§ 160A‑439. Ordinanceauthorized as to repair, closing, and demolition of nonresidential buildings orstructures; order of public officer.
(a) Authority. Thegoverning body of the city may adopt and enforce ordinances relating tononresidential buildings or structures that fail to meet minimum standards ofmaintenance, sanitation, and safety established by the governing body. Theminimum standards shall address only conditions that are dangerous andinjurious to public health, safety, and welfare and identify circumstancesunder which a public necessity exists for the repair, closing, or demolition ofsuch buildings or structures. The ordinance shall provide for designation orappointment of a public officer to exercise the powers prescribed by the ordinance,in accordance with the procedures specified in this section. Such ordinanceshall only be applicable within the corporate limits of the city.
(b) Investigation. Wheneverit appears to the public officer that any nonresidential building or structure hasnot been properly maintained so that the safety or health of its occupants ormembers of the general public are jeopardized for failure of the property tomeet the minimum standards established by the governing body, the publicofficer shall undertake a preliminary investigation. If entry upon the premisesfor purposes of investigation is necessary, such entry shall be made pursuantto a duly issued administrative search warrant in accordance with G.S. 15‑27.2or with permission of the owner, the owner's agent, a tenant, or other personlegally in possession of the premises.
(c) Complaint andHearing. If the preliminary investigation discloses evidence of a violationof the minimum standards, the public officer shall issue and cause to be servedupon the owner of and parties in interest in the nonresidential building orstructure a complaint. The complaint shall state the charges and contain anotice that a hearing will be held before the public officer (or his or herdesignated agent) at a place within the county scheduled not less than 10 daysnor more than 30 days after the serving of the complaint; that the owner andparties in interest shall be given the right to answer the complaint and toappear in person, or otherwise, and give testimony at the place and time fixedin the complaint; and that the rules of evidence prevailing in courts of law orequity shall not be controlling in hearings before the public officer.
(d) Order. If, afternotice and hearing, the public officer determines that the nonresidentialbuilding or structure has not been properly maintained so that the safety orhealth of its occupants or members of the general public is jeopardized forfailure of the property to meet the minimum standards established by thegoverning body, the public officer shall state in writing findings of fact insupport of that determination and shall issue and cause to be served upon theowner thereof an order. The order may require the owner to take remedialaction, within a reasonable time specified, subject to the procedures andlimitations herein.
(e) Limitations onOrders.
(1) An order may requirethe owner to repair, alter, or improve the nonresidential building or structurein order to bring it into compliance with the minimum standards established bythe governing body or to vacate and close the nonresidential building orstructure for any use.
(2) An order may requirethe owner to remove or demolish the nonresidential building or structure if thecost of repair, alteration, or improvement of the building or structure wouldexceed fifty percent (50%) of its then current value. Notwithstanding any otherprovision of law, if the nonresidential building or structure is designated asa local historic landmark, listed in the National Register of Historic Places,or located in a locally designated historic district or in a historic districtlisted in the National Register of Historic Places and the governing bodydetermines, after a public hearing as provided by ordinance, that thenonresidential building or structure is of individual significance orcontributes to maintaining the character of the district, and thenonresidential building or structure has not been condemned as unsafe, theorder may require that the nonresidential building or structure be vacated andclosed until it is brought into compliance with the minimum standardsestablished by the governing body.
(3) An order may notrequire repairs, alterations, or improvements to be made to vacantmanufacturing facilities or vacant industrial warehouse facilities to preservethe original use. The order may require such building or structure to bevacated and closed, but repairs may be required only when necessary to maintainstructural integrity or to abate a health or safety hazard that cannot be remediedby ordering the building or structure closed for any use.
(f) Action byGoverning Body Upon Failure to Comply With Order.
