3.18.2 Process and Administration

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 person who is familiar with the subject property, which may include but not be limited to a City employee.

On receipt of a petition, the Director, or designee, shall notify the owners 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 owner the opportunity to meet in person with the Director, or designee, and to present any relevant information. Notice shall be delivered by personal 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 office within 15 days of mailing. In the case of notice by first class mail, notice shall also be posted on the property. Notice of the investigation may also be given to the owners of nearby or adjacent properties or neighborhood associations.

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 owner, other persons who have received notice, or other interested persons may give information;

c. Issue a written determination, supported by findings of fact, regarding the allegation within 45 days of the owner’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 owner or other persons;

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 appeal to the HPC; and

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

The above process may be suspended in the event the owner 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.

1. If the property owner disagrees with the Director’s determination, the owner can appeal 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 appealed 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 appealing party by certified mail, return receipt requested.

5. Appeal 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 appealed, it shall be considered a final decision subject to enforcement with no rights of appeal.

The property owner is entitled to make a claim of undue economic hardship if the owner is unable to make needed repairs to the property because it is economically unfeasible.

In the event that the owner 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.

If a claim of undue economic hardship is made, the Planning Director or designee shall receive all information from the property owners that the HPC is entitled to receive pursuant to this Ordinance, make a determination regarding whether there is undue economic hardship, and develop a plan for dealing with such hardship, if it is found to exist. The recommendation and plan shall be sent to the owner, by certified mail, return receipt requested, with notice of the owner’s rights to appeal to the HPC within 30 days of receipt. If the owner disagrees with the recommendation and plan, the owner 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.

When a claim of undue economic hardship is made owing to the effects of this Article, the owner 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 owner considers relevant.

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

b. Financial resources of the owner 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 owner and the person 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.

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.

Nothing contained within this Article shall diminish the City’s power to declare a building unsafe or in violation 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.

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 violations and prohibitions.

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

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.

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 violations. Prior to imposing a civil penalty the City-County Planning Department shall deliver a written notice by personal service or by registered mail or by certified mail, return receipt requested, to the person responsible for the violation indicating the nature of the violation and ordering corrective action. Where the violation 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 appealed 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 appeal 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.