Nolting sued for $50,000 in damages

A lawsuit filed against Kimball County Commissioner Tim Nolting requesting $50,000 in damages will be heard in Kimball County District Court June 3.

Emerson “Fal” Calvert, who owns lots 8, 9 and 10 of Block 9, Orkney Addition to the village of Bushnell, commonly known as the old lumberyard, filed the suit alleging that Nolting, who also serves as Chairman of the Village of Bushnell Board of Trustees, had “abused his authority with continuous harassment and threats that have escalated beyond reasonable and beyond the scope of Mr. Nolting’s authority” concerning requests for the cleanup of Calvert’s property in Bushnell.

Calvert states that, since buying the old lumberyard in 2007 “for the sole purpose of storing his personal property including parts, equipment and supplies”, Nolting along with other members of the board of trustees enacted new Zoning and Subdivision Regulations along with “revisions between the time periods of October 2010 and May 2013”.

“These new zoning regulations did not allow for a grandfather clause as required by federal law. The states of the Union have given jurisdiction to the federal government in several matters including real property. Federal law trumps village codes if the codes violate the property rights of the citizens,” Calvert’s official complaint states.

The complaint concerning the alleged unlawful encroachment on his property stems from rulings by the Bushnell board of trustees that ordered Calvert to clean up vehicles and other equipment which they believe to be a nuisance according to village ordinances.

Calvert states that Nolting’s efforts in trying to get him to clean up the property have been too aggressive, causing Calvert to get rid of possessions in order to appease Nolting in the fear that Nolting might remove all of the equipment on the property.

“Plaintiff did get rid of some of his property that he really wanted to keep in his effort to satisfy Mr. Nolting. Plaintiff did find other storage for some of his property under threat, duress and cohersion [sic] in his attempt to quiet Mr. Nolting and prevent him from following through with his threats of cleaning up plaintiff’s property if plaintiff failed to do so. Plaintiff is out thousands of dollars of inventory that he reluctantly got rid of trying to keep Mr. Nolting from taking everything,” the complaint stated.

The complaint also states that Nolting, who has been serving as both a county commissioner and chairman of the board of trustees since elected as commissioner in the general election of 2012, has violated state law in holding both offices and calls for him to be removed from his position as chairman of the board of trustees.

“Mr. Nolting ran for Kimball County Commissioner during the general election in the fall of 2012 and officially took office in January 2013 in this second high elected office. He now serves in both generally elected high offices simultaneously in violation of Nebraska state law and the Constitution for the State of Nebraska,” the complaint stated.

For these causes, Calvert is demanding a cease and desist order prohibiting Nolting from tampering with and removing his property without a court order pursuant to state and federal law; case precedence stating that public servants not act in a judicial capacity by tampering or removing a citizen’s property without due process of law in a court of law; court order clarifying that Mr. Nolting’s Chairman of the Board in Bushnell is “deemed vacant” and that he cannot hold two generally elected high offices and that his first public office of Chairman of the Board in Bushnell is “vacant” pursuant to law; and $50,000 in damages caused by Mr. Nolting to cover his pain and suffering, time/labor to remove property from his property, loss of times he got rid of or had to relocate in his attempt to satisfy Mr. Nolting over the past tow years.

However, though the claims in Calvert’s complaint are stated as facts, there are several discrepancies throughout when compared to the minutes of the Village of Bushnell Board of Trustees.

For instance, Calvert states that Nolting had become a board member “several years ago and prior to Plaintiff’s property purchase”. However, according to minutes from the Village of Bushnell Board of Trustees proceedings, Calvert appeared before the board on May 23, 2007 to discuss his desire to use the lumberyard for equipment storage, asking for a permit to put a 12 x 60 trailer on the property for “a carpenter shop”. Nolting did not join the board of trustees or take an oath of office until February 4, 2008.

Calvert also claims in his complaint that he “enjoyed the first five years of storage at his property in peace”, stating that in 2012 that all changed with Nolting abusing his authority to harass him about the property.

However, once again, this does not seem to be entirely factual when looking over the minutes of board proceedings at the September 11, 2007 meeting where it is stated that complaints were received regarding the “junk at Lots 8,9 and 10 of Block 12 in Orkney Addition”. At the time, board member Perez stated that the Health Board was concerned about “the increase in junker vehicles at that location.” A letter was then sent to Calvert requesting cooperation in complying with the village’s band on junk yards.

At another meeting in October of that year, Calvert sent a letter asking for more time to clean up the property and to comply with permit terms stating that he was “having some problems getting everything done” and asking the board to “bear with him” to which the board directed the clerk to send a certified letter asking for a detailed plan and time line for cleanup.

In June 2008, with Nolting now serving as chairman, little progress had been made on cleanup, according to the minutes with the clerk stating that “pictures and a letter had gone to the owner, telling him tat the Board was monitoring his progress with the corrections he was to make per his permitting from the Village, and asking him for a timetable for completion”. However, no response was given by Calvert.

