Power Plant Lawsuit Against Hutsler Advances
The physical damage to the smokestack may have already been done, but the Power Plant Brewery restaurant is seeking monetary damages for Tom Hutsler’s decision to demolish the iconic chimney last year.
Hutsler, a downtown landlord who owns the building, demolished the smokestack last year after deciding it was not financially feasible for him to maintain the crumbling structure. Power Plant owners contend that Hutlser’s action violated their lease agreement and had asked a Platte County Judge to enter a summary judgment in the case on January 7.
As the Luminary went to press, no judgment was declared but Hutsler had until February 5 to ask Judge Lee Hull for the right to a jury trial. Hutsler told the Luminary that he intended to do so but as the Luminary went to press neither party could be reached to confirm that any action had been filed in the matter.
A frustrated Johannes thinks he has a strong case.
“He’s been telling [media] how much it ‘broke his heart,’ how it was a ‘necessary evil’ [to destroy the smokestack] but not one engineering entity said the [smokestack] had to be demolished,” Phil Johannes, principal owner of the Power Plant Restaurant, told The Luminary. “They said it could be repaired and maintained. [Hutsler] chose not to.”
In four separate engineering studies examined by The Luminary, structural reviews all basically say the same thing: the smokestack was seriously deteriorating, posed a potential public threat and had to be either repaired and maintained at a high cost or torn down at a lower cost.
In one analysis, Andy Rakewicz, a partner at Norton and Schmidt Consulting Engineers, underscored that point.
“Although it is possible that repairs can be made to safely extend the service life of the chimney, the current deteriorated condition will make that a costly endeavor,” Rakewicz wrote.
Statements like that, Johannes says, prove his point.
“It didn’t have to be torn down – but it was because [Hutsler] couldn’t afford to maintain it,” Johannes said. “Well, that shouldn’t be our problem.”
According to section 15 of the lease between the Power Plant and Hutsler’s company, Tomkat, LLC, the landlord is responsible for the “sole cost and expense” of maintaining the structure. Specifically, the lease calls on Hutsler to “maintain and keep in good repair the roof, exterior walls, gutters, downspouts, foundations, and all other structural components of the building.”
Further, Johannes alleges, Hutsler knocked down the smokestack without their permission – something else the lease provides for. Johannes said one of the chief reasons why the company chose to call themselves the “Power Plant Brewery” was due to the chimney. The company features the image of the smokestack in their logos and marketing materials.
“The lease says he cannot alter the premises unless we, the tenant are in default. We are not in default.”
Since the demolition, management figures show that sales at the restaurant are down 19 percent from last year.
“We can prove we’ve been damaged,” said, “If [Hutsler] is not willing to rebuild the smokestack, we are seeking damages and termination of the lease.”
The Power Plant Brewery – which has never turned a profit in all its nine years of operating – originally signed their lease in 1998 and re-upped until 2013 with their current lease.
Hutsler, who is also running for mayor this year, told The Luminary that the smokestack was actually a separate structure, built on a separate footing and foundation from the rest of the building.
“They never paid rent on the smokestack,” Hutsler said, refuting claims that it was on site plans for the lease.”
When asked if Hutsler had paid rent or property tax on the smokestack as a separate structure, Hutsler explained he didn’t need to, because he owned the entire property and could rent out only the pieces he decided to rent out.
Johannes said that the site plans and language in the lease clearly state the smokestack was part of the structure they rented and that there was no record of there being a separate address on the property.
“Why would we rent the power plant, but not the smokestack?” Johannes asked this reporter, rhetorically. “It just doesn’t make any sense.”