Construction companies sue Brooklyn Center after projects postponed due to COVID-19

Two construction companies are suing the city of Brooklyn Center after their projects were suspended due to COVID-19 concerns, alleging that, combined, the two companies will lose nearly half a million dollars each week that work is delayed.

S.R. Weidema, Inc., of Maple Grove, and R.L. Larson Excavating, Inc., of St. Cloud, said Mayor Mike Elliott wrongly postponed their projects because of a family's concern that construction dust could harm their children who have asthma, given the concerns about COVID-19.

Other construction projects in the city were allowed to continue in line with state and federal guidelines, the companies argued in their lawsuit filed Wednesday in Hennepin County District Court. The companies are asking a judge to approve a temporary restraining order that would prohibit the execution of Elliott's proclamation suspending their work.

Elliott said in a written statement that his duty was to "protect the health and safety of our citizens" using emergency powers available to the city.

"There were no guarantees that our citizens would be safe from the added exposure and risk due to the construction," he said.

Elliott issued an emergency proclamation on March 29 postponing the companies' work until Gov. Tim Walz lifts the stay-at-home executive order he issued on March 25, or until the end of the COVID-19 emergency.

Walz's order required Minnesotans not to leave their homes except for outdoor recreation or to buy food and household supplies, among other reasons. It permitted essential industries, including "construction and critical trades," to continue operating. The order was set to expire April 10; Walz on Wednesday extended it until May 4.

Susan Shogren Smith, who lives in the project area, alerted the city twice last month about the construction and health concerns. She said two of her 12 children use ventilators daily and four others regularly use nebulizers to treat allergies or asthma. Construction on part of the project last year created dust that prevented her children from playing outside and exacerbated respiratory problems, she said.

"This is just not the time [to continue the projects], and the fact that these two construction companies would actually file a lawsuit and put their financial interest ahead of the health of the community is … disgraceful," she said.

The lawsuit argued that the city's code says the governor supersedes the city's authority in an emergency, that state law prevents the city from acting beyond the state during such times and that Walz's order explicitly restricts a "political subdivision" from flouting his directive.

"The [Walz] Executive Order states unequivocally that, 'Any inconsistent rules or ordinances of any agency or political subdivision of the state are suspended during the pendency of the emergency," the suit said."

According to the suit: The city awarded S.R. Weidema a contract in June 2019 for the Interstate Area Street and Utility Improvements Project to be completed by Oct. 2, 2020. The company has to pay $3,000 each day the project is delayed.

S.R. Weidema completed the first of three phases of the project last year and resumed construction on the last two phases on March 23.

On March 3, 2020, the city awarded a contract to R.L. Larson for the Grandview North Area Street and Utility Improvements Project to be completed by Oct. 30. The company also faces a $3,000-per-day penalty for missing the deadline.

Both projects involve work on street curbs, gutters, storm sewer replacement, sanitary replacement and partial water-main replacement affecting 347 residential homes, 34 multifamily properties and a church. The areas are prone to water-main breaks from freezing, flooding and pavement distress.

"Plaintiffs — through counsel — have proposed a number of solutions to the City to minimize dust and otherwise reduce risk … including increased watering, re-phasing of the Project, relocation of any families who feel they are at risk and use of air filters to minimize impacts," the suit said, adding that the city declined to accept the offers.

The companies cannot meet their deadlines with the suspensions, may have to take on new projects during the delay, could face increased costs when work resumes and may be unable to return to the projects, the suit alleged. Each company is losing about $200,000 each week the projects are delayed, according to the suit.

S.R. Weidema representatives declined to comment citing the pending litigation. Representatives for R.L. Larson Excavating did not return messages seeking comment.