Sec. 3.18. Demolition by Neglect

3.18.1. Applicability

OwnersClosed Any person having charge of any real property according to the records held by the Register of Deeds. of certain historic properties are required to maintain their properties and not allow them to fall into disrepair. The requirements of this subsection are applicable only to certain properties, termed "historic properties" in this subsection. That term as used in this subsection is defined to include designated historic landmarks and properties identified as "contributing" or "pivotal" in designated historic districts.

A. Conditions of Neglect Defined and Prohibited

OwnersClosed Any person having charge of any real property according to the records held by the Register of Deeds. shall maintain or cause to be maintained the exterior and structural features of their historic properties and not allow conditions of neglect to occur on such properties. Conditions of neglect are as defined below. It shall be a violationClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of this Ordinance to not remedy a condition of neglect within the period of time set by a final administrative determination, as described in subsequent subsections of this Ordinance. Conditions of neglect include the following:

1. Deterioration of exterior walls, foundations, or other vertical support that causes leaning, sagging, splitting, listing, or buckling.

2. Deterioration of flooring or floor supports, roofs, or other horizontal members that causes leaning, sagging, splitting, listing, or buckling.

3. Deterioration of external chimneys that causes leaning, sagging, splitting, listing, or buckling.

4. Deterioration or crumbling of exterior plasters or mortars.

5. Ineffective waterproofing of exterior walls, roofs, and foundations, including broken windows or doors.

6. Defective protection or lack of weather protection for exterior wall and roof coverings, including lack of paint, or weathering due to lack of paint or other protective coveringClosed See "ground cover.".

7. Rotting, holes, and other forms of decay.

8. Deterioration of exterior stairs, porches, handrails, window and door frames, cornices, entablatures, wall facings, and architectural details that causes delamination, instability, loss of shape and form, or crumbling.

9. Heaving, subsidence, or cracking of sidewalks, steps, or pathways.

10. Deterioration of fences, gates, and accessory structures.

11. Deterioration that has a detrimental effect on the surrounding historic district, or on the special character of the historic landmark.

12. Deterioration that contributes to a hazardous or unsafe condition.

3.18.2. Process and Administration

A. Director Investigation and Determination

1. Initiation by Petition

The initial determination that there is a condition of neglect shall be made by the Planning Director, or designee, after an investigation that is initiated by a petition from any personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. who is familiar with the subject property, which may include but not be limited to a City employee.

2. Notice of Investigation

On receipt of a petition, the Director, or designee, shall notify the ownersClosed Any person having charge of any real property according to the records held by the Register of Deeds. in writing of the allegation and the process for making a decision regarding the petition, including any applicable deadlines. Among other things, the notice shall offer the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. the opportunity to meet in personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. with the Director, or designee, and to present any relevant information. Notice shall be delivered by personalClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. service, or by certified or registered mail, return receipt requested. If certified mail is refused or unclaimed, notice may be delivered by first class mail, and shall be considered effective if such mail is not returned by the post officeClosed A room, group of rooms, or building whose primary use is the conduct of a business, professional service, or governmental activity of a non-retail nature; including administration, record keeping, clerical work, and similar functions. This definition is not meant to include manufacturing, processing, repair, or storage of materials or products. within 15 days of mailing. In the case of notice by first class mail noticeClosed Either surface mail or e-mail, unless one is explicitly directed.e shall also be posted on the property. Notice of the investigation may also be given to the ownersClosed Any person having charge of any real property according to the records held by the Register of Deeds. of nearby or adjacentClosed Property abutting directly on the boundary of, touching, or sharing a common point. properties or neighborhood associations.

3. Responsibilities of Director

The Planning Director or designee shall:

a. Investigate the allegation that a condition of neglect exists;

b. Hold one or more meetings at a time to be set by the Director, or designee, in which the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds., other personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. who have received notice, or other interested personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. may give information;

c. Issue a written determination, supported by findings of fact, regarding the allegation within 45 days of the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds.’s receipt of notice;

d. Include within the determination a time period for correcting the condition of neglect, if a condition of neglect has been found;

e. Retain all information presented by the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. or other personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity.;

f. Deliver the written determination through any of the means for delivery of notice, as described above;

g. Designate the written determination as a final administrative determination with the right of appealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. to the HPC; and

h. Include information regarding rights to a de novo hearing before the HPC.

B. Suspension of Process

The above process may be suspended in the event the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. agrees in writing to correct the alleged condition of neglect within a time period determined to be reasonable by the Director, or designee. If the condition is not corrected within that time period, the process shall continue where it was suspended.

C. Appeal of Director’s Determination

1. If the property ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. disagrees with the Director’s determination, the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. can appealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. and may request a de novo hearing before the HPC.

2. The request shall be delivered to the Planning Department, in writing, within 30 days of receipt of the Director’s determination.

3. The HPC shall hold a quasi-judicial hearing on the issue of whether demolition by neglect is occurring on the property. Procedures that would be followed by the Board of Adjustment (BOA) in a quasi-judicial proceeding shall be used. The Director’s determination shall be considered an administrative determination, which has been appealedClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. to the HPC as allowed pursuant to paragraph 2.5.4B, Demolition by Neglect.

4. The HPC’s determination to overturn the administrative determination shall be passed by the standards established in paragraph 2.4.6.

a. The HPC’s written decision shall include findings of fact and conclusions regarding demolition by neglect consistent with this subsection.

b. It shall be delivered to the appealingClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. party by certified mail, return receipt requested.

5. AppealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from the determination can be taken by filing a petition in the nature of certiorari with the Durham County Superior Court. If the decision is not appealedClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. it shall be considered a final decision subject to enforcement with no rights of appealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision..

D. Safeguards from Undue Economic Hardship

1. Right of Claim of Economic Hardship

The property ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. is entitled to make a claim of undue economic hardship if the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. is unable to make needed repairs to the property because it is economically unfeasible.

2. Issuance of Stay for Economic Hardship

In the event that the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. and/or other parties in interest do not wish to contest the determination regarding the condition of neglect, but do wish to petition for a claim of undue economic hardship, the Director’s order shall be stayed until after the HPC’s determination regarding the claim.

3. Process

If a claim of undue economic hardship is made, the Planning Director or designee shall receive all information from the property ownersClosed Any person having charge of any real property according to the records held by the Register of Deeds. that the HPC is entitled to receive pursuant to this Ordinance, make a determination regarding whether there is undue economic hardship, and developClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. a plan for dealing with such hardship, if it is found to exist. The recommendation and plan shall be sent to the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds., by certified mail, return receipt requested, with notice of the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds.’s rights to appealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. to the HPC within 30 days of receipt. If the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. disagrees with the recommendation and plan, the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. may request a hearing before the HPC. In the event of such a request, the hearing shall be a quasi-judicial hearing, in the nature of a BOA hearing and the decision shall be in writing, supported by findings and conclusions. The Planning Director’s determination as to economic hardship and the plan for dealing with that hardship shall be considered a final administrative determination, and any HPC decision altering such recommendation or plan shall be passed by the standards established in paragraph 2.4.6, Decisions.

4. Evidence Regarding Undue Economic Hardship

When a claim of undue economic hardship is made owing to the effects of this Article, the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. and/or parties in interest shall, where reasonably possible, provide the evidence below, describing the circumstances of hardship, and any additional evidence requested by the Director, or designee, or HPC or evidence the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. considers relevant.

a. Nature of ownership (individual, business, or nonprofit) or legal possession, custody, and control.

b. Financial resources of the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. and/or parties in interest.

c. Cost of repairs.

d. Assessed value of the land and improvements.

e. Real estate taxes for the previous two years.

f. Amount paid for the property, date of purchase, and party from whom purchased, including a description of the relationship between the ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. and the personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. from whom the property was purchased, or other means of acquisition of title, such as by gift or inheritance.

g. Annual debt service, if any, for previous two years.

h. Any listing of the property for sale or rent, price asked, and offers received, if any.

i. Annual gross income, if any, from the property for the previous two years.

j. Itemized operating and maintenance expenses for the previous two years, including proof that adequate and competent management procedures were followed.

k. Annual cash flow, if any, for the previous two years.

5. Plan to Relieve Economic Hardship

A recommended plan to relieve the economic hardship shall include, but is not limited to, property tax relief as may be allowed under North Carolina law, loans or grants from the City, the County, or other public, private, or nonprofit sources, acquisition by purchase or eminent domain, changes in applicable zoning regulations, or relaxation of the provisions of this Article sufficient to mitigate the undue economic hardship. The Director, or designee, shall issue an order regarding the time period during which the property should be repaired, taking into account the provisions of the recommended plan.

E. Other City Powers; City’s Election of Remedies

Nothing contained within this Article shall diminish the City’s power to declare a buildingClosed As defined in the North Carolina Building Code, as amended, or the North Carolina Residential Code for One and Two-Family Dwellings, as amended, as applicable. unsafe or in violationClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of the minimum housing code or any other applicable statute or code. In addition, the procedures described herein are mandatory only for determinations being made solely under the authority of this section. Where other sections of the City Code apply, the City may, in its discretion, choose to process any action regarding the property under such other provisions alone, or under such provisions along with these provisions concurrently, or solely under these provisions. The City may also suspend the procedures of this section at any time if an action has been initiated under other applicable law.

F. Penalties and Remedies

Enforcement of this Article shall be by any one or more of the following methods, and the institution of any action under any of these methods shall not relieve any party from any other civil or criminal proceeding prescribed for violationsClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. and prohibitions.

1. Equitable Remedy

The City may apply for any appropriate equitable remedy to enforce the provisions of this Article.

2. Order of Abatement

The City can apply for and the court may enter an order of abatement. An order of abatement may direct that improvements or repairs be made, or that any other action be taken that is necessary to bring the property into compliance with this Article. Whenever the party is cited for contempt by the court and the City has executed the order of abatement, the City shall have a lien on the property for the cost of executing the order of abatement.

3. Civil Penalty

Civil penalties can be assessed for failure to comply with a final administrative determination or an un-appealed HPC decision under the provisions and guidelines for assessing such penalties for zoning code violationsClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance.. Prior to imposing a civil penalty, the City-County Planning Department shall deliver a written notice by personalClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. service or by registered mail or by certified mail, return receipt requested, to the personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. responsible for the violationClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. indicating the nature of the violationClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. and ordering corrective action. Where the violationClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. is the failure to remedy a condition of neglect within the time periods provided by the Director, or designee, or the HPC no additional time period for compliance need be given. The notice shall include information regarding the possible assessment of civil penalties and other possible enforcement actions. If this notice is appealedClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. to the Board of Adjustment, the Board shall not rehear any issue that was heard by the HPC or could have been so heard had an appealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. to the HPC been made. Rather, the Board of Adjustment shall limit the scope of its review to whether there has been compliance with the Director’s determination or the HPC’s determination, as applicable.