Judge orders 90 days for Nut Shop building to get to 'non-dangerous' condition
CENTREVILLE — The new owners of the Tasty Nut Shop building in White Pigeon now have 90 days to get their building into a “non-dangerous” condition.
An order to that effect was made by St. Joseph County 3B District Court Judge Jeff Middleton at a hearing Wednesday regarding the building and its potential fate. The new owners, Union Hall Block Building, Inc. (UHBBI) will have 90 days from Wednesday’s hearing, approximately Aug. 23, to “bring the property into safety status,” as well as 90 days to get liability insurance on the building.
In addition, representatives for the old and new owners will have 30 days to file a brief with the court regarding the applicability of the village’s Dangerous Buildings Ordinance as it relates to commercial buildings, a topic which was brought up during Wednesday’s hearing. The Village of White Pigeon will have 30 days to respond to the brief upon filing.
With the order, the ultimate fate of the pre-Civil War-era building on the corner of Chicago Road/U.S. 12 and Kalamazoo Street is still up in the air, as a ruling on whether or not the property can be demolished has not officially been made as of yet. However, the timeframe gives the UHBBI nonprofit, who was recently deeded ownership of the building and was granted intervener defendant status in the case Wednesday, an opportunity to make enough fixes to potentially avoid its demolition.
The next hearing in the case is scheduled for Wednesday, Aug. 31.
Concerns still remained among both Middleton and Roxanne Seeber, the attorney for the Village of White Pigeon, on the financial feasibility of the repair and restoration project as a whole, which has been estimated to cost anywhere between $2 million and $5 million. However, Samuel Gilbertson from Willis Law, the attorney for UHBBI, argued the overall cost wasn’t the issue at hand at the moment, rather the question being getting into compliance with code.
“If we’re here due to the danger of the building, our experts say that will be under $65,000 to do the brickwork, to fix the glass, and those sorts of things,” Gilbertson said. “We have that money for that, we have a donor that’s pledged that. Whether we have the money for $3 million or $5 million is, respectfully, not really the question before the court today. The question is, are we in compliance with the code and if we’re not, how do we come into compliance? Well, we spend $65,000 that we already have.”
Gilbertson added he “fully expects” the group to raise the millions needed to do the whole repair and restoration, saying it “doesn’t make sense” if the village still wants to move forward with demolition if the building is brought up to code.
At the beginning of Wednesday’s hearing, Seeber reiterated the village’s position that the building should be demolished as it is still a “public safety disaster,” and claimed the original owners, Marjorie Hamminga and Linda Hochstetler, didn’t do anything since the last hearing regarding the building, other than deeding it to UHBBI.
“We adjourned to give these property owners, Hamminga and Hochstetler, an ability to come up with their plans, which at the last hearing were supposed to be imminent. Instead, what happened is they waited until the end hour and went ahead and quitclaimed it to this nonprofit,” Seeber said. “There’s some agreements in there with respect to the quitclaim [deed], but it doesn’t look like Ms. Hamminga or Ms. Hochstetler actually had any plans to do any repairs at the time of the last hearing, and that was the reason we adjourned it.”
However, Robert Soltis, the attorney for Hamminga and Hochstetler, said he recalled Middleton saying his clients “didn’t have the financial wherewithal to come up with the money,” and that Middleton was “right.” He argued the nonprofit coming in has a plan for the building – a plan outlining the different phases of the project was filed recently – and it was “sufficient” to show the court progress has been made with the building.
In his opening statement to the court, Gilbertson objected to the demolition, acknowledging the amount in pledges and donations UHBBI have received so far – reportedly $63,000 of cash/pledges and $95,000 in in-kind donations – as well as the short time it took for UHBBI to get nonprofit status. He argued the village is doing an “interesting end-around” in the type of relief they’re seeking, referencing the dispute of whether the village’s ordinances or the International Property Maintenance Code, which was recently adopted by the village, apply in the case.
“Whichever ones are applied, there are procedures that need to be followed, namely notice and petition to the Board of Review, as well as an appeal to the circuit court, etc., there are procedures that need to be followed when you’re dealing with an allegedly dangerous building,” Gilbertson said, adding the village cited the State Construction Code ordinance in its citation to the building, rather than their Dangerous Buildings Ordinance, which lays out a process for hearings that owners of dangerous buildings are afforded, including hearings in front of an enforcement officer, a board of appeals, and finally to a court of law.
