Judge affirms Borough's determination of Wrangell Ave. home as 'dangerous building'

On Jan. 16, Superior Court Judge Philip M. Pallenberg issued his decision affirming the Borough’s determination that a Wrangell Ave. home owned by Karen Ellingstad and Fred Triem is a “dangerous building” according to municipal code.

The ruling comes after more than two years of back-and-forth about the structure’s fate between the owners and the Borough culminating in the homeowner’s filing a notice of appeal in Superior Court on Jan. 2, 2014. The appeal was in response to a non-compliance hearing held Dec. 2, 2013 in which the Borough Assembly voted 5-0 to adopt a recommendation made by then-Community Development Director Leo Luczak to have the home demolished or renovated, at the owner’s expense, within 30 days, because it was a “dangerous building” based on four specific findings.

According to court documents, Ellingstad and Triem argued that “the Borough denied them procedural due process in several respects” including lack of adequate notice of the non-compliance hearing and failure to provide Luczak’s report to them before or during the hearing.

In response, Judge Pallenberg wrote in his decision, “Ellingstad and Triem seem to argue that a municipal assembly must observe all of the formalities normally found in a court hearing…As such, their arguments fail to recognize the realities of small towns in Alaska.”

However, Pallenberg also wrote that he had “significant concerns about the fairness of the process followed before the Assembly,” citing the Assembly’s failure to share Luczak’s documents with the homeowners and Luczak’s failure to appear and testify at the hearing as required in the municipal code.

“Despite these concerns…I find that any error in the procedure followed below was harmless,” Pallenberg wrote in his decision, adding that appellants must show they were prejudiced by the violation.

“They (Ellingstad and Triem) devote almost the entirety of their arguments on appeal to explaining how their due process rights were violated. But they do not make any argument as to how the outcome of the hearing would have been different if they had been given the process which they claim was due,” Pallenberg concluded.