Appeals court to hear Kozy case in June
City officials contend that a judge's maintenance order is "contrary to the logic and facts." The building's former owner says those officials have a "chronic disrespect for the laws that protect it."
For the second time in less than a year, the Minnesota Court of Appeals will weigh in on the future of Pastoret Terrace, the downtown Duluth building that famously housed the Kozy Bar and Apartments.
A three-judge panel will hear oral arguments June 22 on the Duluth Economic Development Authority's bid to lift a demolition ban on the historic structure, which has been ravaged by a series of fires dating back to 2010.
Judge Eric Hylden in January ordered DEDA, the current owner, to start shoring up the 1887 Oliver Traphagen-designed building, denying the agency's motion to remove or modify a temporary injunction against demolition in wake of the latest blaze on Nov. 1.
An exterior bracing system, ordered by the judge to prevent an outward collapse, would be expected to come with a price tag of approximately $231,273 to $345,663, officials told the court.
The building's former owner, Eric Ringsred, who lost the property to tax forfeiture in 2015, has joined a group of local preservationists known as Respect Starts Here in arguing for a series of emergency repairs that they say are necessary to preserve the building's historic integrity.
The roof has largely collapsed, causing debris to be strewn throughout the structure, and engineers hired by the city said they were not able to safely assess portions of the Pastoret and adjoining Paul Robeson Ballroom due to heavy damage and unsafe conditions. Two of the six original townhouse units, including the iconic rotunda at the corner of First Street and Second Avenue East, are said to be most heavily damaged.
While Hylden in October 2019 cleared the way for the buildings to come down, the Court of Appeals in August revived Ringsred's lawsuit. The judges at that time said the demolition order was erroneously based solely on economic considerations, ordering further proceedings to assess the viability of potential restoration.
DEDA subsequently argued that historic preservation is impossible, especially after the Nov. 1 fire. But Hylden, who reviewed professional opinions from either side, declined to lift the injunction, instead ordering a "phased approach" to stabilize the structure and further assess its condition.
But DEDA members and city councilors have expressed hesitation to pump more money into the property, and the Duluth City Attorney's Office filed an appeal of the judge's order in February.
In a brief, Assistant City Attorney Elizabeth Sellers wrote that the judge's refusal to lift the injunction was "contrary to the logic and facts, given the property's changed status as a health and safety hazard." She said at least partial, targeted demolition of the structure is a necessary "first step."
"Even if the facade could be braced, disassembled and reassembled, so that the old look is retained, the goal of historic preservation is out of reach," Sellers wrote. "Entirely apart from economic considerations, then, there is no alternative that serves (the Minnesota Environmental Rights Act's) goals of protecting against the property's 'impairment or destruction.'"
The appeal secondarily asserts that Hylden should have required Ringsred and his fellow preservationists to post a monetary bond with the court before DEDA undertakes the bracing work. Should the agency ultimately prevail in its legal efforts to tear down the building, the funds could be used as reimbursement for expenses incurred as a result of court-ordered repairs.
Hylden did not address the bond issue in his four-page order.
The attorneys argued the latest appeal should be denied, calling it the latest in a series of "bad faith" efforts to demolish a protected asset for "self-righteous and self-serving" purposes.
"Appellants' contention that restoration of the property is 'impossible' was supported only by misrepresentations, almost amounting to outright fabrications, of the initial fire report and other pertinent facts, driven by appellants' obsessive desire to see this property's destruction, and their chronic disrespect for the laws that protect it," the attorneys wrote in a brief in April.
Ringsred and Paul claimed only about 20% of the brick on the facade would need to be replaced, arguing that Hylden's order was appropriate to allow for the collection of more facts before determining how to proceed.
They further argued the preservationists should not be required to post a bond due to the "strong language of the (August) appellate order" and due to "equitable considerations," among other reasons.
The appeal has been assigned to judges Jennifer Frisch, Kevin Ross and Lucinda Jesson — none of whom were on the panel that overturned the demolition order last year. A ruling is expected by September.
DEDA last month took one step long sought by the preservationists, authorizing $54,000 in emergency spending to board up the building, repair damaged fencing, remove graffiti and install better lighting, as well as security cameras.