Faced with an appellate court ruling complicated by a recent fire and competing opinions from structural engineers, Judge Eric Hylden acknowledged Monday that he doesn't face an easy decision on the future of downtown Duluth's Pastoret Terrace.
The city of Duluth is again asking the judge for permission to tear down the historic structure, which long housed the Kozy Bar and Apartments, after a Nov. 1 blaze — the latest in a string of fires dating back to 2010.
But former property owner Eric Ringsred and a group of preservationists known as Respect Starts Here are calling for emergency repairs they say are necessary to prevent further deterioration of the 1887 Oliver Traphagen-designed building, as mandated by an August ruling of the Minnesota Court of Appeals.
Openly pondering his legal options and obligations at a nearly 90-minute virtual hearing of State District Court in Duluth, Hylden sought to find the proper balance in the longstanding legal battle that has only been exacerbated by the latest fire.
On one hand, the judge has a structural analysis commissioned by the Duluth Economic Development Authority. The report from LHB Inc. indicates significant fire damage to at least a portion of the building, and city officials argue the potential for a partial collapse necessitates demolition.
On the other hand, the judge has an affidavit from another Duluth engineer, David Berry, who asserts that the structure could still be saved. He argues that the brick exterior can be braced from outside while crews "judiciously" pick out debris from the heavily damaged and collapsed interior.
"The plaintiffs have their Mr. Berry; the defendants have LHB," Hylden said. "I'm trying to read both of them together."
In questioning Assistant City Attorney Elizabeth Sellers, the judge appeared hesitant to simply allow demolition in wake of the Court of Appeals order sparing the building prior to the latest blaze.
The three-judge panel overturned Hylden's earlier demolition order, determining that the ruling was based entirely upon economic factors, rather than an analysis of the feasibility of restoration. The judges ordered DEDA, which obtained the building after Ringsred lost it to tax forfeiture, to "perform all maintenance and repairs necessary to prevent the property's further deterioration."
"How would I explain myself to the Court of Appeals if I just dissolve the injunction and let you tear down the whole building?" Hylden asked Sellers. "Wouldn't the natural question be, 'We told you that you had to do this over. We didn't tell you that you could tear it down and then address the issues.'"
Sellers contended that the Nov. 1 fire amounted to a "significant change in the facts." She said portions of the interior are a "complete loss," much of the roof has collapsed and parts of the historic facade would need to be completely disassembled and reassembled or rebuilt.
"Based on what we know about historic preservation and the property's structure, some demolition is required," she said. "And, at this point, historic preservation is out of reach."
Miles Ringsred, son of the plaintiff and an attorney for the preservationists, has blamed the city for the latest fire, alleging a failure to adhere to the Court of Appeals mandate. He asked the judge to order the city to undertake various steps while litigation continues, such as stabilizing the walls, covering the roof and putting up security cameras and sensors.
But Hylden said the Court of Appeals never expressly outlined emergency measures to be taken. He further questioned whether the preservationists' plan would be feasible.
PREVIOUSLY: Kozy building spared by appeals court
"I'm concerned that if I do exactly what you want me to do, and order somebody to go in and do this shoring, that the First Street side of Pastoret Terrace is going to collapse," the judge said. "And then, when it does, somebody is going to be mad about that."
Miles Ringsred admitted there is some risk involved in the proposal to stabilize the walls and remove debris, but he suggested experts would be equipped with knowledge of how to approach the effort.
William Paul, an attorney representing Eric Ringsred, noted the LHB report indicates the heaviest fire damage was contained to two of the six original townhouse units. The city said the level of damage is unclear inside the adjoining Paul Robeson Ballroom as well as four townhouse units that face Second Avenue East.
"The vast majority of that building was unaffected by the fire," Paul claimed. "And yet, (the city and DEDA) want to use this as an excuse to tear the entire thing down, which of course is their end game."
If Hylden does order any repairs or only a partial demolition of the structure, the city has requested that the plaintiffs be required to post a monetary bond with the court. Those funds would be used to reimburse DEDA, should it later prevail in its legal efforts to tear down the entire building.
The preservationists previously scraped together a $50,000 bond to secure the building from demolition during the appeals process. But Paul contended that a repair bond — potentially in excess of $200,000 — could be impossible to meet, thereby having a "chilling effect" on the plaintiffs and their legal rights.
Hylden asked that the city provide an estimate within seven days for the costs that would be involved in shoring up the facade and placing a temporary roof on the building.
The judge took the motions under advisement and said he would issue a written ruling, though he did not give a precise timeline.