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Weimer rules in Filsinger property nuisance case

Terms call for 15 day cleanup of designated items

Presiding Cheyenne County District Judge Derek Weimer made a final decision in the City of Sidney’s property nuisance abatement case against Marvin O. Filsinger of Filsinger Excavating and Filsinger Emergency Services this past Wednesday, March 13.

The ongoing case involved the plaintiff (the City of Sidney, represented by Ft. Collins, Colo. Attorney Charlie Cuypers) calling upon the defendant, Marvin Filsinger, (represented by Sidney Attorney Don Miller with co-council from Lincoln Attorney Craig Dirrim) to clean up the “eye-sores” on his property notably dubbed the “Fairgrounds property.”

Although the judge made his ruling, the plaintiff’s attorney chose not to comment on the decision due to a still “active case.”

“Because this is still an active case, I cannot comment,” said Cuypers.

When asked of the defendants’ response to Judge Weimer’s ruling, Filsinger’s attorney Don Miller said, “We are pleased with the decision of the district court’s ruling, and we will continue to work with the city regarding any of these issues.”

Both parties were issued an agreement last spring by Weimer that ordered Filsinger to clean up the public nuisances on his fairgrounds, as well as Illinois St., properties.

The orders had been placed on March 15 2012 by the judge, and required the removal of several items from the establishment.

The city’s attorneys later that year filed a motion against Filsinger stating that he had not complied with orders and city officials wanted permission to abate the property properly.

Evidence was presented by the plaintiff and defendant over the course of the hearings, including emails of correspondence between parties, as well as pictures taken of the property by witness Sidney Police Chief Mike Brown and a video of the property’s transformation over the course of weeks.

Weimer said that he would take all of the information presented, as well as final statements from both parties, into consideration and come to a conclusion in weeks to follow the Feb. 15 court appearance.

According to the court journal entry and orders explaining the judgment announced by Weimer on March 13, the judge granted the plaintiff’s motion to abate public nuisances and “eyesores” on Filsinger’s property and at the same time overruled the motion in part.

In essence the judge ruled that the City of Sidney was not allowed to enter the property to abate Filsinger’s items, but instead Filsinger is required to fulfill certain expectations within 15 days of the entry of the court orders.

“The court finds that, at the time of the filing of the Motion to Abate Public Nuisance, the defendants were not in complete compliance with the judgment previously entered by this court. Therefore, the plaintiff was correct in pursuing this remedy,” said Weimer.

“The defendants, during the pendency of these proceedings, have been diligent in their efforts to bring the real estate into compliance with the judgment,” he continued. “The court declines to order that the plaintiff hire persons to abate the nuisance. Rather, the court holds that this responsibility can and should be that of the defendants.”

“The defendants are ordered to comply with the terms of the orders set out,” explained the judge. “Timeframes for the conclusion of these efforts have also been established herein.”

During a previous hearing Judge Weimer had made it clear to the court that the case was “one of enforcement not establishment,” and that it wasn’t pertaining to whether or not the nuisances exist but instead if Filsinger had abated the property in conformance with the March 15 2012 orders.

Weimer also stated that the idea of enforcement action was pertaining to solely the fairgrounds property, even though other properties had been included in the original orders.

“The defendants have clearly been working to clean up the property and to organize the items stored thereon,” said Weimer. “This is evidenced by the ‘before-and-after’ pictures that have been presented to the court.”

Weimer said that he determined whether the items on the property as of Feb. 15 were in violation of the 2012 order by examining the order as well as provisions of the City of Sidney City Code.

“The orders require that the defendants remove ‘all inoperative, disassembled, wrecked or junked trucks, trailers, construction equipment, tractors, farm equipment, used tires, utility poles, demolition debris, used lumber, barrels, tanks, and scrap metal’ from the property,” said Weimer. “The evidence before the court is that the trucks, trailers, construction equipment, tractors and farm equipment being stored at this location are operable. The pictures before the court show that these items are not disassembled, wrecked or junked.”

Judge Weimer therefore found that those wheeled equipment items are in compliance.

“They are not in pristine condition, but considering the type of work in which they are used, they seem to be in reasonably decent shape,” he said. “The court finds that the defendants storage of the trucks, trailers, construction equipment, tractors and farm equipment on this property is not in violation of this paragraph and provision of the order.”

