AGENDA #1

MEMORANDUM

TO: Mayor and Town Council

FROM: W. Calvin Horton, Town Manager

SUBJECT: Public Hearing: Land Use Management Ordinance Text Amendment, Demolition by Neglect in Historic Districts

DATE: January 19, 2005

INTRODUCTION

This Public Hearing has been called to consider changes to the Land Use Management Ordinance regarding the possibility of enacting a demolition by neglect regulation in the local historic districts to help avoid the deterioration of historic buildings. This report provides a discussion of the proposed changes.

During Council discussions with advisory boards related to the preparation of the budget for the 2004-05 fiscal year, the Historic District Commission suggested that the Council consider enacting a regulation that would require that historic buildings be maintained to a certain standard to prevent their continued deterioration. The Commission subsequently drafted a proposed Ordinance.

On April 14, 2004, the Town Council referred the proposal to the Historic District Commission, Planning Board, and Town Manager for recommendations. The Public Hearing was originally scheduled for October 18, 2004.

On September 27, at the request of the Historic District Commission, the Town Council delayed the Public Hearing to January 19, 2005, to allow time for additional research by the Historic District Commission.

DISCUSSION

Presently, the Town’s Land Use Management Ordinance includes regulations on the demolition of structures in the Town’s Historic Districts. In those districts, in order to demolish a structure it is necessary to receive a Certificate of Appropriateness from the Historic District Commission.

Except for structures determined by the State to have “statewide significance,” certificates to allow demolition cannot be denied. (N.C.G.S. Sec. 160A-400.14 (a)) However the issuance of such a certificate can be delayed by the Commission for up to one year. The purpose of this authority to delay demolition is, in part, to allow the opportunity for other options to be considered that may allow for the preservation of a particular structure. Under the Historic District regulations, structures that are in an unsafe or dangerous condition, as determined by the Building Inspector, may be exempted from the need for such a Certificate.

There is no provision in the Town’s current Historic District Ordinances that would require an owner of a structure in a Historic District to maintain a structure so as to prevent it from reaching the condition where demolition is deemed economically feasible or necessary.

Such an ordinance is authorized by State Law. N.C.G.S. Sec. 160A-400.14 (b) provides:

b) The governing board of any municipality may enact an ordinance to prevent the demolition by neglect of any designated landmark or any building or structure within an established historic district. Such ordinance shall provide appropriate safeguards to protect property owners from undue economic hardship.

Enactment of a demolition by neglect ordinance would not override other provisions of the Land Use Management Ordinance pertaining to Certificates of Appropriateness for demolition referred to above.

PROPOSED ORDINANCES

The Historic District Commission has prepared a draft ordinance that would authorize the Town to require maintenance of deteriorating structures in Historic Districts, unless a permit were to be obtained to demolish such structures. We have reviewed this proposal in consultation with the Town Attorney. Based on this review and consultation, we believe that the Commission’s proposed ordinance follows the intent of the State enabling legislation, but prescribes enforcement procedures that would be difficult to administer and would likely not be defensible. Accordingly, we have drafted an alternate version of the ordinance that would align enforcement procedures for these new regulations with the existing framework of zoning enforcement for Chapel Hill, in a manner that we believe is practical, defensible, and workable. The Historic District Commission completed its work on December 4, 2004 (Ordinance B, attached). Based on their proposal and our review, we prepared an alternate ordinance (Ordinance A, attached).

The key difference between the two draft ordinances is the process for enforcement. The Commission’s proposal calls for enforcement to be triggered only by citizen complaints, of specified number with a specified period, and prescribes that the Commission would direct the Town Manager in how to proceed with subsequent enforcement. We do not believe that this system would be workable or authorized by State law. The alternate ordinance that we offer (Ordinance A) builds on the ideas of the Historic District Commission, directs enforcement through standard authorized mechanisms, and requires the Town Manager to consult with the Commission as decisions are made regarding enforcement. In addition, the Manager’s preliminary recommendation includes a provision (5.17.3) to allow relief if the new Ordinance causes undue economic hardship, as required by the Statute.

RECOMMENDATIONS

Historic District Commission Recommendation: On December 9, 2004, the Historic District Commission unanimously voted to recommend enactment of the attached Ordinance B. Please refer to the attached Summary of Historic District Commission Action.