(1) If the owner failsto comply with an order to repair, alter, or improve or to vacate and close thenonresidential building or structure, the governing body may adopt an ordinanceordering the public officer to proceed to effectuate the purpose of thissection with respect to the particular property or properties that the publicofficer found to be jeopardizing the health or safety of its occupants ormembers of the general public. The property or properties shall be described inthe ordinance. The ordinance shall be recorded in the office of the register ofdeeds and shall be indexed in the name of the property owner or owners in thegrantor index. Following adoption of an ordinance, the public officer may causethe building or structure to be repaired, altered, or improved or to be vacatedand closed. The public officer may cause to be posted on the main entrance ofany nonresidential building or structure so closed a placard with the followingwords: "This building is unfit for any use; the use or occupation of thisbuilding for any purpose is prohibited and unlawful." Any person whooccupies or knowingly allows the occupancy of a building or structure so postedshall be guilty of a Class 3 misdemeanor.
(2) If the owner failsto comply with an order to remove or demolish the nonresidential building orstructure, the governing body may adopt an ordinance ordering the public officerto proceed to effectuate the purpose of this section with respect to theparticular property or properties that the public officer found to bejeopardizing the health or safety of its occupants or members of the generalpublic. No ordinance shall be adopted to require demolition of a nonresidentialbuilding or structure until the owner has first been given a reasonableopportunity to bring it into conformity with the minimum standards establishedby the governing body. The property or properties shall be described in theordinance. The ordinance shall be recorded in the office of the register ofdeeds and shall be indexed in the name of the property owner or owners in thegrantor index. Following adoption of an ordinance, the public officer may causethe building or structure to be removed or demolished.
(g) Action by GoverningBody Upon Abandonment of Intent to Repair. If the governing body has adoptedan ordinance or the public officer has issued an order requiring the buildingor structure to be repaired or vacated and closed and the building or structurehas been vacated and closed for a period of two years pursuant to the ordinanceor order, the governing body may make findings that the owner has abandoned theintent and purpose to repair, alter, or improve the building or structure andthat the continuation of the building or structure in its vacated and closedstatus would be inimical to the health, safety, and welfare of the municipalityin that it would continue to deteriorate, would create a fire or safety hazard,would be a threat to children and vagrants, would attract persons intent oncriminal activities, or would cause or contribute to blight and thedeterioration of property values in the area. Upon such findings, the governingbody may, after the expiration of the two‑year period, enact an ordinanceand serve such ordinance on the owner, setting forth the following:
(1) If the cost torepair the nonresidential building or structure to bring it into compliancewith the minimum standards is less than or equal to fifty percent (50%) of itsthen current value, the ordinance shall require that the owner either repair ordemolish and remove the building or structure within 90 days; or
(2) If the cost torepair the nonresidential building or structure to bring it into compliancewith the minimum standards exceeds fifty percent (50%) of its then currentvalue, the ordinance shall require the owner to demolish and remove thebuilding or structure within 90 days.
In the case of vacantmanufacturing facilities or vacant industrial warehouse facilities, thebuilding or structure must have been vacated and closed pursuant to an order orordinance for a period of five years before the governing body may take actionunder this subsection. The ordinance shall be recorded in the office of theregister of deeds in the county wherein the property or properties are locatedand shall be indexed in the name of the property owner in the grantor index. Ifthe owner fails to comply with the ordinance, the public officer shalleffectuate the purpose of the ordinance.
(h) Service ofComplaints and Orders. Complaints or orders issued by a public officerpursuant to an ordinance adopted under this section shall be served uponpersons either personally or by registered or certified mail so long as themeans used are reasonably designed to achieve actual notice. When service ismade by registered or certified mail, a copy of the complaint or order may alsobe sent by regular mail. Service shall be deemed sufficient if the registeredor certified mail is refused, but the regular mail is not returned by the postoffice within 10 days after the mailing. If regular mail is used, a notice ofthe pending proceedings shall be posted in a conspicuous place on the premisesaffected. If the identities of any owners or the whereabouts of persons areunknown and cannot be ascertained by the public officer in the exercise ofreasonable diligence, and the public officer makes an affidavit to that effect,the serving of the complaint or order upon the owners or other persons may bemade by publication in a newspaper having general circulation in the city atleast once no later than the time that personal service would be required underthis section. When service is made by publication, a notice of the pendingproceedings shall be posted in a conspicuous place on the premises affected.
