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HomeMy WebLinkAbout2001-08-15 CA Ltr to WC Forwarding Document for Filing & Documents LAW OFFICES OF Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P. 1835 Northwestern Avenue James F. Lammers Stillwater, Minnesota 55082 Paul A. Wolff Robert G. Briggs * (1944 -1996) Mark J. Vierling • (651) 439 -2878 Thomas J. Weidner •+ Lyle J. Eckberg Susan D. Olson + FAX (651) 439 -2923 Of Counsel David K. Snyder •Qualified Neutral Arbitrator Timothy M. Kelley Writer's Direct Dial: (651) 351 - 2118 *Certified Real Estate Specialist +Qualified Neutral Mediator August 15, 2001 Court Administrator ® Civil Court Division EDy Washington County Government Center 14949 - 62nd Street North P.O. Box 3802 Stillwater, Minnesota 55082 Re: In re the Matter of the Hazardous Building or Structure Locate at 3887 Beach Road, Oak Park Heights, Minnesota Court File No. C4 -01 -4448 Dear Administrator: Enclosed herewith for filing in regards to the above - referenced matter please find the following: 1. Notice of Motion and Motion for Summary Judgment; 2. Affidavit of Jim Butler, Oak Park Heights' Building Official; 3. Oak Park Heights Memorandum of Law in Support of Its Motion for Summary Judgment; 4. Proposed Order Granting Oak Park -`ghts' Mot •n for Summary Judgment; and, 5. Affidavit of Service by Mail. ours v -� • �. ark J. Vierling MJV /sdb Enclosure cc: Kimberly Kamper © 0 FY STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: Other In Re: Court File No.: The Matter of the Hazardous Building NOTICE OF MOTION or structure located at 5887 Beach Road AND MOTION FOR Oak Park Heights, Minnesota SUMMARY JUDGMENT TO: Mr. Jerry Bjorkman c/o Ava Bjorkman, 5663 O'Brien Ave. No., Oak Park Heights, MN 55082, and their attorney Mr. Karl M. Ranum, Ranum Law Offices, 104 North Main Street, Stillwater, MN 55082, and Allstate Insurance Company c/o Mr. Lee Magel, P.O. Box 1490, Minneapolis, MN 5540 and 965 Prairie Center Drive, Eden Prairie, MN 55344 PLEASE TAKE NOTICE that the City of Oak Park Heights will move before the Honorable Kenneth J. Maas, Judge of Washington County District Court on the 25 day of September, 2001 at 1:00 p.m. or as soon thereafter as counsel may be heard, at the Washington County Government Center, 14949 62 Street North, Stillwater, Minnesota for an Order granting Plaintiff's Motion for Summary Judgment pursuant to Minn.R.Civ.P. 56 in the City's favor for the relief demanded in the complaint. There is no genuine issue in this case as to any material fact, and the City is entitled to judgment as a matter of law. This motion is based on the attached Memorandum of Law, Exhibits and the affidavits of Timothy M. Kelley. ECKBERG, L e ERS, B •. GS, WOLFF, : IERL ► . Dated: 8 - i 3 �/ By: Mark . ierling, #112823 Timothy M. Kelley, #303847 Attorneys for Plaintiff 1835 Northwestern Avenue Stillwater, MN 55082 (651)- 439 -2878 ACKNOWLEDGMENT Pursuant to Minn. Stat. §549.211, the party or parties represented by the undersigned attorneys acknowledge(s) that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party or parties for actions in bad faith; the assertion of a claim or a defense that is frivolous and that is costly to the other party; the assertion of an unfounded position solely to delay the ordinary course of the proceedings or to harass; or the commission of a fraud upon the Court. Dated: g - /j ' ECKB , LAMMERS % 'i GGS, WO ' & V 1 :1 P.L.L.P. By: Mark J. Vierling, #11 Timothy M. Kelley, #303847 Attorneys for City of Oak Park Heights 1835 Northwestern Avenue Stillwater, Minnesota 55082 (651) 439 -2878 • ACKNOWLEDGMENT Pursuant to Minn. Stat. §549.211, the party or parties represented by the undersigned attorneys acknowledge(s) that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party or parties for actions in bad faith; the assertion of a claim or a defense that is frivolous and that is costly to the other party; the assertion of an unfounded position solely to delay the ordinary course of the proceedings or to harass; or the commission of a fraud upon the Court. Dated this 13 day of August, 2001. ECKBERG, , BRIGGS, WOL 1 RLING, P.L.L.P. J. Vierling Attorneys for City of Oak Park Heights 1835 Northwestern Avenue Stillwater, Minnesota 55082 (651) 439 -2878 Attorney I.D. 112823 © 0 PY STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: Other In Re: Court File No.: The Matter of the Hazardous Building OAK PARK HEIGHTS or structure located at 5887 Beach Road MEMORANDUM OF Oak Park Heights, Minnesota LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT INTRODUCTION RULE 115.03 STATEMENT I. ISSUES UPON WHICH SUMMARY JUDGMENT IS