Appeals court upholds Applewood warrants, board's order to vacate

The site of former Applewood Apartments buildings, which have been demolished, is pictured above at Hillside Road and East Hunter Circle on Wednesday, July 18, 2018. (Photo by John Huotari/Oak Ridge Today)

It’s not clear if it will make much difference now, but a state appeals court has upheld administrative warrants used by the City of Oak Ridge for inspections at Applewood Apartments and a city board order that had once called for vacating and demolishing six of the buildings.

The Tennessee Court of Appeals in Knoxville issued its opinion on Tuesday, July 24.

Joe Levitt, the owner of the former 13-building apartment complex on Hillside Road and Hunter Circle, had appealed a September 2016 order of the Anderson County Chancery Court in Clinton. That court, where M. Nichole Cantrell is chancellor, had granted summary judgement to the City of Oak Ridge, the Oak Ridge Board of Building and Housing Code Appeals, and former codes enforcement supervisor Denny Boss. Levitt, who has battled the city for years, had sought to overturn an Oak Ridge order that the six Applewood Apartment buildings be vacated and demolished.

Inspections conducted with the help of Corum Engineering in 2009 had found multiple code violations and structural deficiencies at the six buildings, including cracks in foundations, damaged and rotten floor joists, and evidence of wood-destroying insect activity, as well as dead animals and animal feces in the basement and crawl space, and excessive debris, lack of smoke detectors, plumbing leaks, and damaged roofing materials, among other issues, according to last week’s opinion. Unless the defects were corrected, the 2009 engineering report said, the top floors of the buildings could collapse because of a lack of structural support, according to the opinion.

The Oak Ridge Board of Building and Housing Code Appeals voted 7-0 during a hearing on January 13, 2011, to declare the property unfit for human occupancy and use. The next month, in February 2011, the board ordered the six buildings to be vacated and demolished within 90 days, the opinion said.

In his appeal, Levitt, who had been ordered to make repairs, raised concerns about the administrative warrants used by the city nine years ago and questioned whether the decision of the Oak Ridge Board of Building and Housing Code Appeals had been arbitrary, capricious, or illegal.

In its opinion, the Tennessee Court of Appeals found that the administrative warrants satisfied state law and the board’s decision was not arbitrary, capricious, or illegal.

“We, therefore, affirm the trial court’s grant of summary judgement,” the Court of Appeals said in an 18-page opinion written by Chief Judge D. Michael Swiney. He was joined by judges John W. McClarty and W. Neal McBrayer.

Citing the September 2016 order from Anderson County Chancery Court, the appellate court opinion noted that the parties had agreed to vacate any determination that the buildings should be demolished. The only board finding under review by the court was whether the buildings were unfit for humans and should be vacated. There were no issues on appeal regarding the demolition order.

“The trial court (Anderson County Chancery Court) found that the board (Oak Ridge Board of Building and Housing Code Appeals) had before it evidence of the structural deficiencies, evidence that owner (Levitt) had not notified the city of any structural repairs being made, evidence that no request for re-inspection had been made, and evidence that the city has received no applications for building permits,” the opinion said. “We find and hold, as did the trial court, that the board had material evidence before it to support its decision and that the board did not exceed its jurisdiction or act illegally, arbitrarily, capriciously, or fraudulently. The city made a properly supported motion for summary judgement showing that it was entitled to judgement as a matter of law, and owner then failed to show any genuine disputed issues of material fact. We therefore, affirm the trial court’s September 14, 2016, order granting summary judgement to the city.”

Summary judgement can be granted when there are no disputed “material issues of fact” and the party making the motion is entitled to judgment as a matter of law. If the motion is granted, there will be no trial.

Regarding the administrative warrants, the Tennessee Court of Appeals said that affidavits filed in the case had identified the specific buildings at issue and had stated that there was probable and reasonable cause to believe that there were violations of the International Property Maintenance Code, which has been adopted by the city, with regard to structural soundness and sanitary conditions.

“The affidavits were sufficient,” the opinion said.

It’s not clear if the opinion will matter for much beyond the payment of court costs—the costs on appeal were ordered against Levitt and “his surety”—because all 13 apartment buildings have since been demolished. Levitt had requested that attorney’s fees be awarded on appeal.

The case was argued in the appellate court in Knoxville on February 20, after demolition work had already started at Applewood Apartments.

Levitt, a Knoxville attorney, represented himself.

Joe Levitt, Applewood Apartments owner, is pictured above on April 13, 2017. (File photo by John Huotari/Oak Ridge Today)

Oak Ridge, its building and housing board, and Boss were represented by attorneys Dan R. Pilkington and Brian R. Bibb of Knoxville.

Issues between the City of Oak Ridge, Applewood, and Levitt have been heard by the court three times before, the opinion said. The six buildings at issue in this case were on East and West Hunter Circle. Applewood Apartments also included buildings on Hillside Road.

See the Tennessee Court of Appeals opinion here.

More information will be added as it becomes available.

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