(i) Liens.
(1) The amount of thecost of repairs, alterations, or improvements, or vacating and closing, orremoval or demolition by the public officer shall be a lien against the realproperty upon which the cost was incurred, which lien shall be filed, have thesame priority, and be collected as the lien for special assessment provided inArticle 10 of Chapter 160A of the General Statutes.
(2) If the real propertyupon which the cost was incurred is located in an incorporated city, the amountof the costs is also a lien on any other real property of the owner locatedwithin the city limits except for the owner's primary residence. The additionallien provided in this subdivision is inferior to all prior liens and shall becollected as a money judgment.
(3) If thenonresidential building or structure is removed or demolished by the publicofficer, he or she shall offer for sale the recoverable materials of the buildingor structure and any personal property, fixtures, or appurtenances found in orattached to the building or structure and shall credit the proceeds of thesale, if any, against the cost of the removal or demolition, and any balanceremaining shall be deposited in the superior court by the public officer, shallbe secured in a manner directed by the court, and shall be disbursed by thecourt to the persons found to be entitled thereto by final order or decree ofthe court. Nothing in this section shall be construed to impair or limit in anyway the power of the governing body to define and declare nuisances and tocause their removal or abatement by summary proceedings or otherwise.
(j) Ejectment. Ifany occupant fails to comply with an order to vacate a nonresidential buildingor structure, the public officer may file a civil action in the name of thecity to remove the occupant. The action to vacate shall be in the nature ofsummary ejectment and shall be commenced by filing a complaint naming as parties‑defendantany person occupying the nonresidential building or structure. The clerk ofsuperior court shall issue a summons requiring the defendant to appear before amagistrate at a certain time, date, and place not to exceed 10 days from theissuance of the summons to answer the complaint. The summons and complaintshall be served as provided in G.S. 42‑29. The summons shall be returnedaccording to its tenor, and if on its return it appears to have been dulyserved and if at the hearing the public officer produces a certified copy of anordinance adopted by the governing body pursuant to subsection (f) of thissection to vacate the occupied nonresidential building or structure, themagistrate shall enter judgment ordering that the premises be vacated and allpersons be removed. The judgment ordering that the nonresidential building orstructure be vacated shall be enforced in the same manner as the judgment forsummary ejectment entered under G.S. 42‑30. An appeal from any judgmententered under this subsection by the magistrate may be taken as provided inG.S. 7A‑228, and the execution of the judgment may be stayed as providedin G.S. 7A‑227. An action to remove an occupant of a nonresidentialbuilding or structure who is a tenant of the owner may not be in the nature ofa summary ejectment proceeding pursuant to this subsection unless the occupantwas served with notice, at least 30 days before the filing of the summaryejectment proceeding, that the governing body has ordered the public officer toproceed to exercise his duties under subsection (f) of this section to vacateand close or remove and demolish the nonresidential building or structure.
(k) Civil Penalty. Thegoverning body may impose civil penalties against any person or entity that failsto comply with an order entered pursuant to this section. However, theimposition of civil penalties shall not limit the use of any other lawfulremedies available to the governing body for the enforcement of any ordinancesadopted pursuant to this section.
(l) PowersSupplemental. The powers conferred by this section are supplemental to thepowers conferred by any other law. An ordinance adopted by the governing bodymay authorize the public officer to exercise any powers necessary or convenientto carry out and effectuate the purpose and provisions of this section,including the following powers in addition to others herein granted:
(1) To investigatenonresidential buildings and structures in the city to determine whether theyhave been properly maintained in compliance with the minimum standards so thatthe safety or health of the occupants or members of the general public are notjeopardized.
(2) To administer oaths,affirmations, examine witnesses, and receive evidence.
(3) To enter uponpremises pursuant to subsection (b) of this section for the purpose of makingexaminations in a manner that will do the least possible inconvenience to thepersons in possession.
(4) To appoint and fixthe duties of officers, agents, and employees necessary to carry out thepurposes of the ordinances adopted by the governing body.
