Site Information:
The subject property is 0.18 acres located on the north side of Montana Avenue, approximately 100 feet east of Madison Street (Exhibit “A”, Site Location Map). The site contains an 2,200 square foot duplex that was built in the early 1970s. The duplex is considered a legally nonconforming structure; only single-family dwellings are permitted within the R-3, Residential District. There was a fire in one of the two units which was never repaired. (Exhibit “B”, Case History Timeline).
Order to Demolish:
On April 8, 2015, the structure was inspected by the City’s Building Inspector and (former) Building Official. The Building Official determined that the structure meets criteria for demolition, per Code (see Exhibit “C”, Criteria for Demolition, Exhibit “D”, Demolition of Slum or Blighted Structures Investigation Form and Exhibit “E”, Site Photographs). The Order to Demolish requires that the owner demolish the structure and clear the site within 60 days of the date of the Order or by Monday, August 10, 2015 (Exhibit “F”).
The Code states that the Building Official must find the existence of one or more of seven possible criteria. The Order to Demolish was issued based on existence of the following three criteria:
· Section 6-185(1) - The structure or a portion thereof has been extensively damaged by fire, flood, wind, or other natural phenomena such that the building or structure is substantially destroyed or posed an immediate and manifest danger to the life, health or safety of the general public or occupant.
Building Official findings: The back unit was damaged by a fire and never repaired. Electrical, plumbing, and A/C systems were also damaged. The ceiling is falling inside the structure. The walls have holes in them. The windows are damaged and the glass is missing.
· Section 6-185(2) – The structure is so unsanitary or so utterly fails to provide the amenities essential to decent living that it is manifestly unfit for human habitation, or is likely to cause sickness or disease, so as to work injury to the life, health or safety on the general public or occupant. “Amenities essential to decent living” include, but are not limited to, the availability of potable water, at least one (1) working toilet, and protection from exposure to the elements.
Building Official findings: The water meter was removed from the property in 2008 and Duke Energy turned off the electricity in April, 2015. The dwelling unit has not been kept in a clean and sanitary condition. The interior has been damaged so that it is unsafe and unsanitary. The front door was left unsecured and a stray dog was found inside. The roof has not been properly maintained and broken windows/glass has exposed the house to weather conditions. Furniture, building materials and garbage were covering the floors throughout the inside of the structure. Duct work has been smoke damaged and the air conditioning is missing.
It also meets the definition of “dilapidated, deteriorated or decayed structure” by reason of inadequate maintenance, obsolescence or abandonment, is unsafe or unsanitary, and constitutes a fire hazard or other danger to life or property or is inadequate for the purpose for which such structure was intended. By definition, unfit or unsafe structures are a nuisance and unlawful.
· Section 6-185(7) – The structural parts have become so dilapidated, decayed or deteriorated, or there is an unusual sagging or leaning out of plumb of the building or any part thereof caused by deterioration or over-stressing of the structure or structural parts, that the structure is manifestly unsafe.
Building Official findings: The roof has not been maintained in a proper manner and has defects which admit rain and cause dampness in the walls of the interior portion of the building. Ceiling materials, including insulation, are hanging in the interior. Duct work was falling away from the underside of the structure and has been damaged and compromised. It appears that some trusses were fire damaged causing or adding to the dilapidated condition of the structure.
Appeal:
Under Section 6-190 of the Code (Exhibit “G”), the owner or an “interested party” may appeal an Order to Demolish. On July 9, 2015, an incomplete appeal was filed by an interested party (“petitioner”) (Exhibit “H”, Appeal Application). The Petitioner sought a temporary stay of the demolition order, which was denied by the Court; the City Attorney agreed to let the appeal proceed.
The Code provides that, as part of the appeal, the petitioner may appear to show:
1) That the structure does not meet the criteria for demolition set out in 6-185.
2) That the structure cannot be demolished within the time specified by the order.
3) That the structure can be reconstructed, repaired, or restored. If a petitioner is appealing based on this subsection, the petitioner must submit, with the written petition for appeal, the following documentation regarding the proposed reconstruction, repair, or restoration: a) list of proposed work to the structure; estimated cost; b) timetable for obtaining permits; and c) timetable for completion of the work. The City Council may stay a Demolition Order to give the petitioner time for such reconstruction, repair, or restoration.
It is the petitioner’s burden to provide competent, substantial evidence that one or more of the above criteria are applicable. Competent, substantial evidence is fact-based and reliable evidence. There was no documentation submitted to repair the structure.