Judge to allow new evidence in Kozy case
The court will receive updated expert opinions on the condition and feasibility of saving the Pastoret Terrace building before again deciding whether to shield it from demolition.
Judge Eric Hylden wants to hear evidence of how the November 2020 fire at downtown Duluth's Pastoret Terrace, formerly home to the Kozy Bar and Apartments, has affected the feasibility of preserving the historic, but severely damaged building.
Hylden granted a motion from the city of Duluth and Duluth Economic Development Authority to reopen the trial record and consider information that was not available when he first heard three days of testimony in April 2019.
The judge has been tasked with conducting a new analysis of whether the building should be protected from demolition. Hylden in October 2019 concluded there was no viable path forward for the structure, but the Minnesota Court of Appeals in August 2020 overturned his decision on the basis that it was erroneously based entirely on economic factors.
Pastoret Terrace was designed by renowned architect Oliver Traphagen and constructed in 1887 as six luxury townhouses, long before it was converted to a bar and roughly 50 efficiency apartments. Sitting at the corner of First Street and Second Avenue East, it has been condemned for human habitation since the first of a series of fires occurred in 2010.
DEDA acquired the building after Ringsred, who lacked fire insurance, lost it to tax forfeiture, and authorities have sought to have it demolished after concluding that there were no viable path toward restoration.
Hylden, following the Court of Appeals mandate that the structure be preserved against any further deterioration while litigation continues, ordered DEDA in January to erect an exterior bracing system to prevent the outward collapse of the First Street brick facade.
But that work still hasn't been completed 11 months later, as the preservationists have been unable to post a $140,000 bond that was ordered by the court to shield the agency from any losses, should it ultimately prevail in the long legal battle.
The city and DEDA argued that the record should be reopened so that Hylden can consider expert opinions regarding the building's current historic significance, structural condition and the "consequences for and risks to health, safety and welfare presented by the property's challenged condition."
Attorneys for the plaintiffs contended that would be improper under the appellate court's mandate, saying the city was seeking a "second bite out of their affirmative defense apple" and that they had not in the past year produced any evidence that would lead to a different outcome when Hylden again decides the case.
The judge took little time to rule after hearing arguments Monday. His three-page order was dated Tuesday and added to the public file Thursday.
"Given the potentially changed circumstances caused by the second fire at the property, the passage of time or other reasons, the court feels the need to by fully informed regarding the current conditions of the property before addressing the remand instructions," Hylden wrote.
"To accomplish this the court will need to reopen the record. Otherwise, the court believe it would approach the task given by the Court of Appeals partially blind. On reopening, this will not be a repeat of the 2019 trial; instead, the court will only be interested in evidence that has arisen since the last trial and would address the remand instructions. This means any facts that would go to the affirmative defense presented by defendants, and specially whether there are non-economic considerations at issue."
It's not yet clear whether additional evidence will be submitted through live testimony or submitted reports. Hylden set a Jan. 13 scheduling conference with attorneys to determine logistics and a briefing schedule for final arguments.