(5) To delegate any ofhis or her functions and powers under the ordinance to other officers andagents.
(m) Appeals. Thegoverning body may provide that appeals may be taken from any decision or orderof the public officer to the city's housing appeals board or zoning board ofadjustment. Any person aggrieved by a decision or order of the public officershall have the remedies provided in G.S. 160A‑446.
(n) Funding. Thegoverning body is authorized to make appropriations from its revenues necessaryto carry out the purposes of this section and may accept and apply grants ordonations to assist in carrying out the provisions of the ordinances adopted bythe governing body.
(o) No Effect on JustCompensation for Taking by Eminent Domain. Nothing in this section shall beconstrued as preventing the owner or owners of any property from receiving justcompensation for the taking of property by the power of eminent domain underthe laws of this State, nor as permitting any property to be condemned ordestroyed except in accordance with the police power of the State.
(p) Definitions.
(1) "Parties ininterest" means all individuals, associations, and corporations who haveinterests of record in a nonresidential building or structure and any who arein possession thereof.
(2) "Vacantindustrial warehouse" means any building or structure designed for thestorage of goods or equipment in connection with manufacturing processes, whichhas not been used for that purpose for at least one year and has not beenconverted to another use.
(3) "Vacantmanufacturing facility" means any building or structure previously usedfor the lawful production or manufacturing of goods, which has not been usedfor that purpose for at least one year and has not been converted to anotheruse. (2007‑414,s. 1.)
§ 160A‑439. Ordinanceauthorized as to repair, closing, and demolition of nonresidential buildings orstructures; order of public officer.
(a) Authority. Thegoverning body of the city may adopt and enforce ordinances relating tononresidential buildings or structures that fail to meet minimum standards ofmaintenance, sanitation, and safety established by the governing body. Theminimum standards shall address only conditions that are dangerous andinjurious to public health, safety, and welfare and identify circumstancesunder which a public necessity exists for the repair, closing, or demolition ofsuch buildings or structures. The ordinance shall provide for designation orappointment of a public officer to exercise the powers prescribed by the ordinance,in accordance with the procedures specified in this section. Such ordinanceshall only be applicable within the corporate limits of the city.
(b) Investigation. Wheneverit appears to the public officer that any nonresidential building or structure hasnot been properly maintained so that the safety or health of its occupants ormembers of the general public are jeopardized for failure of the property tomeet the minimum standards established by the governing body, the publicofficer shall undertake a preliminary investigation. If entry upon the premisesfor purposes of investigation is necessary, such entry shall be made pursuantto a duly issued administrative search warrant in accordance with G.S. 15‑27.2or with permission of the owner, the owner's agent, a tenant, or other personlegally in possession of the premises.
(c) Complaint andHearing. If the preliminary investigation discloses evidence of a violationof the minimum standards, the public officer shall issue and cause to be servedupon the owner of and parties in interest in the nonresidential building orstructure a complaint. The complaint shall state the charges and contain anotice that a hearing will be held before the public officer (or his or herdesignated agent) at a place within the county scheduled not less than 10 daysnor more than 30 days after the serving of the complaint; that the owner andparties in interest shall be given the right to answer the complaint and toappear in person, or otherwise, and give testimony at the place and time fixedin the complaint; and that the rules of evidence prevailing in courts of law orequity shall not be controlling in hearings before the public officer.
(d) Order. If, afternotice and hearing, the public officer determines that the nonresidentialbuilding or structure has not been properly maintained so that the safety orhealth of its occupants or members of the general public is jeopardized forfailure of the property to meet the minimum standards established by thegoverning body, the public officer shall state in writing findings of fact insupport of that determination and shall issue and cause to be served upon theowner thereof an order. The order may require the owner to take remedialaction, within a reasonable time specified, subject to the procedures andlimitations herein.
(e) Limitations onOrders.
(1) An order may requirethe owner to repair, alter, or improve the nonresidential building or structurein order to bring it into compliance with the minimum standards established bythe governing body or to vacate and close the nonresidential building orstructure for any use.