Planning Board Recommendation: On January 4, 2005, the Planning Board voted 5-0 to recommend enactment of the attached Ordinance A. Please refer to the attached Summary of Planning Board Action. Ordinance A addresses the Planning Board concern about potential hardship on property owners.

Manager’s Preliminary Recommendation: We recommend that the Council adopt the attached Ordinance A to amend the Land Use Management Ordinance provisions, enacting demolition by neglect regulations to attempt to avoid the deterioration of historic buildings. Ordinance A builds on the ideas presented by the Historic District Commission, includes enforcement mechanisms aligned with the current administrative procedures, and includes provisions regarding economic hardship.

ATTACHMENTS

1. Ordinance A (p. 4).

2. Ordinance B (p. 7).

3. Summary of Historic District Commission Action (p. 12).

4. Summary of Planning Board Action (p. 13).

ATTACHMENT 1

ORDINANCE A

(Planning Board and

Manager’s Preliminary Recommendations)

AN ORDINANCE AMENDING THE CHAPEL HILL LAND USE MANAGEMENT ORDINANCE to ESTABLISH DEMOLITION BY NEGLECT PROVISIONS IN THE HISTORIC DISTRICTS

WHEREAS, State law, N.C.G.S. Sec. 160A-400.14 (b), authorizes the Town to enact regulations to prevent the demolition by neglect of any designated landmark or any building or structure within an established historic district;

NOW, THEREFORE, BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:

Section 1. A new Section 5.17 is hereby added to the Chapel Hill Land Use Management Ordinance to read as follows:

“5.17 Prevention of Demolition by Neglect

5.17.1 Intent

The purpose of this ordinance is to protect Chapel Hill’s historic architectural resources by intervening when a significant resource is undergoing demolition by neglect.

Demolition by neglect is defined as a situation in which a property owner, or others having legal possession, custody or control of a property, allow the condition of property located in a Historic District to suffer such deterioration, potentially beyond the point of repair, as to threaten the structural integrity of the structure or its relevant architectural detail to a degree that the structure and its character may potentially be lost to current and future generations.

5.17.2 Control of Demolition by Neglect of Structures within Designated Historic Districts

(a) In order to promote the purposes of historic preservation, this subsection requires that owners of historic properties maintain their properties and not allow them to fall into disrepair. The requirements of this subsection are applicable only to properties in the Historic Districts of Chapel Hill.

(b) Conditions of Neglect Defined and Prohibited

Owners or others having legal possession, custody or control of a property in Historic Districts shall maintain or cause to be maintained the exterior and structural features of their properties and not allow conditions of neglect to occur on such properties. It is a violation of the Town’s Land Use Management Ordinance to not remedy a condition of neglect within the period of time set by a final administrative determination, as described in Section 5.17.2(c), below.

Conditions of neglect include, but are not limited to, 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 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) Deterioration that has a detrimental effect on the surrounding historic district

(10) Deterioration that contributes to a hazardous or unsafe condition.

Enforcement of these provisions shall be undertaken as described in Section 4.13 of the Land Use Management Ordinance (“Violations and Procedures”), with the following additional components:

(i) If the Town Manager makes a preliminary determination that a property in a Historic District is being neglected, as defined in Section 5.17.2(b), the Manager shall inform the property owner of the preliminary determination and notify the Historic District Commission of the preliminary determination. The Town Manager will seek remedial action by the property owner.

(ii) If remedial action has not commenced within 30 days of initial notification, the Town Manager, after consultation with the Historic District Commission, shall make a finding of violation of the Land Use Management Ordinance. Procedures outlined in Section 4.13 shall be followed, including notification of right to and process for appeal as described in Section 4.12.

5.17.3 Variances for Undue Economic Hardship

Where a determination made under the provisions of this Section would, in any particular case, cause undue economic hardship to a property owner, the Board of Adjustment shall grant such variance as it deems necessary to eliminate that undue economic hardship. A property owner shall be required to demonstrate, through competent substantial evidence, the existence of undue economic hardship. Evidence of such hardship may include, by way of illustration: An appraisal of the property before and after the proposed renovation or repair; and the estimated cost of the repair in relation to such appraisals.

