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A judge has ruled in favor of the city of Pipestone in the lawsuit regarding the historic Calumet Inn. The owners plan to appeal the decision. Photo by Kyle Kuphal
A judge has granted a motion for summary judgment by the city of Pipestone and the city’s former building and zoning official, Doug Fortune, and dismissed all counts in the complaint filed by reVamped LLC, Heliocentrix LLC, Tammy Grubbs and Vanda Smrkovski regarding the Calumet Inn.
Grubbs and Smrkovski filed the complaint against the city and Fortune in November of 2022. They alleged that the city and Fortune violated their due process rights under the 14th Amendment to the U.S. Constitution and violated their 5th Amendment rights by preventing them from using or occupying the Calumet Inn when the city condemned the property and ordered it to be closed from March 10, 2020 to April 30, 2020. They sought monetary damages, attorney’s fees, litigation expenses and other relief and costs deemed appropriate by the court.
In May of this year, attorneys representing the parties involved filed cross motions for summary judgment. Attorney Gregory Erickson, representing Grubbs and Smrkovski, requested the court to issue a judgment asserting all their claims against the city and Fortune. Attorney Paul Reuvers, representing the city and Fortune, requested the court rule in their favor and dismiss the action brought by Grubbs and Smrkovski.
United States District Court Judge Jeffrey M. Bryan indicated in a Dec. 18 order granting the motion for summary judgment by the city and Fortune that the arguments made by Grubbs and Smrkovski “are contrary to law, contrary to the factual record presented to the court, or both.”
Judge Bryan disagreed with the claim by Grubbs and Smrkovski that city policy prevented them from appealing the closure of the building “for several reasons” and concluded that “there was no procedural due process violation in this case.” He wrote that city code includes a right to appeal decisions to close a building to the city council, Minnesota law provides for appeals to the State Building Code Appeals Board, and both city code and state law provide for judicial review of building closure decisions by writ of certiorari, but he found that the record does not show that Grubbs and Smrkovski invoked any of those options.
Judge Bryan also found that the claims that there was no opportunity to contest the determination that the Calumet was an immediate danger or repair identified hazards was “unsupported by legal authority.” He wrote that precedent allows for emergency action in such cases and that there was no evidence “that the Constitution required Fortune or the city to implement additional pre-closure procedures” and that Grubbs and Smrkovski “had several post-closure procedures available to ensure that their interests were not erroneously deprived.”
Regarding the claims against Fortune in his individual capacity, the judge determined that there was no clearly established right that his actions violated and that he is immune as a municipal official.
“Because there is no clearly established right to pre-closure process when a city official issues a closure order under emergency closure authority, such as City Code 151.09 and Rule 1300.0180, Fortune is entitled to qualified immunity from suit in his individual capacity,” according to the order.
Regarding the claim that the city violated the 5th Amendment, Judge Bryan found that “prohibiting use of a property to protect public safety is not a taking.”
“The decision to issue the Building Closure Order cannot constitute a taking given the well-established case law permitting the prohibition of property uses that present a present danger to the public,” according to the order.
Mayor Dan Delaney said the city was pleased with the court’s ruling and that the situation with the building is unfortunate.
“I wish the owners the best of luck,” he said. “Nothing would be more pleasing than to see the Calumet open again for business.”
Erickson said his clients were disappointed with the judge’s order and will be appealing the decision to the 8th Circuit court of appeals. Grubbs added that the owners of the Calumet Inn have no plans to sell the property and are committed to reopening the historic hotel.