(2) An order may requirethe owner to remove or demolish the nonresidential building or structure if thecost of repair, alteration, or improvement of the building or structure wouldexceed fifty percent (50%) of its then current value. Notwithstanding any otherprovision of law, if the nonresidential building or structure is designated asa local historic landmark, listed in the National Register of Historic Places,or located in a locally designated historic district or in a historic districtlisted in the National Register of Historic Places and the governing bodydetermines, after a public hearing as provided by ordinance, that thenonresidential building or structure is of individual significance orcontributes to maintaining the character of the district, and thenonresidential building or structure has not been condemned as unsafe, theorder may require that the nonresidential building or structure be vacated andclosed until it is brought into compliance with the minimum standardsestablished by the governing body.
(3) An order may notrequire repairs, alterations, or improvements to be made to vacantmanufacturing facilities or vacant industrial warehouse facilities to preservethe original use. The order may require such building or structure to bevacated and closed, but repairs may be required only when necessary to maintainstructural integrity or to abate a health or safety hazard that cannot be remediedby ordering the building or structure closed for any use.
(f) Action byGoverning Body Upon Failure to Comply With Order.
(1) If the owner failsto comply with an order to repair, alter, or improve or to vacate and close thenonresidential building or structure, the governing body may adopt an ordinanceordering the public officer to proceed to effectuate the purpose of thissection with respect to the particular property or properties that the publicofficer found to be jeopardizing the health or safety of its occupants ormembers of the general public. The property or properties shall be described inthe ordinance. The ordinance shall be recorded in the office of the register ofdeeds and shall be indexed in the name of the property owner or owners in thegrantor index. Following adoption of an ordinance, the public officer may causethe building or structure to be repaired, altered, or improved or to be vacatedand closed. The public officer may cause to be posted on the main entrance ofany nonresidential building or structure so closed a placard with the followingwords: "This building is unfit for any use; the use or occupation of thisbuilding for any purpose is prohibited and unlawful." Any person whooccupies or knowingly allows the occupancy of a building or structure so postedshall be guilty of a Class 3 misdemeanor.
(2) If the owner failsto comply with an order to remove or demolish the nonresidential building orstructure, the governing body may adopt an ordinance ordering the public officerto proceed to effectuate the purpose of this section with respect to theparticular property or properties that the public officer found to bejeopardizing the health or safety of its occupants or members of the generalpublic. No ordinance shall be adopted to require demolition of a nonresidentialbuilding or structure until the owner has first been given a reasonableopportunity to bring it into conformity with the minimum standards establishedby the governing body. The property or properties shall be described in theordinance. The ordinance shall be recorded in the office of the register ofdeeds and shall be indexed in the name of the property owner or owners in thegrantor index. Following adoption of an ordinance, the public officer may causethe building or structure to be removed or demolished.
(g) Action by GoverningBody Upon Abandonment of Intent to Repair. If the governing body has adoptedan ordinance or the public officer has issued an order requiring the buildingor structure to be repaired or vacated and closed and the building or structurehas been vacated and closed for a period of two years pursuant to the ordinanceor order, the governing body may make findings that the owner has abandoned theintent and purpose to repair, alter, or improve the building or structure andthat the continuation of the building or structure in its vacated and closedstatus would be inimical to the health, safety, and welfare of the municipalityin that it would continue to deteriorate, would create a fire or safety hazard,would be a threat to children and vagrants, would attract persons intent oncriminal activities, or would cause or contribute to blight and thedeterioration of property values in the area. Upon such findings, the governingbody may, after the expiration of the two‑year period, enact an ordinanceand serve such ordinance on the owner, setting forth the following:
(1) If the cost torepair the nonresidential building or structure to bring it into compliancewith the minimum standards is less than or equal to fifty percent (50%) of itsthen current value, the ordinance shall require that the owner either repair ordemolish and remove the building or structure within 90 days; or
(2) If the cost torepair the nonresidential building or structure to bring it into compliancewith the minimum standards exceeds fifty percent (50%) of its then currentvalue, the ordinance shall require the owner to demolish and remove thebuilding or structure within 90 days.