“All of those steps have been completely avoided here, and that’s regardless of whether we’re talking ordinance or very similar provisions in the international code,” Gilbertson continued, referencing Section 110.1 of the International Property Maintenance Code, which also lays out a process for building owners to make repairs if a dangerous structure is “capable of being made safe by repairs.”
Seeber argued during Wednesday’s hearing that the Dangerous Buildings Ordinance only applies to residential properties and not commercial buildings, and said the village typically uses the court system to enforce compliance orders rather than the procedures outlined in the Dangerous Buildings Ordinance, because they can “get support” from the courts.
“The Village of White Pigeon has a choice. In St. Joseph County and in some other counties, the choice is getting the citation into the court and letting the court be the deciding person,” Seeber said. “It does not require the village to undertake any particular dangerous buildings procedure or have a hearing officer hear this. I’m very familiar with how this works, and in fact I believe this village and most other places in St. Joseph County and Kalamazoo County have determined they would not use this particular procedure if they can get support from the local district court for compliance orders, and that’s what we’ve done.”
Middleton gave his thoughts on the case so far, noting if he was inclined to demolish the building, he could’ve ordered it to occur, however he noted the defendants have “done quite a bit” and set forth reports that showed the building can be saved. However, when it came to the repair and restoration, the biggest issue was money.
“The quote is, I believe, $3 million to $5 million, maybe $6 [million] and that’s not putting a kitchen or anything else in it. Two things are always true in construction, it takes longer and it costs more than you think,” Middleton said. “They have $63,000 on a $6 million-plus project. They have looked at, but not received, about $325,000 in grants, and they make a good point. People might not want to donate to the effort to salvage this building if they’re afraid the judge is going to order it tore down. … This is expensive, and every step of the proceedings requires more money.”
Middleton said the suggestion to demolish the building and build a comparable one, as was suggested in the Jones Petrie Rafinski report on the building commissioned by the village, was “not unreasonable” and “probably cheaper” than trying to save the building, and that if he “saw a surety guarantee” that UHBBI had the $6 million to do the project, he’d “feel more comfortable.” He said he understands the village’s position that they don’t “want to leave it like this in perpetuity” and that it is “a danger.”
Middleton then addressed the defense’s argument.
“Mr. Gilbertson indicates that if it was the dangerous building ordinance, they would have an opportunity to render the building safe and secure, and then have a period of time to determine what they wanted to do next. Under the way [the village] filed it, they don’t have the ability to do that,” Middleton said. “Let’s assume, you’re asking them to tear it down because it’s unsafe. perhaps they could spend $500,000 to make it safe? Here, they don’t have an opportunity to do that. You’re asking for the immediate demolition of the building.”
Middleton said he hasn’t had the opportunity to hear UHBBI’s experts during the proceedings on their exhibits, which have not been stipulated as evidence as of yet, but noted they set out what he called a “rational timeframe with expenses attached” for their plan to refurbish and restore the building in stages. He opined there wasn’t anything “nefarious” about the deeding over of the building to UHBBI, rattling off the things they’ve done so far, saying their argument is they “haven’t done anything yet.”
Following Gilbertson’s comment about the money situation – in which he also said he agreed with most of Middleton’s assessment and offered to argue the point about the Dangerous Buildings Ordinance – Middleton made the order, saying he wasn’t going to order demolition of the building at this time because there were “legal issues and some factual issues” that need to be cleared up. He said UHBBI said they may still be “hamstrung” in their fundraising efforts, since he hasn’t ruled that the building can’t be demolished, but said he was “impressed” with the amount of progress UHBBI has made with their plan for the building.
Overall, Middleton said he didn’t want to “kick the can down the road” with the situation, but that to “simply pull the trigger” on demolition would “be imprudent.”
“Let’s see what can be accomplished in 90 days,” Middleton said.
Robert Tomlinson can be reached at 279-7488 ext. 22 or firstname.lastname@example.org.