5.17.4 Stay of Proceedings

Issuance of an approved Certificate of Appropriateness for improvements, accompanied by actions to bring the property into compliance with this Section, will stay an enforcement proceeding seeking compliance with this Section for said property.

5.17.5 Other Town Powers

Nothing contained within this article shall diminish the Town's power to declare an

unsafe building or a violation of the minimum housing code.

Section 2. That all ordinances and portions of ordinances in conflict herewith are hereby repealed.

Section 3. That these amendments shall become effective upon adoption.

This the ___ day of ____, 2005.

ATTACHMENT 2

ORDINANCE B

(Recommended by Historic District Commission)

AN ORDINANCE AMENDING THE CHAPEL HILL LAND USE MANAGEMENT ORDINANCE to ESTABLISH DEMOLITION BY NEGLECT PROVISIONS IN THE HISTORIC DISTRICTS

NOW, THEREFORE, BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:

Section 1. A new Section 5.17 is hereby added to the Chapel Hill Land Use Management Ordinance to read as follows:

“5.17 Prevention of Demolition by Neglect

5.17.1 Intent

The purpose of this ordinance is to permit the Town of Chapel Hill, through its Historic District Commission and the Town Manager, to protect its historic architectural resources by intervening when a significant resource is undergoing demolition by neglect.

Demolition by neglect is defined as a situation in which a property owner or others having legal possession, custody or control allows the condition of property located in the Historic Districts to suffer such deterioration, potentially beyond the point of repair, as to threaten the structural integrity of the structure or its relevant architectural detail such that the structure and its character may potentially be lost to current and future generations.

A significant resource, as the term is used in this ordinance, is defined as any property, structure or architectural resource which was designated as “contributing” in a Chapel Hill Historic District nomination to the National Register of Historic Places or which is located within one of the Chapel Hill Historic Districts.

5.17.2 Control of Demolition by Neglect of Certain Structures within Designated Historic Overlay Districts

(a) Applicability. In order to promote the purposes of the Historic District this subsection requires that owners of certain historic properties maintain their properties and not allow them to fall into disrepair. The requirements of this subsection are applicable only to properties in the Historic Districts of Chapel Hill.

(b) Conditions of Neglect Defined and Prohibited

Owners or others having legal possession, custody or control 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 is a violation of the Town’s Land Use Management 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 Section (5.16). Conditions of neglect include, but are not limited to, the following:

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

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

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

d. Deterioration or crumbling of exterior plasters or mortars.

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

f. 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.

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

h. 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.

i. Deterioration that has a detrimental effect on the surrounding historic district

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

(1) Any citizen who believes demolition by neglect is occurring with respect to any particular property in one of the Town’s Historic Districts may make a written complaint to the Inspections Department. Such a complaint must include a clear description of the property and the nature of the deterioration claimed to constitute demolition by neglect.

(2) Upon receipt of 2 complaints pertaining to the same structure from unique addresses within a calendar year, the Town will conduct a preliminary investigation and prepare a staff report. Staff will update the report on a quarterly basis (January, April, July, October). The Town staff member who makes the preliminary investigation may consult, at his discretion, with professionals including, but not limited to: architects, landscape architects, engineers, building inspectors and historic preservationists.

(3) If the Town finds that the complaint has a basis in fact, it will notify the property owner that a complaint has been received. A staff report will be brought before the Historic District Commission in no fewer than 30 days. If the preliminary investigation does not substantiate the complaint, the complaint is resolved and no further action will be taken.

(4) The first letter of notice to the property shall include: a) a description of the process, b) how the property owner or others having legal possession, custody or control can resolve the issue immediately, and, c) reports documenting the violations.

(5) The Town Manager will forward the complaint and staff report to the Historic District Commission at its next regularly scheduled meeting after the 30 days in subsection (3) have elapsed.

(6) The Historic District Commission will review complaints and staff reports and accept information from the owner and other interested persons. Based on the information received, the Commission may file a decision. If the Commission determines there are specific defects with the subject property it will notify the Town Manager or a designee to act under the procedures set out below to require the correction of deterioration or making of repairs to the significant structure.

(7) Whenever a decision of the Historic District Commission is filed with the Town Manager, the Town shall issue and cause to be served upon the owner and/or such other person who may have legal possession, custody, and control thereof, as the same may be determined by reasonable diligence, a written finding stating that the Historic District Commission has reason to believe that the property is undergoing demolition by neglect.

