Appeals board upholds condemnation in Harrisburg wall collapse

Harrisburg’s Building and Housing Code Appeals Board on Thursday upheld the city’s condemnation notice against the owner of a Mulberry Street property where a retaining wall collapsed in May.

But the panel’s decision may not bring a cleanup any closer to fruition, and that hits one Cameron Street business owner especially hard.

Howard Henry owns Howard Tire and Auto, which is located below the collapsed wall at the McFarland Apartments. Five months after mud, structural debris and a parked auto came tumbling down onto part of his property, the mess remains, as does a gaping hole in the back wall and roof of a warehouse.

He has had to close his business, putting 12 people out of work. 

In the meanwhile, cleanup remains stalled as the building’s out-of-state owner is engaged in a battle with city officials and the Pennsylvania Department of Transportation over who owns the wall and what caused it to collapse.

“There are multiple players involved,” Henry told reporters. “I think multiple players should be involved in the solution. But everyone ran from the wall.”

Adam Klein, an attorney representing building owner Isaac Dohany, said after the hearing that the board’s decision represented only the first step in a long process. Klein said he would consult with Dohany over the coming days about whether to appeal.

Dohany, of New Jersey, attended the hearing but did not speak during the proceeding or with reporters afterward. Thursday’s hearing was held in response to Dohany’s contention that the condemnation notice had not been issued properly. 

“We disagree that this is something that’s a danger to health and public safety,” Klein said of language in the notice, which requires the McFarland owner to clean up all debris caused by the wall collapse. 

If Dohany decides to appeal, that would elevate the matter first to Harrisburg City Council, and then to the Court of Common Pleas, Klein said.

Sequence of events

The initial wall collapse took place on May 5, following days of rain. No injuries were reported, and PennDOT confirmed in the following days that the adjacent Mulberry Street Bridge remained safe.

For Henry in particular, however, the devastation was real and extensive. Despite the damage to his upper warehouse, Henry was able to reopen a few days after the collapse, with a tarp covering the gaping hole.

The bridge was built by the city 107 years ago, but has been owned by the state since around 1939, Art Emerick, the city’s assistant codes director, said Thursday.

At issue since has been whether the adjacent retaining wall was part of the bridge — although that was not one of the questions before the board Thursday.

PennDOT has said the wall was not connected to the bridge, and that the agency does not own the wall.

On May 16, the city issued McFarland a notice to correct the damage.

No action was taken. A second collapse occurred on June 25. Days later, the city condemned three properties: an eight-unit apartment building at 200 Crescent St., owned by McFarland LP; 127 Mulberry St., a vacant storage building; and 205 S. Cameron St., the rear tire storage facility for Howard Tire & Auto. 

What we don’t know

Appeals before the board are conducted like court proceedings, with witnesses testifying in response to questions from lawyers. Board members then deliberate and render an opinion.

Emerick was the only witness questioned.

Klein — not without objections from City Solicitor Neil Grover — attempted to get Emerick to talk about what he believed caused the collapse, honing in on bridge work done by PennDOT.

A $12.2-million renovation project that concluded last December involved pouring water onto the bridge to cure new concrete, and Henry has previously said he saw the water flowing down onto the wall. 

“You would have to agree that PennDOT is responsible, right?” Klein asked Emerick on Thursday night.

As Grover was trying to object that the question wasn’t relevant to the validity of the condemnation, Emerick answered anyway.

“That would be purely speculation on my part,” he said.

PennDOT has said its own investigation found no evidence that its work contributed to the collapse.  

Klein turned to a related issue, asking Emerick whether the city found any evidence of plans or permits from the 1990s, when backfill was placed behind the wall to build up the parking lot, which partially collapsed this year.

Emerick admitted under questioning that the city “can’t find anything definitive.”

Klein also said his client had not taken any action on the project because an engineer’s report found there was no imminent danger of the apartment building collapsing. Thus, Dohany did not want to “risk making things worse,” which also might affect his insurance coverage. 

The lawyer left no doubt about how he viewed the city’s actions.

“Laying blame is exactly what the city is doing” in an effort to force Dohany into cleaning up an expensive collapse he didn’t cause, Klein said.

“We believe in this matter our clients are being used as patsies when others are to blame for the mess,” the lawyer added.

The board unanimously upheld the condemnation, following about 10 minutes of deliberation.

For Henry, the question of whether Dohany will appeal only promises to prolong a painful ordeal.

Despite months of operating in spite of the damaged warehouse, he finally closed his business earlier this month, after a report from a private adjustor informed him that the building would not be safe for occupancy until the debris was removed and the wall stabilized.

Henry told reporters he has proposed bringing all the parties to the table to reach an agreement, but with no success.

“Let’s just talk,” he said pleadingly.

In the meanwhile, Henry remains in limbo. The business he founded two decades ago is shuttered, and while he works with his own insurance carrier, the long-term options remain unclear.

“For me to move would be a serious financial hardship,” Henry said of his 56,000-square-foot operation. “Where would I move it?”