Published: October 28, 2009 12:07 am      

Judge OKs demolition of crumbling cottage

CRESSON — Judge David Tulowitzki on Tuesday rejected a last-ditch effort of the Cresson Area Historical Association to halt demolition of the historic but crumbling Braemar-Jones Cottage.

Tulowitzki’s refusal to issue an injunction blocking the demolition allows the township to immediately begin razing the structure, which dates back to the late 1800s. It had been declared a public nuisance in January as a fire/safety hazard.

Cresson Township officials said the structure could be brought down as early as this week.

“We are going to be able to move ahead,” Supervisor Gary Bradley said Tuesday. “We’re under a court order to do this before Nov. 15.”

Although the association on Tuesday afternoon asked for the judge to put a stay – or temporary hold – on his order, that should not delay the razing unless Tulowitzki or another judge signs an order granting a stay.

“We will abide by the most current order, and that is to demolish it by Nov. 15,” township Solicitor Gerald Neugebauer said.

Timothy Burns, the association’s attorney, filed a notice of appeal to state Commonwealth Court. He wants the stay pending the outcome there.

Brenda Kalwasinski, president of the historical association, said every delay buys more time.

“As long as it’s standing, I’m optimistic,” she said. “I don’t give up very easily.”

Tulowitzki’s ruling came a day after association members filed a petition asking for a delay until after Nov. 15, the date which the association thought was the earliest the township could proceed.

But the judge rejected that notion, saying an agreement by the two parties had only extended the deadline for completing the demolition to Nov. 15 from Sept. 9.

“To suggest (the township) must wait until after Nov. 15 to accomplish the demolition runs in direct contravention of the clear language of the Jan. 9 order as well as the parties’ subsequent agreement,” Tulowitzki said.

In the three-page order, he also disagreed with the association that the demolition has to be done solely by a controlled burn. Initially, his order did give the township a go-ahead for a controlled burn by the fire company. But the fire company said later it could not do that under recent regulatory changes.

The association, which had prior notice of the change in how the structure would be razed, had not filed any objection with the court, the judge said. The association’s “silence confirmed the alternative method of demolition ... The method of demolition is not germane to the ultimate underlying issue of the court’s finding of a nuisance and authorized of abatement of the same,” he said.

In addition, Tulowitzki rejected the association’s suggestion that it has not had sufficient time to remove various architectural elements from the historic structure. His January order gave the association “full and complete opportunity to enter and remove from the declared nuisance anything or things whatsoever prior to demolition,” he said.

The association should have been aware that the demolition could occur anytime after Sept. 9, and any delay in removing anything from the building was at the association’s “own peril,” Tulowitzki said.

Neugebauer said the ruling was what local officials expected.

“We’re not happy about the demolition, but we have an obligation to fulfill the wishes of our citizens,” he said.

The structure once was believed to have been the summer home of steel magnate Andrew Carnegie, but it now is thought to have belonged to another steel executive, Benjamin F. Jones.

The association, which had held the title to the property for two decades, has struggled for years to find funds to restore the structure.

Supervisor Scott Decoskey praised the association members for their efforts, saying they launched a good fight, but the money for the work was not available.

“It’s too bad they didn’t give it this kind of effort 20 years ago,” he said. “I think we’ve waited long enough and given them plenty of opportunities.”

Township officials have been dealing with neighbors’ complaints about the building since at least 2005. The court battle dates back to November 2006, when the township sought permission to “abate the nuisance.”

Burns also said that he is seeking details from the township under the state’s Right to Know law about any contract and bidding procedures for the demolition work.

Neugebauer said he is confident no public information or sunshine laws have been broken.

“We have a court order and a guy came forward and said he was going to do it,” he said. “We don’t have a contract with anyone.”

The work will be done without charge to the township, and any related costs will be far below the $10,000 limit for bidding in the state, he said.