Condemning Unsafe Nonresidential Structures

Richard DuckerSchool of Government

UNC – Chapel HillMarch 23, 2007

Regulatory Tools andSources of Statutory

Authority• (1) Nonresidential

and residential unsafe building condemnation (G.S. 160A-426(a))

• (2) Nonresidential unsafe building condemnation (G.S. 160A-426(b))

• (3) Abatement of public nuisance (G.S. 160A-193

Regulatory Tools andSources of Statutory

Authority• (4) Minimum housing

(G.S. 160A-441)• (5) General

ordinance-making power (G.S. 160A-174

• (6) Abandoned structure ordinance (G.S. 160A-441, 2nd §)

• (7) Demolition by neglect (historic preservation ordinance) (G.S. 160A-400.14(b))

Nonresidential Condemnation

(Section 426(a) Property)• May be either building or structure

• Must be “especially dangerous to life” because of fire or because of condition of walls, floors, egress, defective construction, decay, unsafe wiring, “or other causes”

Nonresidential Condemnation

(Section 426(b) Property)• (1) Vacant or abandoned, AND

• (2) “In such a dilapidated condition as to cause or contribute to blight, disease, vagrancy, fire or safety hazard, to be a danger to children, or to attract persons intent on criminal activities or other activities that would be a public nuisance,”

• AND• (3) Located in a

community development target area

Community Development Target Area Must Be:

• A nonresidential redevelopment area OR

• An area that has characteristics of a development zone OR

• An area “with similar characteristics designated by the city council as being in special need of revitalization.”

Unsafe Building Condemnation Procedure

Generally• Procedure more

drastic and accelerated than property maintenance codes

• Placard-first approach

• No local ordinance required

Notice of Hearing

• “Owner” must be given notice by registered or certified mail or personal service

• If name or whereabouts of owner cannot be discovered by due diligence, then notice in newspaper OK

• No provision if owner refuses or fails to accept mail service

Hearing

• Hearing must be held no less than 10 days from notice date

• Hearing held “before the inspector”

Order• Inspector may order owner

to “remedy the defective conditions by repairing, closing, vacating, or demolishing. . . or taking other such necessary steps … as the inspector may prescribe”

• No express requirement the demolition be reserved for situations where cost of repair relatively high in comparison to value

• Owner given at least 60 days unless “imminent danger”

Appeals

• Must be taken to governing board within 10 days

• No appeal to Department of Insurance

• Board sits in a quasi-judicial capacity and has power to uphold, modify, or revoke the inspector’s order

Remedies

• Summary demolition actions questionable for section 426(a) properties (but perhaps may be coupled with action to abate a public safety nuisance)

• Summary demolition actions expressly authorized for section 426(b) properties

Lien Authority

• No express lien for demolition or removal costs for section 426(a) properties

• Two express liens for 426(b) properties:– Against property upon

which cost incurred– Against same owner’s

property within city or within one mile of city, (except for primary residence)

Liens and Other Arrangements

• City must sell salvageable materials and credit proceeds against demolition costs

• No express lien for demolition or removal costs for section 426(a) properties

• Two express liens for 426(b) properties:– Against property upon

which cost incurred– Against same owner’s

property within city or within one mile of city, (except for primary residence)

Disadvantages of Summary Abatement

• Lack of judicial authorization for:– Whether demolition

is proper remedy– The manner in which

owner is notified of demolition or removal action

– “Seizure “ when building demolished or moved

Constitutional Issues

• Taking of property without just compensation

• Procedural due process• Fourth Amendment

right to be free from unreasonable searches and seizures

•