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Attorney: ‘Do what’s best for the community’

April 28, 2013
By MARY ANN GREIER - Staff Writer ( , Salem News

SALEM - Brian Macala, the attorney for the owners of the TanFastic building in downtown Salem, said his clients are "more than willing to cooperate and do what's best for the community."

Macala was asked recently about the court case filed by the city in 2011 and for comment on behalf of building owners Timothy and Deborah Smith.

Bricks have been falling from the west wall between the TanFastic building and the Butler museum building on State Street, with both buildings closed and the sidewalk and street below also closed. The building has been a point of discussion by city officials concerned about safety in the downtown, especially with the Salem Super Cruise coming at the end of June. The street and sidewalk have been barricaded since last July.

The Smiths were first sued over the building in June 2009 by the Butler Institute of American Art and the insurer for the Butler building, which is owned by the Salem Art Institute, for damages caused by falling bricks. The museum had been closed since June 2008 and then reopened briefly in 2010 after the lawsuit was settled and repairs were made. With more damage occurring, the museum closed again in 2010 and has remained closed. Funding for the museum comes from the Salem Community Foundation.

The Smiths had been cited by the city fire department in November 2010 regarding the conditions at the TanFastic building, with orders to make repairs or remove the damaged parts. In April 2011, the city filed its case in Columbiana County Common Pleas Court, with both sides reaching a settlement in February 2012 which gave the owners six months to fix the problems. The city ended up reopening the case in September 2012 when no progress was made.

Macala said the point of contention has been the west wall and it was discovered in 2012 that his clients may not be the owners of that wall, that it is a joint wall shared by both buildings and he felt the burden should be shared by both sides. Based on information he said he received from city Law Director Brooke Zellers, he filed a third-party complaint against the Salem Art Institute in December.

He said it appears pretty clear on surveys that the wall is jointly owned, but the Salem Art Institute is denying that claim and countersued, saying the wall belongs to the Smiths. He said the counterclaim by the Salem Art Institute also includes the city, saying the city failed to abate the nuisance.

Macala said they are trying to put together a meeting of the powers that be, sooner rather than later. The court has mandatory mediation scheduled for August, with a pretrial in October and the case set for trial on Nov. 7.

He explained that there are some complications related to just tearing down the building. Number one, there is a mortgage against the building and a lien holder to consider who would lose a secured interest. Number two, there is the demolition cost associated with a commercial building and requirements regarding asbestos. There's been a number thrown around of up to $60,000 for demolition and that does not include the costs for abating asbestos.

"My clients don't have that kind of money," he said.

Macala said they have been shopping for a buyer and there is an interested party that is fully aware of the problems, but he could not divulge who. When asked what their plans may be for the building, he could not say.

"We have always been willing to cooperate with anything we can actually do," he said.

The Smiths have owned the building about 15 years.

Macala said his clients "recognize that this is an obvious eyesore in the middle of the commercial district. They're more than willing to cooperate."

Mayor John Berlin said he started looking at the situation with the wall when he took office in 2012 and thought the wall in question looked like a common wall. He said he looked up the deeds for both buildings and the wall between the buildings was described as a common wall. He turned the information over to Zellers.

Berlin described the city as an "innocent bystander" in this whole situation, noting the city's involvement is due to public safety.

"We don't own either structure and we have bricks hitting the street," he said.

The topic was raised earlier this week in a meeting of the Economic Development Committee of city council.

"The city is trying to get the problem rectified," Berlin said.



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