Judge directs White Pigeon to pursue demolition of Tasty Nut Shop building
WHITE PIGEON — After several months of uncertainty, there may soon be clarity over the fate of a pre-Civil War-era building in White Pigeon.
On Wednesday, St. Joseph County 3B District Court Judge Jeffrey Middleton directed the Village of White Pigeon to pursue, if they wish to under the International Property Maintenance Code (IPMC), demolition of the Union Hall Block Building on the corner of U.S. 12 and Kalamazoo Street. The building formerly housed a catering company and the Tasty Nut Shop.
In addition, Middleton found previous owners Marjorie Hamminga and Linda Hochstetler, who have both been dismissed as defendants due to Hamminga’s passing in July and Hochstetler no longer being a building owner, were in violation of the village’s building code ordinance and were responsible for the condition of the building, but did not issue a fine. Middleton clarified in an email Thursday that as their assignee, Union Hall Block Building, Inc. (UHBBI), who now owns the building, is “bound by that finding.”
However, Middleton said he does not currently have authority to directly order demolition, only to direct the village to pursue it and petition for it under the IPMC, which has mechanisms and procedures in place that would need to be followed in order to get demolition approved, including review by a board of appeals comprised of private citizens not from the area, and with no personal or financial interest in the property. That board would ultimately determine whether or not demolition goes forward.
Wednesday’s ruling effectively forestalls and potentially ends efforts by UHBBI to restore the 1840s-era building, which has been found in a number of engineering reports in the last year to have significant structural issues both inside and out due to years of delayed maintenance. The building was originally condemned in December after citations, which were later amended after the village adopted the IPMC, were issued for around 80 violations of the village’s building code.
Back in May, Middleton ordered UHBBI to “bring the property into safety status” within 90 days, as well as gave them 90 days to get liability insurance for the building. In an update given to the court, Paul Morgan of Willis Law, the attorney representing UHBBI, said while they have obtained liability insurance on the building, without the village as an insured party, he admitted they were “not in 100 percent of compliance by any stretch” with the order, saying his client was being “held up” from making repairs, claiming that part of the reason was because the village was not an insured party on the liability insurance.
“My client is being held up with these construction efforts, which essentially start with providing safety measures for workers to go into the building,” Morgan said. “These are all things we could have done in four to six to eight weeks, but for various reasons have not been able to obtain permission from the village to move forward.”
Morgan said the safety measures planned for the building would’ve been replacing concrete barricades currently in place around the sidewalk of the building, putting up six-foot fences around the building, and putting temporary netting/cable braces around the southwest wall of the building. That part of the work, according to testimony from contractor Jake Leighty during the hearing, was expected to be around $30,000 with their most recent quotes.
Additionally, Morgan said while the UHBBI was in the process of applying for a $500,000 grant to try to cover some restoration costs, he agreed funding was an issue for the group because of the uncertainty of the building’s situation, but said the group is “making their way through this process.”
Both attorneys, Morgan and White Pigeon Village Attorney Roxanne Seeber, filed arguments prior to Wednesday’s hearing about the applicability of the IPMC in the situation, with Morgan arguing that Section 110 of the IPMC, which governs demolition, applies in the case and that White Pigeon’s Ordinance 10-11-01 is not a demolition ordinance.
Seeber argued that the village is “not constrained to follow a particular provision of the IPMC,” and that the IPMC “grants the relevant local official a certain latitude in choosing the method of enforcement.” In addition, Seeber argued that while the IPMC does have provisions for the appointment of a dangerous buildings hearing officer, it is the building official and not the defendant who chooses which provisions the village utilizes for ordinance enforcement.
In her opening statement to the court, Seeber said the court has the option to issue or enforce any order to address the ordinance violation upon a finding of responsibility, however Middleton interjected by saying they haven’t had a formal or informal hearing yet to find the defendants guilty of an infraction alleged in the original ticket.
“We’ve got the cart before the horse. This was filed with a poorly vague ticket with IPMC, which had not yet been adopted, but we havent’ actually had a hearing to find the defendants guilty of the civil infraction alleged in the ticket,” Middleton said. “As Mr. Morgan indicated, that would result in a fine to the two original defendants, and after that point would be the point we’d get to the compliance order and what it is you wish them to comply with. We’ve been rushing toward demolition and no one has yet been found responsible for anything on the original ticket or amended ticket.”
Seeber said she thought when the court had an initial hearing in March, it was indicated that Hamminga and Hochstetler were in violation of the code, but Middleton said he didn’t recall making a finding at that hearing, and added they did not have a request for a compliance order.
