Unified Development Ordinance

Article 11.8. Demolition by Neglect of Historic Landmarks and Structures Within Historic Overlay Districts

Article 11.8. Demolition by Neglect of Historic Landmarks and Structures Within Historic Overlay Districts aaron.sheppard… Mon, 05/08/2023 - 10:43

Sec. 11.8.1. Applicability

Sec. 11.8.1. Applicability aaron.sheppard… Wed, 05/24/2023 - 10:21
  1. The purpose of this section is to prevent the gradual deterioration of historic resources due to a failure to provide normal and customary maintenance such that the unique attributes and character of the resource or historic district might be lost due to decay, deterioration or structural defects.
  2. The exterior features of any building or structure (including walls, fences, light fixtures, steps, pavement, paths, or any other appurtenant feature), or any type of outdoor advertising sign either designated as a Historic Landmark or found to be a contributing resource to the Historic Overlay District shall be preserved by the property owner against decay and deterioration and kept free from structural defects. For purposes of this section, the term “property owner” shall include such other person who may have interest, legal possession, custody, and/or control of the property
  3. Only Historic Landmarks and contributing resources to Historic Overlay Districts shall be governed by this section.
  4. Only the Raleigh Historic Development Commission may file a petition alleging Demolition by Neglect to a contributing Historic Resource.
  5. Petitions alleging Demolition by Neglect shall be filed and considered in accordance with the provisions of this Article.
  6. Nothing contained within this Article shall diminish the City's power to declare an unsafe building or a violation of the minimum housing code.

Sec. 11.8.2. Petition and Action

Sec. 11.8.2. Petition and Action aaron.sheppard… Wed, 05/24/2023 - 10:27
  1. Filing of Petition
    1. Petitions charging that a structure is undergoing demolition by neglect shall be filed with the City.
    2. The Historic Development Commission may file a petition on its own initiative.
    3. Any official, commission, or department of the City of Raleigh, any state agency, or any local or state historical, preservation, neighborhood, or business association may request in writing to the Historic Development Commission that it make a preliminary investigation of a structure to determine whether a basis exists for a determination of demolition by neglect.
    4. The Historic Development Commission shall complete an investigation and notify the requestor in writing within 60 days the results of its preliminary investigation. The commission is under no obligation to file a petition on any structure. Should the commission determine that a petition is warranted, the commission shall prepare and file such petition within 90 days of its notification to the requestor.
    5. Petitions shall be filed in a format determined by the Historic Development Commission to clearly describe and illustrate the specific defects citing in each instance the specific standard or standards (as outlined in Sec. 11.8.5.) being violated.
    6. A petition alleging demolition by neglect may not be filed for the same property more frequently than once every 2 years.
  2. Methods of Service
    1. Complaints, notices, or orders issued by the Director shall be served upon property owners either personally or by registered or certified mail.
    2. If the whereabouts of such persons are unknown and the same cannot be ascertained by the Director in the exercise of reasonable diligence, and the Director shall make an affidavit to that effect stating the steps taken to determine and locate the property owners, then the serving of such complaint, notice, or order may be made by publishing the same once each week for 2 successive weeks in a newspaper generally circulated within the City. Where such service is by publication, a notice of the pending proceedings shall be posted in a conspicuous place on the premises thereby affected.
  3. Hearing on Petition
    1. Whenever a petition is filed with the City charging that a structure is undergoing demolition by neglect, the Director shall make a preliminary investigation of the charges within 21 days of the filing of the petition.
    2. If after preliminary investigation the Director determines that the charges in the aggregate do not rise to the applicability of Sec. 11.8.1.A. and Sec. 11.8.1.B., the Director shall provide written notification to the Historic Development Commission outlining in general terms the reasons for not applying the provisions of this section. The petition shall be returned to the Historic Development Commission.
    3. If the investigation discloses a basis for such charges, within 14 additional days the Director shall issue and cause to be served upon the property owners, as may be determined by reasonable diligence, a complaint stating the charges in that respect, including a copy of the petition and this section of the UDO. The complaint shall contain a notice that a hearing will be held before the Director at a place fixed not less than 30 nor more than 45 days after the serving of such complaint; that the property owners shall be given a right to give testimony at the place and time fixed in the complaint; and that the rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Director. The Historic Development Commission shall also be given notice of the hearing.
    4. The purpose of the hearing is to receive evidence concerning the charge of deterioration and to ascertain whether the property owner wishes to make a claim of undue economic hardship.
  4. Action on Petition
    1. If after notice and hearing the Director determines that the structure is not undergoing demolition by neglect according to the applicability of Sec. 11.8.1.A. and Sec. 11.8.1.B. as judged by the standards of Sec. 11.8.5., the Director shall within 30 days of the hearing state in writing the findings of fact for not applying the provisions of this section. The written findings and conclusion shall be sent to the property owners and the Historic Development Commission. The petition shall be returned to the Historic Development Commission.
    2. If after notice and hearing the Director determines that the structure is undergoing demolition by neglect because it is deteriorating, or if its condition is contributing to deterioration, according to the applicability of Sec. 11.8.1.A. and Sec. 11.8.1.B. as judged by the standards of Sec. 11.8.5., the Director shall within 30 days of the hearing state in writing the findings of fact in support of such determination and shall issue and cause to be served upon the property owners an order to repair within a reasonable time specified those elements of the structure that are deteriorating, contributing to deterioration, or deteriorated. A copy of the order shall also be sent to the Historic Development Commission.
    3. In the event that the property owners wish to make a claim of undue economic hardship, the Director's order shall be stayed until after the Hardship Review Panel's determination in accordance with the procedures of Sec. 11.8.3., except as provided in Sec. 11.8.4.B.

