04-0078R

RESOLUTION AFFIRMING THE DECISION OF THE BUILDING APPEAL BOARD UPHOLDING AN ORDER CONDEMNING FOR HABITATION DWELLING UNITS LOCATED AT 321-23 WEST FIRST STREET, DULUTH, MINNESOTA.

BY COUNCILOR LITTLE:

WHEREAS, on August 26, 2003, the city building official issued an order condemning for habitation the apartment units located at 321-23 West First Street, which order required the apartment units to be vacated no later than October 1, 2003, and which order was sent by certified mail to the owners of the property on August 26, 2003; and

WHEREAS, on September 2, 2003, Marne Guthrie, an owner of the property, accepted delivery of the order; and

WHEREAS, on September 10, 2003, Marne Guthrie, appealed the condemnation order to the building appeal board and requested an extension of time to vacate occupied apartment units and an extension of time to correct the housing code violations which formed the factual support for the condemnation order; and

WHEREAS, at its meeting of October 8, 2003, the building appeal board was informed that the apartment units subject to the condemnation order were not currently licensed for rental as required by Duluth City Code Section 29A-28; and

WHEREAS, at the hearing before the building appeal board, the owners did not dispute that the apartment units were not licensed for rental and were currently occupied in violation of Duluth City Code Section 29A-28; and

WHEREAS, at the hearing before the building appeal board, the owners did not dispute the existence of the housing code violations which supported the condemnation order, nor did the owners present any evidence that the apartment units were safe for human occupancy; and

WHEREAS, at its meeting of October 8, 2003, the building appeal board found that the board lacked authority to waive City Code rental licensing requirements and lacked the authority to allow the owners to continue to rent apartment units without license; and

WHEREAS, at its meeting of October 8, 2003, the building appeal board found that the request for an extension of time to correct housing code violations was moot because the condemnation order did not mandate a deadline for correction nor did the order prevent the owners from correcting the code violations; and

WHEREAS, at its meeting of October 8, 2003, the building appeal board denied the appeal on the grounds that it lacked authority to grant an extension of time to vacate the building and that the request for an extension of time to correct housing code violations was moot; and

WHEREAS, Marne Guthrie has appealed the decision of the building appeal board and seeks an extension of time to vacate the apartment units; and

WHEREAS, a hearing on the appeal was conducted on January 29, 2004, by the city council pubic safety committee.

NOW, THEREFORE, BE IT RESOLVED, that based on the record before it consisting of city records, evidence offered by the owner and city personnel, the public safety committee proceedings and the city council proceedings, the October 8, 2003, decision of the building appeal board is hereby affirmed on the following grounds and reasons:
(a) The apartment units which are subject to the condemnation order are dangerous to the life, health, property and safety of the public and the occupants of the units, and the owners have been aware of the need to correct the serious violation since being advised of such violations on May 2, 2002; and
(b) The time period of May 2, 2002, to the present provided the owners with sufficient time to correct the serious housing code violations that threaten the public safety, the occupants of the building and the lives of public safety personnel if such personnel are required to suppress a fire at this building; and
(c) The city council is without authority to authorize unlicensed rental occupancy of the apartment units; and
(d) The order does not prevent the owner from correcting the housing code violations and does not mandate a deadline for completing corrections; therefore, to the extent the owner is seeking an extension of time to correct the housing code violations, such request is moot and no relief from the terms of the order is required; and
(e) By filing this appeal the owners have already received an extension of time to comply with the order in excess of 90 days.


STATEMENT OF PURPOSE:  This resolution affirms the decision of the building appeal board denying Paul and Marne's appeal of a August 23, 2003, order of the building official which condemned for habitation unlicensed residential rental dwelling units located at the Pioneer building, 321-23 West First Street, Duluth, Minnesota. In their appeal, the owners requested a time extension to comply with the requirement that the residential dwelling units be vacated no later than October 2, 2003. The owners further requested an extension of time to correct housing code violations noted in a housing inspector's May 2, 2002, inspection report. Jurisdiction for this appeal is provided as specified in Duluth City Code Chapter 29A, Section 5, and Duluth City Code Chapter 10, Section 5(c)(2).