The above findings however do not cover the ordered removal of all used tires, lumber, barrels, tanks, scrap metal, utility poles and demolition debris.

Weimer said that the evidence presented did not show utility poles or demolition debris and that the tanks in the evidence appeared to be attached to equipment that Filsinger used in his excavation, towing and derailment services.

The judge said that only one barrel appeared to be left and that the used tires, lumber and scrap metal were being stored in “a reasonably orderly fashion.

“The used tires appeared to be stored on the bed of a trailer. The used lumber was in a pile, but it was reasonably neat,” said Weimer. “The scrap metal was stored on open-air racks. The defendant, Marvin Filsinger, testified that he uses the tires to put on equipment that he uses when needed. He testified that the lumber was used to replace old or worn-out decking on trailers. He also testified that the scrap iron was used to make repairs to equipment or to fabricate items for sale or use in his business.”

Although Filsinger has made many changes, Weimer found that they were not all in compliance with the previous orders.

“Notwithstanding these uses, the order at issue compels the defendants to remove all of these items. Therefore, the court finds that the continued storage of the used tires, the used lumber and scrap metal is in violation of this paragraph and provision of the order,” he said.

Weimer gave the defendant 15 days from the entry of the orders on March 13, 2013 to remove the items in question.

As for the part of the abatement of the nuisance order requiring Filsinger to “remove from the property ‘all machines, trucks, trailers, construction equipment, tractors, farm equipment, and parts thereof that are inoperative or unable to perform their intended function, have lost their identity, character, utility, or serviceability through deterioration, dismantling, or the ravages of time, or which have been cast off, discarded, thrown away or left as waste, wreckage, or junk’” – Weimer stated that there was insufficient evidence as to whether the items on the property were in such a condition as deteriorating and unusable.

Weimer said that another order that had been previously discussed was that the defendant could only store or permit to be stored “machines, trucks, trailers, construction equipment, tractors, farm equipment and parts thereof” on his property if the storage procedure complied with the City of Sidney’s City Code.

“The code provision is designed to prohibit the storage of unlicensed vehicles or parts on real estate except for four specifically excepted reasons,” he said. “The court has reviewed these reasons and finds that none of the reasons found in the code are applicable to this situation. Therefore, this code provision will require that all of the vehicles being stored on the real estate be licensed.”

According to Judge Weimer, Filsinger had previously testified that all of his equipment and vehicles were properly licensed with the exception of one of his trailers.

Filsinger had stated at a previous hearing that he believed that he had lost the title to the trailer and that he was attempting to have the title replaced to gain the license to the trailer so that all was in compliance.

“To comply with this provision, the defendants will be ordered to provide to the plaintiff’s counsel copies of all licenses for all vehicles or equipment stored on the property within 15 days of the entry of this form,” the judge proclaimed.

“For the trailer that is currently unlicensed, the defendants are, within 15 days of the entry of this order, to take all necessary steps to have a new title issued,” he said.

“Defendants’ counsel is to keep plaintiff’s counsel apprised of these efforts. If the trailer cannot or will not be licensed within 45 days of the entry of this order, then this trailer is to be relocated from this property.”

Weimer wanted to make it clear that the initial orders were never meant to hinder any of Filsinger’s businesses.

“The judgment reflects that the purpose of the stipulations was not to preclude the defendants from engaging in their lawful business activities or to prevent them from using the real estate for such lawful purposes,” he said.

“The evidence before the court establishes that the majority of the equipment being stored on this real estate is used in the defendants’ excavation, derailment, wrecker and towing services. In that regard, this paragraph would allow such storage so long as the equipment being stored is operational and licensed.”

Weimer said that additional testimony from Filsinger also explained that there was equipment on the fairgrounds property that was used in the defendants’ “agricultural or farming pursuits.”

“There was a tractor there and at least one trailer that was used primarily for hauling the defendant, Filsinger’s, grain to market,” said Judge Weimer.

The judge ruled that any remaining equipment on the property that was used primarily for farming related purposes be relocated off the fairgrounds property.

“The defendants are given 15 days from the entry of these orders to remove and relocate these pieces of equipment,” he said.

 

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