Sec. 11.8.3. Safeguards from Undue Economic Hardship

Sec. 11.8.3. Safeguards from Undue Economic Hardship aaron.sheppard… Wed, 05/24/2023 - 10:27
  1. Claim of Undue Economic Hardship
    1. When the property owners believe that they will be unable to obtain a reasonable return on or a reasonable beneficial use from the property owing to the effects of this section, written notice of intent to file a claim of Undue Economic Hardship must be sent to the City postmarked within 10 days following the hearing on the petition, unless oral notice of intent is made to the City during the hearing. The City shall notify the Historic Development Commission within 3 days following receipt of a written notice of intent.
    2. The Economic Documentation outlined in Sec. 11.8.3.C. shall be provided by the claimant to the City within 45 days following the hearing on the petition for transmittal to the Hardship Review Panel.
    3. Under this section, the claimant for economic hardship and the City, the Historic Development Commission, the Hardship Review Panel, and any interested party shall consult in good faith in a diligent effort to seek an alternative that will result in preservation of the property. Such efforts shall be documented by the claimant and presented at the hearings described in Sec. 11.8.3.B.
  2. Hardship Review Panel
    1. A Hardship Review Panel shall be established to analyze documentation submitted in support of claims of undue economic hardship. The panel shall prepare a report of its determination whether the evidence supports a conclusion that the property owners will be unable to obtain a reasonable return on or a reasonable beneficial use from the property owing to the effects of this section. If in the panel’s opinion a hardship exists, the report may also offer recommendations for relief of the economic hardship.
    2. The City shall coordinate the selection of an ad hoc review panel. The panel shall be comprised of real estate and redevelopment experts knowledgeable in real estate economics in general, and more specifically, in the economics of renovation, redevelopment and other aspects of rehabilitation.
    3. The panel shall consist of 3 persons. Two of the persons shall be selected within 30 days of the hearing on the petition – one by the Historic Development Commission and one by the claimant. The third person shall be selected by the first 2 appointees. The City and the claimant shall bear the cost of their respective selectees and shall split the cost of the third person. If the first 2 appointees cannot agree on a third person within 45 days of the date of the hearing on the petition, the third appointee shall be selected by the City within 5 days after the expiration of the 45-day period. Members of the review panel may not be:
      1. A person with financial interest in the property;
      2. An employee of or paid consultant to the claimant, the City, or the Historic Development Commission; or
      3. A person that has generated or been involved with any of the economic documentation outlined in Sec. 11.8.3.C.
    4. The City shall provide the Hardship Review Panel with the Economic Documentation provided by the claimant within 5 days of the panel’s formation or when the documentation is received, whichever occurs later.
    5. Within 90 days of the hearing on the petition for Demolition by Neglect, the Hardship Review Panel shall review the Economic Documentation, hold a hardship hearing, and forward its findings and determination to the City.
      1. The City shall provide notice that a hardship hearing will be held before the panel at a place fixed not less than 30 nor more than 45 days after the panel is formed; that the property owners shall be given a right to give testimony at the place and time fixed in the complaint; and that the rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Hardship Review Panel. The Historic Development Commission shall also be given notice of the hearing.
      2. The panel shall hold its initial meeting to review the claimant’s submitted Economic Documentation within 10 days of when the panel is formed. The panel may at any time request any additional information as set forth in Sec. 11.8.3.C.
      3. The purpose of the hardship hearing is to review the claimant’s submitted Economic Documentation, receive additional evidence concerning the claim of undue economic hardship, and to ascertain whether additional economic documentation is required.
      4. Following the Hardship Review Panel’s hearing on the claim, the panel shall consider all information received and cause to be made a determination of undue or no undue economic hardship. The panel shall prepare a written report of its determination that shall include findings of fact for such determination.
      5. If in the panel’s opinion a hardship exists, the panel’s report shall establish a monetary value of capital expenditure on the property that the panel believes would yield a return on the investment without economic hardship. If the panel believes the property cannot support any capital expenditure, it shall so state. The panel may also offer recommendations for relief of the economic hardship.
    6. The determination of the Hardship Review Panel shall be final, subject to appeal as noted in Sec. 11.8.4.B.
  3. Economic Documentation
    1. When a claim of undue economic hardship is made owing to the effects of this Article, the property owners must provide evidence describing the circumstances of hardship. The minimum evidence provided by the property owners shall include for all property:
      1. The property owner's knowledge of the landmark or historic overlay designation at the time of acquisition, or whether the property was designated subsequent to acquisition;
      2. Form of ownership or operation of the property (sole proprietorship, for-profit corporation or non-profit corporation, limited partnership, joint venture, etc.) or legal possession, custody, and control;
      3. Amount paid for the property, date of purchase, and party from whom purchased, including a description of the relationship between the owner and the person from whom the property was purchased, or other means of acquisition of title, such as by gift or inheritance, and any terms of financing between buyer and seller;
