Brown and Filsinger take the stand

The second hearing of the City of Sidney’s property nuisance abatement case against Marvin O. Filsinger of Filsinger Excavating and Filsinger Emergency Services drew much interrogation of both Police Chief Mike Brown as well as Filsinger himself.

The case continued before Cheyenne County District Judge Derek Weimer on Wednesday at 1 p.m. within the county courthouse.

Representing the city was Ft. Collins, Colo. Attorney Charlie Cuypers with City of Sidney City Manager Gary Person and Sidney City Attorney J. Leef also in attendance.

The case involves an agreement by both parties last spring that apparently asked Filsinger to remove and “eyesore” or public nuisances on his Illinois St. property as well as his fairgrounds property.

Weimer had placed orders on March 15 regarding the removal of those items. A motion was filed against Filsinger stating that he had not complied with orders and city officials wanted permission to abate the property properly.

At the hearing weeks prior, evidence was presented by the Plaintiff, including emails of correspondence between parties, as well as pictures taken the day before of the property by witness Sidney Police Chief Mike Brown.

At Wednesday’s hearing Filsinger’s counsel, Sidney Attorney Don Miller, requested a continuance on the matter for the second hearing in a row, claiming that he and his client had not been properly consulted on the items to abate and that he had been denied some discovery from the Plaintiff.

Miller also said that he had taken some photographs of the property that day and had not had the chance to print them out yet to update the court on the property’s condition.

Cuypers responded that they had presented the Defendants with proper discovery.

The motion of continuance was overruled by Weimer.

Miller then moved to dismiss the case on grounds that there was lack of evidence on the Plaintiff’s part in establishing that items of Filsinger’s property were in fact inoperative junk. The attorney also said that the case should be dismissed because the Plaintiff from Aug. 3 to Dec. 14 had failed to communicate in good faith what all of the nuisance items were. He said that it was at times difficult to get a handle on what city officials wanted Filsinger to clean up, and noted that it appeared as if city officials would not be satisfied with the property unless it was “turned into a park or something.”

Cuypers rebutted saying that he wished he could show the court the communication between the gentlemen. He said besides the email previously presented in evidence, he had asked the Defendants for insurance on May 17 on whether the abatement was going according to plan. Cuypers said that that message to this day remains without a response.

He continued that though it appeared the Defendants had moved some of the nuisances, 90 percent of said eyesores still remained.

Weimer denied Miller’s proposed motion to dismiss.

Miller called Sidney Police Chief Mike Brown to the stand to testify, inquiring of him about the photos that he was previously asked about taking on Jan. 9.

Miller verified through Brown that he had not gone onto the property to take the pictures but instead took them from a vantage point.

The attorney also asked the police chief whether or not he had gone out to the property in question everyday between the dates of Aug. 3 (the date of the conjoined inspection) and Dec. 14 (when the Defendants received the abatement case notice.) The chief’s response was that he had not.

Chief Brown was also asked by Miller whether or not he had record of the different times he had visited the site, whether he had stopped employees of Filsinger and asked what was going on with the property, or if he had left any documentation at the property indicating for Filsinger that a problem still existed. To all, Brown answered no.

Regarding the conjoined walk-through of the properties with the police chief, Filsinger, Filsinger’s son and employee, Cuypers, Miller and Leef the police chief was asked by Miller if their was any discussion at the time of the conditions of the fairground property and if those comments were written down by the police chief for records. Brown agreed there had been consultation but no record of items discussed.

Brown also confirmed that there were times during the inspection where both parties agreed and disagreed on items to be cleaned up.

Coming back to the photos the chief took of the property on Jan. 8, Miller asked whether or not it looked as if some of the items had appeared cleaned up when the police chief the morning of Jan. 23 had looked again at the premises.

Brown said that it appeared that on the east side of the property farm tractors had been removed from the premises, items had been moved to flatbeds and other items had been moved around.

