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City asks court to dismiss Town Plaza lawsuit

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Lawrence Edmisten III, sometimes referred to as Rick, at a Sept. 12 Roswell City Council meeting. (Lisa Dunlap Photo)

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Property owner wants condemnation, lien reversed

The city of Roswell could be heading toward a February court date regarding the Town Plaza Apartments’ closure and condemnation.

Judge James Hudson, who serves in Chaves County for the New Mexico 5th Judicial District Court, is scheduled to preside at a Feb. 24 hearing regarding the city’s motion to dismiss the lawsuit filed Oct. 2 by Town Plaza owner Lawrence Edmisten III, according to court documents.

Edmisten of Nogal, New Mexico — sometimes referred to as Rick — is asking the court to reverse the city’s actions that required tenants to leave the apartments and its later decision to condemn the property, which is at the corner of West McGaffey Street and South Sunset Avenue.

The suit alleges that the city violated Edmisten’s civil rights, wrongly deprived him of property and income, and committed other torts by not giving Edmisten ample notice, time and opportunity to rectify problems before forcing tenants to leave in January 2019.

City staff “red tagged” the Town Plaza Apartment complex Jan. 7, 2019, calling the complex “unsafe” and a “public nuisance.” (Lisa Dunlap Photo)

Edmisten’s lawsuit states that the problems at that time involved a lack of hot water to four of the 35 occupied units in the 72-unit, 10-building complex.

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The suit contends that Edmisten was attempting to solve the problem in January when the city “red-tagged” the property Jan. 7, giving the owner a 10-day notice of possible condemnation proceedings if problems were not fixed and notifying tenants that they had until Jan. 16 to vacate the premises.

Although news articles indicate that some tenants were still living on the property after the vacate date given by the city, Edmisten’s suit alleges that city staff cut short the 10-day notice and required tenants to move out only five days after notice was given.

The city, in its filings, reiterated its conclusion that the property is a “public nuisance and a health and safety hazard.”

City staff have said in interviews, during city meetings and in court documents that the problems went far beyond a lack of hot water to some units. Documents and staff have talked about deteriorating roofs on all buildings, leaking water and sewage inside and outside of units, exposed electrical lines, reports of mold, no heat in some units and unsecured apartments that allowed non-tenants to come and go.

After tenants vacated the property in January, the city had water and utilities turned off; and, on July 11, the Roswell City Council voted to condemn the Town Plaza complex.

According to the representations of Edmisten and his attorney, William Griffin of Ruidoso, Edmisten lost $300,000 in rental payments from the time the tenants were required to leave until the lawsuit was filed, money they said could have been used to make repairs.

The filing also alleges that he loses $30,000 a month while the property remains condemned and that the city’s actions have contributed to further damage and vandalism of the complex, resulting in a significant loss of market value for the property. In addition, the suit states a November inspection of the property by a structural engineer found some damage of foundations and walls but concluded that the complex could be repaired.

Edmisten and Griffin made similar arguments during a Sept. 12 Roswell City Council meeting.

They sought, at that time, to have the City Council reverse its condemnation vote, as well as the decision to red-tag the complex.

After listening to Griffin, Edmisten, City Attorney Aaron Holloman and city staff, the City Council voted 6-3 to uphold its July decision.

Holloman, Griffin and the law firm representing the city — Atwood, Malone, Turner and Sabin — did not return phone calls asking for comment.

Edmisten has asked for a jury trial and is seeking monetary damages, in addition to the reversal of the condemnation decision and the lien that the city placed on the property to cover the costs of boarding up some of the windows and doors.

The city is asking the court to dismiss the lawsuit. Its argument is based on several legal issues, but also on its continued assertions about the safety hazards of the property and that Edmisten received plenty of notice and opportunity to rectify the problems before the city took action.

In other litigation related to the situation, two lawsuits against Edmisten by Citizens Bank of Clovis have been dismissed.

The lawsuits were filed in Chaves County and Lincoln County in May 2018 over money owed on the Town Plaza property, with two loans on the Ruidoso property also called due as a result. On Sept. 18, the bank dismissed the cases, stating that Edmisten has “fully paid and satisfied all sums owed.” The liens against the properties also were released at that time.

Senior Writer Lisa Dunlap can be reached at 575-622-7710, ext. 311, or at reporter02@rdrnews.com.