Ultimately, in his ruling, Middleton said the case has never been about compliance, but about seeking demolition, and that a compliance order most likely would not have resulted in compliance, ordering the current owners to do things they “couldn’t afford to do,” once again casting doubt on UHBBI’s ability to raise enough money for the restoration effort.
“This compliance order that I’m allowing them to submit is never going to result in compliance, and I’m ordering the defendants to do things at their expense they wouldn’t be able to do,” Middleton said. Ultimately, he did not rule on a compliance order.
White Pigeon Zoning Administrator Doug Kuhlman also testified before the court Wednesday about the state of the building. Kuhlman said the last time he observed the building was right after the show cause hearing on July 29, noting utilities were still functional on the building, despite orders to have them turned off, and that there were times he had noticed people being in the building, including two weeks ago.
Kuhlman also testified he was sent a copy of the building’s insurance policy, but said he had a number of concerns, notably whether or not the building’s insurance had the village named as an insured party.
“It was my understanding from the courts that they thought that was a valid concern, and it was my understanding that they were going to move through with the insurance and that the village would be named,” Kuhlman said. “If I made a bad assumption, I’ll take responsibility for the delay in the fencing, and that’s why I told Mr. Leighty he was very good to share the insurance policy with me and it was my understanding was the village was going to be named as well. If that’s an error, I apologize, and we can move forward.”
Middleton said his recollection of events was that he was only looking for the building to have liability insurance, and no mention was made of whether or not the village would be named on the policy. Later, Morgan said he would be willing to add the village as an additional party on the policy. Morgan also rebutted Kuhlman’s statement about utilities, saying they have been shut off since Kuhlman’s visit, noting UHBBI President Gretchen Anderson’s “frustration” with utility companies on getting utilities shut off in a timely manner.
Overall, Seeber said the village is “concerned perpetually” about the safety of the building and the safety of those who may be using the sidewalk around the building, and said the village to this point had not heard about any of the plans for securing the building.
“To the extent that there are plans that have been outlined today, the village up until now has not heard what the plans for repair and/or making safe have been. Our thought on this is there’s been a good long amount of time in which nothing really happened, and we wonder how serious they are about being able to move forward to this,” Seeber said. “It sounds like putting up a fence and then putting a big net over the bricks might alleviate some of the concerns about falling bricks, but it doesn’t necessarily address the bigger concern, which is the quality of the foundation and whether that can be restored to a point where the building can be used again.”
In his closing statement before his ruling, Middleton said the funding situation is a “chicken or the egg situation,” noting people may not donate if there’s uncertainty about whether the building will be torn down or not, and that he is deciding on it because the village “wants to tear it down” and they “don’t want to facilitate reconstruction or help the owners in seeking a grant for rural historic building preservation.”
However, Middleton said overall, the potential cost for restoration of the building is “expensive,” and was worried that if efforts were to continue, UHBBI wouldn’t have enough money to do the potential work and the building would become an “eyesore.”
“The insurance is expensive, legal services are expensive, contracting services are expensive, and no one has given me a quote on how much it would cost to do this. … All I know is that it’s going to be expensive,” Middleton said. “We would get in a position where the building is secure and you’ve got this eyesore in the middle of town that’s there for the next 14 years while they secure funding to accomplish this project. That’s my fear is we’ll get to a point where they’re in compliance because the building is safe from immediate danger to the public, and that’s where it’s going to sit.”
He noted the village is being “pragmatic” about the building, but in terms of the economics, he called the building “unsalvageable.” Ultimately, he said the restoration effort for the building is currently akin to “re-arranging deck chairs on the Titanic.”
“This building is in very bad shape. It has been subject to years of neglect, a longtime and continuing leaking roof, interior fire which has damaged some of the structural integrity, loss of integrity of the exterior bricks, and a foundation that predates the Civil War,” Middleton said.
“Everything that you’re doing now, renting fencing, paying for insurance, raising money, may be in the situation that they’re re-arranging deck chairs on the Titanic, doing things to save this building that is probably not savable, at an expense.”
Overall, from the reports on the structure of the building submitted late last year, Middleton said there was enough evidence if it goes to an appeals board, that the building could be torn down.
“The evidence I saw from Jones-Petrie’s report, Mr. Kuhlman’s report, the BYCE report, [Building Inspector Joe] Wickey’s report and [Electrical Inspector Ron] Bellaire’s report, it supports the theory this building should be torn down,” Middleton said.
Robert Tomlinson can be reached at 279-7488 ext. 22 or firstname.lastname@example.org.