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Litigation still pending for building at Third and Main

Third Avenue west of North Main Street has been closed ever since the collapse of the side of the building on the north side of Third Avenue. (Matt Gade / Republic)1 / 2
Third Avenue west of North Main Street has been closed ever since the collapse of the side of the building on the north side of Third Avenue. (Matt Gade / Republic)2 / 2

The road at the corner of Third Avenue and Main Street has been closed for more than a year, and it's not likely to open any time soon.

Last week, the judge originally assigned to the case concerning the now-110-year-old, crumbling building on the corner recused himself, and a hearing originally scheduled to take place Tuesday was pushed back to Nov. 1.

The city closed the road in August 2017 when the building, owned by David Finnell, began to fall apart, leaving a gaping hole in its south side, which is thought to have been caused by deterioration of the building over the years, rather than by one single event.

"Really, that's kind of been the extent of the safety precautions that the city's required," City Attorney Justin Johnson said. "I don't believe that the property owner has gone above and beyond what the city's required."

Finnell's attorney, R. Shawn Tornow, said his client is not to blame for the street closing.

"Certainly, Mr. Finnell doesn't believe it's necessary to have Third (Avenue) closed and is more than willing to do the work necessary on the outside of the building so that Third (Avenue) can be opened up," Tornow said. "The decision to close Third (Avenue) was not my client's decision. That was the city."

The city issued Finnell an order to correct on Oct. 31, 2017. The order said that Finnell's property violated city code in six ways, including failure to maintain exterior appearance, the presence of pests, obstruction of traffic on West Third Avenue and unsightly conditions which lowered the value of neighboring real estate.

Finnell was ordered to correct the violations within two weeks of receiving the order by fixing the hole on the side of the building to city and building code standards and fixing all windows and holes to prevent additional vermin from getting into the building.

The city then filed a complaint against Finnell on June 12, asserting he had not complied with the order and that the building was, in comparison to when the order to correct was issued, "in as bad or worse condition, as of the time of filing," according to a report from the city code enforcement officer finished the day before the complaint was filed.

The complaint requested that the court allow the city to raze and remove the structures on the property, dispose of all the materials, restore the property "to a non-nuisance condition," and require Finnell to reimburse the city for the costs of doing so.

According to Johnson, from the time the complaint was filed, Finnell had 30 days to take action. With two days to spare, Finnell and Tornow, filed a motion to dismiss the litigation. The hearing originally scheduled for Tuesday and moved to November will address that motion, which says that the complaint didn't properly establish jurisdiction for the case or follow statutes "regarding preservation of historic buildings within the Mitchell Historic Commercial District."

Johnson's Sept. 12 brief in opposition to the motion to dismiss argued that the complaint properly identifies the jurisdiction and that state laws don't preclude this lawsuit.

The motions hearing was rescheduled because presiding Judge Patrick Smith recused himself from the case. Both Johnson and Tornow said they believed Smith recused himself because Smith had experience with Finnell when he was a prosecutor. Smith did not respond to a request for comment.

In the hopes that Finnell would fix up the building on his own after receiving the order, the city did not take any action to solve the code violations and is opting to wait until litigation ends before potentially either cleaning up or tearing down the building, meaning that unless Finnell decides to do repairs in the meantime, the building will continue to sit as-is.

"Unfortunately, we kind of just have to let the legal process play itself out here," Johnson said. "I certainly wish I could make it go faster, but it's just not something that takes place overnight."

Tornow, meanwhile, asserts that his client can't work on the building, even though he wants to.

"Mr. Finnell has been and continues to be willing to work with the city in order to come up with the mutually agreeable resolution to any building repairs that may be actually necessary," Tornow said. "However, at this point, Mr. Finnell has essentially been cut off from doing additional work on the building, because the city elected to not renew a building permit, for some reason."

Johnson said that as far as he knows, Finnell never formally tried to either renew his permit or request a new one since his previous permit expired.

"Since the structural engineer completed their assessment in April, Mr. Finnell has never presented a plan for reconstruction or demolition that addresses the issues that were identified," Johnson said. "If Mr. Finnell was told anything informally, it was that he needed to address those issues for any new permit request he makes."