The construction company that built the now-water-plagued Flats at Mixson apartment complex in North Charleston two years ago is appealing an order to fix or tear down the buildings.
On June 6, the city’s Public Safety and Housing Committee unanimously agreed that the complex, located at 4500-4501 Mixson Ave. in the Park Circle community, posed a “danger to the public safety” and its 10 buildings were “unfit for human habitation.”
A week later, the committee chairman signed an order saying the owner — The Flats at Mixson L.P., an affiliate of Atlanta-based Jamestown L.P. — must have the residents move out “within a reasonable time” and either bring the buildings back up to city code or demolish them within 180 days.
If the repairs or demolition are not completed by the Dec. 11 deadline, the city may demolish the structures and place a lien against the property, the order says.
North Carolina-based Samet Corp. originally built the 268-unit apartment complex for about $21.8 million in 2014. Soon after, water leaks were discovered that had caused damage to the buildings, including visible cracks in the exterior stucco.
Last year, The Flats at Mixson L.P. filed a lawsuit against Samet Corp. and its contractors demanding damages of no less than $20 million for “breach of their implied warranties.” That case is ongoing.
“Although they differ on their conclusions, all parties agree that the buildings suffer from water intrusion and, as a result, are not weather-tight or watertight,” the Public Safety and Housing Committee’s order says.
Samet Corp.’s attorney, though, said the committee should have never been allowed to decide the fate of The Flats at Mixson. In its appeal in circuit court on July 6, the company questioned the committee’s jurisdiction and claimed it took improper action and performed an inadequate site inspection, among other things.
Taking the case to court
“We think that this big of an issue should be handled through the litigation process with an opportunity to question witnesses, ask about their findings, which we weren’t given an opportunity to do,” said Rosen Hagood attorney Chip Bruorton, who is representing Samet. “We don’t believe their structural engineer had any support for what he said, and we didn’t have any opportunity to question him about it.”
He said the owners did not provide any evidence that the buildings are structurally inhabitable; the committee allowed each side to discuss the buildings’ conditions during only a 15-minute presentation; cross-examination of witnesses was not permitted; and the owner’s witnesses were not asked to swear an oath prior.
“All of these things, and others, denied Samet its fundamental and constitutional right to due process of law,” the appeal says.
Samet also is appealing because of the committee’s visit to The Flats at Mixson property. Samet did not have a representative present, and the committee visited units selected by the owner’s property manager, according to the appeal.
The units were “not representative of the conditions of all units and did not provide a fair sample of units to allow the PSHC (Public Safety and Housing Committee) to truly asses the living conditions at Mixson and the safety of the buildings,” the appeal says.
Samet claims the order that was signed by the committee chairman is not consistent with the motion made during the committee meeting. Leroy Bennett made the motion, saying, “The owner shall devise a plan to evacuate structures within a reasonable time and bring the structure up to code within 180 days.” The written order gives the owner the option of demolition, which was not part of Bennett’s motion.
Further, Samet’s appeal says the committee doesn’t have jurisdiction over the case. Bruorton said the complex’s owner initiated the process by sending a letter to the city saying the buildings were unsafe for occupancy. But he said the city’s code of ordinances requires a public official or five residents to file a petition.
“We just think that the process should have been handled through the state court,” he said. “We believe that the litigation will speak for itself, and it should have never gone through this process.”
Derk Van Raalte, deputy city attorney for North Charleston, said he disagrees with Bruorton’s interpretation of the code of ordinances.
“It’s a classic situation for a court to decide. It’s a question of law,” Van Raalte said. “ ‘The rule says X, and what do those words mean?’ That’s a classic situation that a judge decides. I think it’s completely understandable that Samet’s attorney and our attorney have different opinions on that.”
He said the Public Safety and Housing Committee is made up of laypeople who are expected to make their decision in a relaxed and informal manner, not under the rules of court that require sworn testimony.
Committee meetings “are not supposed to replace the formal court system,” Van Raalte said. “They’re not supposed to be things that lawyers come into and convert into a trial.”
He added that the 15-minute time limit is common to summarize claims because all parties are allowed to submit their position in writing as well.
“I think in the next couple of months, you’ll see this thing come to a hearing. Then we’ll see,” Van Raalte said. “Obviously if the court tells us we shouldn’t enforce it, then we’re going to abide by what the court says. If the court says it’s appropriate to enforce, then we would expect the parties to abide by what the court says as well.”
A spokeswoman for Jamestown, the property owner, refused to answer questions about the appeal and whether the company plans to bring The Flats at Mixson back up to code or demolish the buildings.
“Jamestown’s focus on safety and the advice of structural engineers and other experts informed the decision to vacate the Flats,” Callie Wamsley said in an email on behalf of Jamestown.
This story originally appeared in the Aug. 8, 2016, print edition of the Charleston Regional Business Journal.