      4. The annual gross and net income, if any, from the property for the previous 3 years;
      5. Itemized operating and maintenance expenses for the previous 3 years, including proof that adequate and competent management procedures were followed;
      6. Past capital expenditures during ownership of current owner;
      7. Depreciation deduction and annual cash flow before and after debt service, if any, for the previous 3 years;
      8. Remaining balance on any mortgage or other financing secured by the property and annual debt service, if any, during the previous 3 years;
      9. Real estate taxes for the previous 3 years and assessed value of the property according to the 2 most recent Wake County assessed valuations;
      10. All appraisals obtained within the previous 3 years by the owner or applicant in connection with the purchase, financing or ownership of the property;
      11. Any state or federal income tax returns on or relating to the property for the previous 3 years;
      12. Any listing of the property for sale or lease within the previous 3 years, price asked and any offers received, the name of the any real estate broker or firm engaged to sell or lease the property, and any advertisements placed for the sale or rent of the property;
      13. A report from a licensed engineer or architect with experience in rehabilitation as to the structural soundness of any structures on the property and their suitability for rehabilitation;
      14. An estimate of the cost of the required construction, alteration, repair, demolition, or removal required by the order;
      15. The estimated market value of the property in its current condition and such value after completion of the required construction, alteration, repair, or removals;
      16. A report from an architect, developer, real estate consultant, appraiser, or other professional experienced in rehabilitation as to the economic feasibility of rehabilitation or reuse of the existing structure on the property;
      17. An analysis of common costs expended in both rehabilitation and comparable new construction immaterial to which type of project is undertaken;
      18. Economic incentives and/or funding available to the applicant through federal, state, city, or private programs.
    2. The review panel may receive and consider studies and economic analyses from other city agencies and from private organizations relating to the property in question.
    3. The review panel may require that the property owners furnish such additional information that is relevant to its determination of undue economic hardship. The review panel may request the City to furnish additional information as it believes is relevant. The review panel shall also state which forms of financial proof it deems relevant and necessary to a particular case.
    4. In the event that any of the required information is not reasonably available to the property owners or the City and cannot be obtained by the owner or the City, the owner or City shall describe the reasons why such information cannot be obtained.
  4. Action on Hardship Review Panel’s Determination
    1. The City shall provide a copy of the Hardship Panel’s report to the property owner and to the Historic Development Commission.
    2. In the event of a determination of no undue economic hardship, the City shall cause to be re-issued the stayed order for such property to be repaired within the time specified.
    3. In the event of a determination that undue economic hardship would result from an order to repair, the Historic Development Commission shall within 60 days of its receipt of the report prepare a Plan for Relief of Economic Hardship.
    4. Should the Historic Development Commission fail to act within 60 days of its receipt of the report, the City shall rescind the order for repair and return the petition to the Historic Development Commission.
  5. Plan for Relief of Economic Hardship
    1. In the event of a determination of undue economic hardship, the Historic Development Commission shall develop a plan to relieve the economic hardship. This plan may include, but is not limited to,
      1. Capital expenditure by the property owner,
      2. Property tax relief as may be allowed under North Carolina law,
      3. Loans or grants from the City, the County, or other public, private, or nonprofit sources,
      4. Acquisition by purchase or eminent domain,
      5. Building code modifications,
      6. Changes in applicable zoning regulations, or
      7. Relaxation of the provisions of this section sufficient to mitigate the undue economic hardship.
    2. The Commission shall give precedence to recommendations for relief of hardship contained in the report of the Hardship Review Panel, if any; the plan should include the Commission’s rationale for not incorporating any Panel recommendations into the Commission’s plan. The plan should also include a statement documenting good faith consultation as outlined in Sec. 11.8.3.A.3.
    3. The Commission’s plan shall utilize the Hardship Review Panel’s estimation of monetary value of capital expenditure outlined in Sec. 11.8.3.B.5.e. (if any) as a budget figure to recommend prioritized repairs that shall to the greatest extent possible stabilize the effects of deterioration upon the property.
    4. The Commission shall report its plan to the City. The City shall provide notice that a hearing will be held before the Director at a place fixed not less than 10 nor more than 25 days after the report is received; that the property owners, the Historic Development Commission, and the Hardship Review Panel shall be given a right to give testimony; and that the rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Director. The Historic Development Commission and Hardship Review Panel shall also be given notice of the hearing.
    5. Following the hearing, City shall either approve the Plan or refer it to the Historic Development Commission for amendment. Referrals for amendment shall specify items to be amended. The amended report shall be returned to the City by the Historic Development Commission within 15 days. Upon receipt of the approved or amended Plan, the City shall cause to be re-issued the stayed order for such property to be repaired within the time specified, and according to the provisions of the approved plan.

