Memorandum

TO: Dr. Dan Morrill

Consulting Director

Charlotte-Mecklenburg Historic Landmarks Commission

FROM: S. Mujeeb Shah-Khan

Assistant City Attorney

DATE: October 16, 2007

RE: Demolition by Neglect

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Recently, we discussed the ability of a historic preservation commission (such as the Historic Landmarks Commission (“HLC”)) or a governing body to prevent demolition by neglect of designated landmarks and properties in the designation process. At your request, what follows is a summary of the ability to prevent demolition by neglect.

DESIGNATED PROPERTIES

General Statutes §160A-400.11 provides that:

In case any building, structure, site, area or object designated as a historic landmark or located within a historic district designated pursuant to this Part is about to be demolished whether as the result of deliberate neglect or otherwise, materially altered, remodeled, removed or destroyed, except in compliance with the ordinance or other provisions of this Part, the city or county, the historic preservation commission, or other party aggrieved by such action may institute any appropriate action or proceedings to prevent such unlawful demolition, destruction, material alteration, remodeling or removal, to restrain, correct or abate such violation, or to prevent any illegal act or conduct with respect to such building, structure, site, area or object.

As we discussed, my interpretation of 160A-400.11 is that it allows the HLC to take steps to protect against demolition by neglect. If the HLC wished to file suit to obtain an injunction preventing demolition by neglect of the structure, it would want to have some documentation supporting the allegation of demolition by neglect. As I pointed out, something along the lines of an expert report that would be able to tie the structure’s deterioration to alleged neglect would likely be sufficient to move forward. I do not believe that you would have to always show willful intent on the part of the property owner that the structure should fall into ruin; however that would help as the statute notes “deliberate neglect” as one of the possible preconditions for HLC action.

PROPERTIES RECOMMENDED FOR DESIGNATION

As you are aware, if the HLC has recommended a property for designation, Section 160A-400.14(a) allows the HLC to delay demolition or destruction of the structure for up to 180 days or whenever the governing board (in this case City Council) takes final designation on the designation, whichever occurs first. However, this does not include demolition by neglect, which is expressly named in the grant of authority provided by Section 160A-400.11. Accordingly, the HLC does not have the authority to prevent demolition by neglect in properties that are recommended for designation, but not yet designated.

DEMOLITION BY NEGLECT ORDINANCE

Section 160A-400.14(b) gives the City Council the right to enact an ordinance preventing demolition by neglect of any designated landmark or building or structure located within a historic district. Any ordinance enacted is required to have appropriate safeguards to protect property owners from undue economic hardship. If the HLC wishes to pursue this option, I would suggest that you begin by working with the Planning Department and the Historic District Commission on determining the process to be used in drafting a proposed ordinance.

If you have any questions, please do not hesitate to contact me at your convenience.

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