the building be demolished.
“If the goal is, ‘gee, we’re going to make it safe and leave it sit here as long as we have to,’ all that’s going to happen is it’s going to keep settling, we’re going to keep losing bricks, we’re going to keep trying to patch things together to keep it moving,” Seeber said. “Our engineer at one point indicated being passionate about the building is one thing, but being good stewards is another. Being good stewards of the building would’ve dictated they took care of it since 1985 when they first owned it. It hasn’t been taken care of in years, and at this point to try to go back and redo everything that hasn’t been done over the years doesn’t seem to be a cost-effective method for this.”
Soltis argued his clients should be given the time to follow up on the issues presented with cost estimates and be given the opportunity to attempt to raise funds to try to restore the building and fix the issues, adding that the group raising funds has gotten commitments of “serious money” from donors once their 501(c)3 request gets approved by the IRS. He added the group has reached out to State Sen. Kim LaSata and local area foundations about potential grant funding opportunities for the repair work.
Middleton said while he supposes he “may have enough” to order demolition of the building, he said the restoration group “haven’t really had a chance to try to seek another solution.”
“I have concerns about how expensive and how realistic it is, but they haven’t even had a chance to try,” Middleton said, ultimately granting the time to follow up on some of the cost and timeline details, as well as the geotechnical report.
Robert Tomlinson can be reached at 279-7488 ext. 22 or firstname.lastname@example.org.