Sec. 11.8.4. Appeals

Sec. 11.8.4. Appeals aaron.sheppard… Wed, 05/24/2023 - 10:28
  1. Determination of Demolition by Neglect
    Determinations made by the Planning Director may be appealed to the Board of Adjustment. To perfect such an appeal, application must be filed by an aggrieved party with the Board of Adjustment within 10 days following receipt of the order for repair of the property. Appeals shall be in the nature of certiorari.
  2. Determination of Undue Economic Hardship
    Determinations made by the Hardship Review Panel and the Plan for Relief of Economic Hardship prepared by the Historic Development Commission may be appealed to the Board of Adjustment. To perfect such an appeal, application must be filed by an aggrieved party with the Board of Adjustment within 10 days following receipt of the determination or the order for repair of the property. Appeals shall be in the nature of certiorari.

Sec. 11.8.5. Standards

Sec. 11.8.5. Standards aaron.sheppard… Wed, 05/24/2023 - 10:29
  1. Determination of Demolition by Neglect
    The property owners shall, upon written request by the City, repair such exterior features if they are found to be deteriorating, or if their condition is contributing to deterioration, including but not limited to any of the following defects:
    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 covering.
    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 upon the special character of the district as a whole or the unique attributes and character of the Historic Landmark.
    12. Deterioration of any exterior feature so as to create or permit the creation of any hazardous or unsafe conditions to life, health, or other property.
  2. Determination of Undue Economic Hardship
    1. The determination of undue economic hardship is based solely on the characteristics of the property, independent of the owner or ownership.
    2. When a claim of undue economic hardship is made, the burden of proof is upon the owner and/or parties in interest to demonstrate that:
      1. The hardship is not of their own making; and
      2. The property is incapable of providing a reasonable return on investment, regardless of whether that return represents the most profitable return possible, or the property is incapable of providing a reasonably beneficial use; and
      3. The property cannot be adapted for any other use, whether by the current owner or by a purchaser, which would result in a reasonable return or beneficial use; and
      4. Efforts to find a purchaser interested in acquiring the property and preserving it have failed.