On August 5, 2008, board minutes state that the “owner of the lumberyard property hasn’t complied with the conditions of being given permission to put an old trailer on the property, etc.”. Therefore, village board member Luehr made a motion, which was seconded by Stewart, to begin abatement proceedings.

Calls to the phone listing for Calvert along with his ABC Towing business in Pine Bluffs returned disconnected numbers.

For his part, Nolting states that Calvert’s claims of rezoning are simply unfounded.

“He says that the Village of Bushnell has no zoning therefore he can do whatever he wants on that property. And that even if it were zoned, he is grand fathered in, which is not true. The clause in our resolutions and our ordinances in the Village of Bushnell clear back to the beginning in the early 1900’s state that no junk yards are to be allowed in the village limits. When we get to that point, he argues that it’s not a junk yard, it is salvage for a towing business,” Nolting said.

However, Nolting states that when looking at the vehicles that have been put on the property, one would be hard pressed to deem many of them salvageable.

“There’s only one vehicle in there that could be called a salvage vehicle from a tow in. There’s torn up mobile homes, trailers, wagons full of junk tires…it’s just a hodgepodge of junk. And he may have salvaged it from somewhere, but it’s junk,” Nolting said. “And then there’s another ordinance that we’ve brought to his attention that if you do want to salvage or keep vehicles or equipment or anything it should be in a garage and covered and out of sight. And he can’t just protect it by a wall that you can’t see over. It has to be inside or else it’s 30 days. If it’s out for 30 days then the village has the authority to tow it away.”

Nolting, however, does concede that Calvert did start to cleanup the property after being prompted by the board.

“He did start cleaning up some of the property. He took some of the stuff away. But I was, obviously, still badgering him. He continued to clean up so he’s suing me for $50,000 for his mental anguish for having to deal with this whole thing,” Nolting said.

Nolting also vehemently denies that it is unlawful for him to hold both of his offices simultaneously, stating that it had been cleared before he had ever put his name on the ballot to run for commissioner.

“Before I even got my name on the ballot for county commissioner, myself and Cathy Sibal, County Clerk, contacted the Secretary of State of Nebraska and they pointed us towards the election official and they stated that yeah, you can hold an office on the board of village as well as holding the office of county commissioner. So we knew from the beginning that it was okay. But yet, this guy keeps interpreting that same statute as saying that I can not,” Nolting said.

Nolting also states that Calvert is not legally able to sue him personally for his actions on behalf of the village of Bushnell, an argument which his attorney, Robert Brenner, is expected to use in a motion to dismiss at the June 3 hearing.

“The motion to dismiss, which is filed by my attorney [Robert Brenner], is based on the argument that all of those things are not valid. And then the final argument is that all of the things that have been done have been done by the board of trustees of the Village of Bushnell not by Tim Nolting. According to Nebraska statute, he can not file charges against me personally when I’m acting on behalf of the village,” Nolting said.

Nolting also hopes that, if the case is dismissed, that the allegations that he can not hold the two offices will finally be put to bed.

“I’m 99.9 percent certain that it’ll just be dismissed. And what I had asked Mr. Brenner to do, if at all possible, I mean you don’t impose upon a judge, but if at all possible, the judge could make it clear that what the village of Bushnell is doing is within the legal authority of the village of Bushnell and he has to comply. Secondly, so that this whole rumor about me holding two offices will finally die that the judge will make a statement that says, ‘According to Nebraska statute, this is perfectly legal,’” Nolting said.

However, even if the judge rules in Nolting’s favor, he does not anticipate that the issue will be completely resolved and that Calvert will back off.

“I guess two things couldn’t go well. Either one, he just turns around and files another lawsuit or the judge says as chairman of the board you have control over that board and you pretty much are responsible for the board’s actions so we are going to hold you responsible. I would continue to fight it. That’s just…my attorney is Mr. Brenner, and Mr. Brenner would support me all the way. So I really don’t think that’s going to happen at all. I think probably the worst case scenario is that he’ll turn around and sue the village,” Nolting said.

However, if the case is dismissed, Nolting believes that it will give the board a precedent and more leverage to be able to better enforce their codes and ordinances.

“I’m responsible for finally convincing the board that if we don’t take care of this when we see it happening because he can get away with it, everybody else can get away with it too. And we’ve got properties here in town that are a health hazard, that depreciate the value of their neighbors property. If we can get this one through then everyone in the village can realize that we’re serious. If you have this kind of a mess on your property, [you] better get it cleaned up or the village will take you to court,” Nolting said.

The hearing was originally to take place on May 6 in Kimball District Court. However, Calvert, who had previously opted to represent himself, hired attorney William C. Peters the Friday before the hearing was to take place, with both parties coming to an oral agreement that Peters would be given 20 days to amend the pleadings in the matter before the Motion to Dismiss was come up for hearing.

The hearing is scheduled for June 3 at 10:30 a.m. in Kimball District Courtroom #1.