APPROPRIATE The City is entitled to summary judgment as a matter of law because the property that is the subject of this litigation is a hazardous building as defined in Minn. Stat. §463.15, Subd. 3 and this Court should order the owner of the property to destroy the hazardous building under the authority Minn. Stat. §463.20. II. DOCUMENTS SUPPORTING THIS MOTION (1) Exhibit A: Order (2) Exhibit B: Affidavit of Jim Butler, City Building Official III. STATEMENT OF UNDISPUTED MATERIAL FACTS The owners of the property are Jerry Bjorkman and Ava Bjorkman ( "Bjorkmans "). (See Kelley Aff., at Ex. 1.) On April 4, 2001, a fire rendered the Bjorkman's dwelling, located at 5887 Beach Road, structurally unsafe. (See Butler Affidavit, at 1.) According to Jim Butler ( "Butler "), the City of Oak Park Height's Building Official, the "remaining structure qualifies as a hazardous building and presents a safety hazard to the public." (Id.) • Butler discovered that the fire had gutted the entire structure; he noted the following hazards: (1) 65% of the roof structure was completely burned off, and the remaining 35% is structurally unsound; (2) 55% of the second floor wall and floor system had fallen into the first floor, which caused the exterior walls to bow to the outside and therefore not provide support for the remaining walls on the second floor; (3) the West deck on the second floor was burned off completely; (4) the fire left the East deck on the second floor structurally unsafe; (5) all exterior walls on the first floor are bowed out due to the collapse of the second floor system; (6) the first floor beams and supports have been damaged by fire; and (7) the block foundation integrity has been compromised due to the fire damage. Butler concluded that "the entire structure must be removed. [T]his structure is beyond repair." (See id. at 1 -2.) ARGUMENT I. STANDARD FOR SUMMARY JUDGMENT Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Minn.R.Civ.P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). When a motion is made and supported, an adverse party may not rest upon mere averments or pleadings, but must present specific facts showing the existence of a genuine issue for trial. Minn.R.Civ.P. 56.05; DLH, 566 N.W.2d at 69. No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." DLH, 566 N.W.2d at 69 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 2 (1986)). There is no genuine issue of material fact for trial if "the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions." DLH, 566 N.W.2d at 71. A genuine issue for trial must be established by substantial evidence. Id. at 69 -70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (Minn. 1976)). Applying that standard in the instant case, Plaintiff is entitled to summary judgment as amatter of law because no genuine issue of material fact exists. II. THIS COURT SHOULD GRANT THE CITY'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE IS NO DISPUTE THAT THE DWELLING IS A HAZARDOUS BUILDING AND A HAZARD TO PUBLIC SAFETY AND HEALTH. A hazardous building is "any building or property, which because of inadequate maintenance, dilapidation, physical damage, unsanitary condition, or abandonment, constitutes a fire hazard or a hazard to public safety or health." MINN. STAT. 463.15, SuBD. 3 (2000). Butler's affidavit establishes without question that the property involved in this action is a hazardous building. Butler discovered that the fire had gutted the entire structure; he also noted the following hazards: (1) 65% of the roof structure was completely burned off, and the remaining 35% is structurally unsound; (2) 55% of the second floor wall and floor system had fallen into the first floor, which caused the exterior walls to bow to the outside and therefore not provide support for the remaining walls on the second floor; (3) the West deck on the second floor was burned off completely; (4) the fire left the East deck on the second floor structurally unsafe; (5) all exterior walls on the first floor are bowed out due to the collapse of the second floor system; (6) the first floor beams and supports have been damaged by fire; and (7) the block foundation integrity has been compromised due to the fire damage. (See Butler Aff. at 1.) 