Miller also questioned Brown on whether or not he could confirm from the photos if the vehicles in question were operative or inoperative or whether the trucks and trailers were licensed. The chief said he 100 percent could not tell from the pictures.

Miller argued that this enforcement had been acted upon Filsinger solely due to an ongoing dispute between him and city officials.

“If the property wasn’t Mr. Filsinger’s, I don’t think we’d be here today,” Miller said.

Brown was asked if city officials has filed lawsuits with other businesses throughout the city. He answered that city officials had but the amount filed was unknown to him.

Cuypers then questioned Brown regarding farm trucks and tractors that were seen during the Aug. 3 walk-through. Brown said that he believed he remembered Filsinger say that the trucks and tractors in question were inoperable. According to Brown, those vehicles were still seen sitting on the lot during his Jan. 23 inspection.

Brown said the same scrap metal, as well as an excavator and backhoe without tracks were also present as well.

Miller inquired if Brown knew what the scrap metal on the property was being used for; he responded that he did not. Also asked was Brown’s definition of “inoperable.” The chief replied that he saw it as something that doesn’t work or can not be used for its intended purpose.

Filsinger was then called to the stand by Miller. He was asked what his primary business on the property entailed.

Filsinger said that he ran towing and repair services for semis and trucks as well as light vehicles such as cars. However, the Defendant said that his businesses extended to excavating, being a gravedigger for the city and moving heavy equipment.

“It all depends on a phone call what I do for my next job,” said Filsinger, whose business began in 1953.

Filsinger said that he had taken steps to remove the stated nuisances and had not removed quite 100 percent but he estimated about 90 percent of the problem areas.

Miller asked whether or not Filsinger had been in contact with attorneys Cuypers or Leef between Aug.3 and Dec. 14 – his answer was no.

According to Filsinger regarding materials such as scrap metal, he had different opinions of salvage and used materials on his property. He said that the materials have use, even if they weren’t being used at the time. He continued to say that he wished to be treated just as the other businesses just three blocks away and should be allowed the same materials on his property.

Filsinger said that he uses the scrap metal for things such as cattle guards and a few truck attachments.

Weimer clarified that the court statement had noted that it wished the Defendant to remove all inoperable vehicles and farm equipment, scrap metal, debree, tires, etc. not just some of them.

Miller than asked Filsinger if he had attempted to get all of the vehicles on his property licensed. He responded yes, but that Cheyenne County had sent him a notice saying that they had ran out of plates. Filsinger said however that once more plates were in stock he will get the rest of his vehicles licensed.

Regarding the tractors on Filsinger’s property he said that there were about 7 or 8 antique tractors that he collected. He said that they had special meaning to him.

Filsinger said that though they might not be used everyday the tractors or vehicles could most likely be started with some gas or by their hand crank. He said that the vehicles had been operable when they were parked.

Filsinger said the trailers in his yard were used to haul equipment and have current operating plates.

He also said that he had done a lot of work to get the place up to city standards and would be willing to move more material from his fairground property to his property on Illinois St. if wished of him. He said that most of the items talked about on Aug. 3 had been removed.

Cuypers asked the Defendant whether or not by Jan. 9 all of the nuisance items had been removed, Filsinger answered no.

Cuypers asked and Filsinger confirmed also that he knew vehicles could get licensed without being operable.

Cuypers noted that the zone Filsinger’s property was in was claimed an agricultural zone, not a zone to keep salvage materials.

Weimer inquired whether or not the tractors and trucks were used in normal business operations; the Defendant said that they were not. Miller asked however if trucks and tractors were allowed on farmland, in which Filsinger confirmed they were.

Miller again asked for a continuance on the matter and more time to present the pictures that had been taken the day of Wednesday’s court hearing.

Weimer ruled that the Defendants could have the weekend to look over the pictures, see if they wanted to use them in court, and the case would be continued Jan. 29 at 3 p.m., regardless of presentation of photos.