(8) The written finding shall identify the specific condition(s) at the property which have led to that determination, and shall contain a notice that a hearing will be held before the Town Manager at a place within the Town not less than thirty (30) nor more that forty-five (45) days after the serving of such order.

(9) The written finding shall also state that the owner and/or parties in interest shall be given a right to answer and to give testimony at the hearing; that the Historic District Commission shall also be given notice of the hearing; and that the rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Town Manager or his designee. The purpose of the hearing is to receive evidence concerning the charge of deterioration

(10)If after such finding and hearing, the Town Manager determines that the structure is undergoing demolition by neglect because it is deteriorating, or if its condition is contributing to deterioration, the Town Manager shall state in writing the findings of fact in support of such determination and shall issue and cause to be served upon the owner and/or other parties in interest therein an order to repair within a time to be specified in the written decision those elements of the structure that are deteriorating, contributing to deterioration, or deteriorated.

5.17.3 Stay of Proceedings

An approved Certificate of Appropriateness and arrangements to bring the property into compliance agreed upon by the property owner and/or other parties in interest, and the Town Manager or Historic District Commission, will stay all proceedings under this section.

5.17.4 Methods of Service of Complaints or Orders

Complaints or orders issued by the Town Manager shall be served upon persons either personally or by certified mail. If the whereabouts of such persons are unknown and the same cannot be ascertained by Town Manager in the exercise of reasonable diligence, (and Town Manager shall make an affidavit to that effect, stating the steps taken to determine and locate the persons in interest), then the serving of such complaint or order may be made by publishing the same once each week for two (2) successive weeks in a newspaper generally circulated within the Town. Where such service is by publication, a notice of the pending proceedings shall be posted in a conspicuous place on the premises thereby affected.

5.17.5 Appeals

Findings under this Section made by the Commission may be appealed to the Board of Adjustment. To perfect such an appeal, a written application must be filed by an aggrieved party with the Board of Adjustment within ten (10) business days following receipt of the order for repair of the property or determination. Appeals shall be in the nature of certiorari (review of a quasi-judicial decision) such that the Board of Adjustment may review the record of the proceedings before the Commission (as the case may be) to ensure that all procedures required by this ordinance have been followed, and to ensure that the decision appealed from is supported by competent evidence in the record. However, the Board of Adjustment may not substitute its judgment for that of the Historic District Commission unless it concludes that either (i) there has been a procedural error which has resulted in prejudice to the appellant or (ii) there is no competent evidence in the record to support the decision. In the event that there is competent evidence in the record which supports the decision appealed from and competent evidence in the record against the decision, the Board of Adjustment may not reverse the decision.

5.17.6 Exemption

Properties actively listed and marketed by a licensed real estate agent will have enforcement waived for a period not to exceed six months. However, both the property owner and/or parties in interest will be notified in writing that the property has received verified complaints under this section.

5.17.7 Other Town Powers

Nothing contained within this article shall diminish the Town's power to declare an

unsafe building or a violation of the minimum housing code.

5.17.8 Penalties and Remedies

Enforcement of this article may 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 violations and prohibitions.

(a) Equitable Remedy--- The Town may apply for any appropriate equitable remedy to enforce the provisions of this article.

(b) Order of Abatement--- The Town may 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 Town executed the order of abatement, the Town shall have a lien, in the nature of a mechanic's and material man’s, on the property for the cost of executing the order of abatement.

(c) Civil Penalty--- No civil penalty shall be levied unless and until the Planning Department shall deliver a written notice by personal service by certified mail, return receipt requested, to the person responsible for each violation indicating the nature of the violation and ordering corrective action. The notice shall also set forth the time period when corrective measures must be completed. The notice shall state that failure to correct the violation within the specified time period will result in the assessment of civil penalties and other enforcement action. If, after the allotted time period has expired and after the hearing of an appeal (if any) by the Board of Adjustment, corrective action has not been completed, a civil penalty shall be assessed in the amount of one hundred dollars ($100.00) per day of continuing violation.”

Section 2. That all ordinances and portions of ordinances in conflict herewith are hereby repealed.

Section 3. That these amendments shall become effective upon adoption.

This the ___ day of ____, 2005.