3 Additionally, Butler found that the fascia and soffits were burnt out, which permits animals to enter into the dwelling and that it had no electricity, water, sanitary facilities or heat. (Butler Aff. At 2.) Clearly, the physical damage caused by the fire has rendered the dwelling a hazardous building and a hazard to public health and safety. Pursuant to Minn. Stat. §463.16, the City has the authority to order the owner of any hazardous building within the municipality to raze or remove the building. Because no dispute exists as to any material fact in this case, this Court should sustain the City's Order and grant the City's Motion for Summary Judgment and order the Bjorkmans to destroy and remove the dwelling and all personal or real property. CONCLUSION The evidence in this case establishes that no genuine issue of material fact exists as to whether the Bjorkman property is a hazardous building and a hazard to public safety and health. Because no dispute exists, the City respectfully requests that this Court order the Bjorkman's to destroy their hazardous dwelling. ECKBE • ', LAMMERS, BRIG ., OL , & VIERLIN Dated: g 3 ` ° By: Mark J. Vierlin , #112823 Timothy M. Kelley, #303847 Attorneys for City of Oak Park Heights 1835 Northwestern Avenue Stillwater, MN 55082 (651)- 439 -2878 4 . C 0 PV STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: Other In Re: Court File No.: The Matter of the Hazardous Building AFFIDAVIT OF or structure located at 5887 Beach Road JIM BUTLER, OAK Oak Park Heights, Minnesota HEIGHTS' BUILDING OFFICIAL STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) Jim Butler, being duly sworn upon oath deposes and states: 1. I make this affidavit in support of the City of Oak Park Heights' Motion for Summary Judgment in the above - entitled matter. I am the Building Official for the City of Oak Park Heights. I have been the City's building inspector since June 9, 1992. 2. On April 4, 2001, a tragic fire occurred at the dwelling located at 5887 Beach Road, Oak Park Heights, MN. As the City's building inspector, I viewed the property to determine whether it qualified as a hazardous building and a hazard to public health and safety under Minn. Stat. §463.15. Based on my inspection, I concluded that the dwelling is a hazardous building and a hazard to public health and safety. 3. I based my conclusion on the following: (1) 65% of the roof structure was completely burned off, and the remaining 35% is structurally unsound; (2) 55% of the second floor wall and floor system had fallen into the first floor, which caused the exterior walls to bow to the outside and therefore not provide support for the remaining interior walls on the second floor and the remaining roof structure. (3) the West deck on the second floor was burned off completely; (4) the fire left the East deck on the second floor structurally unsafe; (5) all exterior walls on the first floor are bowed out due to the collapse of the second floor system; (6) the first floor beams and supports have been damaged by fire; and s the block foundation integrity has been compromised due to the fire damage. 4. In my opinion the conditions listed in paragraph 3 create a hazard to public health and safety. 5. Additionally, I have seen that the fascia and soffits are burnt out and the entire building is open which permits animals to enter into the dwelling. This condition is also a hazard to public health and safety and an attractive nuisance to children in the neighborhood. 6. The siding and window conditions are also severely burnt, broken and are in disrepair which creates a hazard to the public health and safety. 7. Finally, the dwelling has no electricity, water, sanitary facilities or heat. 8. Based on the conditions discussed below, I conclude the dwelling is a hazardous building and a hazard to public safety. The dwelling must be removed and is beyond the ability to repair. Annexed hereto are photographs of the structure in its present condition. FURTHER AFFIANT SAYETH NOT Jim But Subscribed to and sworn to before me on this day L g of , 2001. N u. `11te �U ary Public . .4411 s p JULIE A. HULTMAN NOTARY PLOW-MINNESOTA . °. My Conflssion Expires Jn. 31.2005 V` • v . ��� d I 4 • � M kt d x Y � c Y , fi E ' ' ; N f . , „ a Y frt d I Y 7 t �. !t"�P 4 . .' r r! • - i x F sa g e pF 4-.-3- N r S . e r t `i` .. ,. 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This Court orders that judgment be entered for the City of Oak Park Heights against Jerry Bjorkman and Ava Bjorkman and Allstate Insurance Company. This Court orders that the Bjorkmans shall destroy and remove the dwelling and all personal or real property located at 5887 Beach Road, Oak Park Heights, MN 55082 within 30 days of the Court's Order. If the Bjorkmans fail to follow the Court's Order the City of Oak Park Heights shall have the authority to destroy and remove the dwelling and all personal or real property located at 5887 Beach Road, Oak Park Heights, MN 55082 by eminent domain as provided in Minn. Stat. §463.152. Dated: Judge of District Court