City's claim against New Vision dismissed
WORTHINGTON -- Fifth Judicial Court Judge Jeffrey Flynn issued an order Monday dismissing the City of Worthington's claim against New Vision Cooperative and General Manager Frank McDowell regarding the vacant structure formerly used as a grain elevator on 10th Avenue. The judge also granted a summary judgment order against Ruby Development LLC, giving the company 90 days to file an abatement plan of the nuisance with the city.
According to the order filed in Nobles County District Court, the city had sought a summary judgment motion in April compelling Ruby to file an abatement plan. The city alleges that in 2002, New Vision was informed the structure was considered a public nuisance after citizen complaints. In September 2007, the city passed a resolution declaring the structure as such. Mayor Alan Oberloh signed an order of abatement, requiring New Vision to file a plan of abatement within two months.
But New Vision had transferred ownership of the property to Ruby in July 2007. Not a conventional sale, according to the order, New Vision actually paid Ruby $50,000 to take the title to the property. New Vision claims that because it no longer owns the structure, it is legally impossible for them to abate the nuisance. Ruby, however, denies the structure is a nuisance and claims the city has failed to deal with them in good faith.
Flynn made it clear that his order does not involve a judicial determination on whether or not the property constitutes a nuisance.
"This court is not authorized to substitute its judgment for or 'second-guess' the City of Worthington's determination that the 10th Avenue structure constitutes a nuisance," the order states. "The city has already made that determination."
The city, the order states, apparently believes Ruby is without funds, and wants the court to determine New Vision is still "on the hook" for costs associated with the structure. The city submitted the argument that New Vision, faced with a substantial abatement cost, "conveyed away the property to a financially irresponsible owner with the end result that the City will ultimately bear the cost of demolishing the structure." New Vision claimed that the property was not officially labeled a nuisance until two months after it was transferred to Ruby.
In a memorandum submitted in opposition to the city's motion for summary judgment, Ruby stated it had submitted an abatement plan to the city. But the city claims no such plan was ever presented.
"Apparently Stuart Carleton, the owner of Ruby, and the City of Worthington have different views as to what the proper procedure is when filing an abatement plan, or for that matter, what constitutes an appropriate 'plan of abatement,'" Flynn wrote.
If a plan is filed and the city rejects it or disputes the appropriateness of the plan, Flynn added, Ruby may return to court for a determination on whether the city has acted arbitrarily or capriciously in rejecting the proposal, either because proper procedure was not followed or because the plan filed was inadequate.
Flynn acknowledged that several of the parties involved in the case have requested relief for attorney fees, but denied all such motions.
"Any party intent upon obtaining such relief should file a specific motion setting forth the exact relief sought and shall support such motion by affidavit detailing the factual basis for entitlement to such relief," Flynn concluded.