In the case of vacantmanufacturing facilities or vacant industrial warehouse facilities, thebuilding or structure must have been vacated and closed pursuant to an order orordinance for a period of five years before the governing body may take actionunder this subsection. The ordinance shall be recorded in the office of theregister of deeds in the county wherein the property or properties are locatedand shall be indexed in the name of the property owner in the grantor index. Ifthe owner fails to comply with the ordinance, the public officer shalleffectuate the purpose of the ordinance.
(h) Service ofComplaints and Orders. Complaints or orders issued by a public officerpursuant to an ordinance adopted under this section shall be served uponpersons either personally or by registered or certified mail so long as themeans used are reasonably designed to achieve actual notice. When service ismade by registered or certified mail, a copy of the complaint or order may alsobe sent by regular mail. Service shall be deemed sufficient if the registeredor certified mail is refused, but the regular mail is not returned by the postoffice within 10 days after the mailing. If regular mail is used, a notice ofthe pending proceedings shall be posted in a conspicuous place on the premisesaffected. If the identities of any owners or the whereabouts of persons areunknown and cannot be ascertained by the public officer in the exercise ofreasonable diligence, and the public officer makes an affidavit to that effect,the serving of the complaint or order upon the owners or other persons may bemade by publication in a newspaper having general circulation in the city atleast once no later than the time that personal service would be required underthis section. When service is made by publication, a notice of the pendingproceedings shall be posted in a conspicuous place on the premises affected.
(i) Liens.
(1) The amount of thecost of repairs, alterations, or improvements, or vacating and closing, orremoval or demolition by the public officer shall be a lien against the realproperty upon which the cost was incurred, which lien shall be filed, have thesame priority, and be collected as the lien for special assessment provided inArticle 10 of Chapter 160A of the General Statutes.
(2) If the real propertyupon which the cost was incurred is located in an incorporated city, the amountof the costs is also a lien on any other real property of the owner locatedwithin the city limits except for the owner's primary residence. The additionallien provided in this subdivision is inferior to all prior liens and shall becollected as a money judgment.
(3) If thenonresidential building or structure is removed or demolished by the publicofficer, he or she shall offer for sale the recoverable materials of the buildingor structure and any personal property, fixtures, or appurtenances found in orattached to the building or structure and shall credit the proceeds of thesale, if any, against the cost of the removal or demolition, and any balanceremaining shall be deposited in the superior court by the public officer, shallbe secured in a manner directed by the court, and shall be disbursed by thecourt to the persons found to be entitled thereto by final order or decree ofthe court. Nothing in this section shall be construed to impair or limit in anyway the power of the governing body to define and declare nuisances and tocause their removal or abatement by summary proceedings or otherwise.
(j) Ejectment. Ifany occupant fails to comply with an order to vacate a nonresidential buildingor structure, the public officer may file a civil action in the name of thecity to remove the occupant. The action to vacate shall be in the nature ofsummary ejectment and shall be commenced by filing a complaint naming as parties‑defendantany person occupying the nonresidential building or structure. The clerk ofsuperior court shall issue a summons requiring the defendant to appear before amagistrate at a certain time, date, and place not to exceed 10 days from theissuance of the summons to answer the complaint. The summons and complaintshall be served as provided in G.S. 42‑29. The summons shall be returnedaccording to its tenor, and if on its return it appears to have been dulyserved and if at the hearing the public officer produces a certified copy of anordinance adopted by the governing body pursuant to subsection (f) of thissection to vacate the occupied nonresidential building or structure, themagistrate shall enter judgment ordering that the premises be vacated and allpersons be removed. The judgment ordering that the nonresidential building orstructure be vacated shall be enforced in the same manner as the judgment forsummary ejectment entered under G.S. 42‑30. An appeal from any judgmententered under this subsection by the magistrate may be taken as provided inG.S. 7A‑228, and the execution of the judgment may be stayed as providedin G.S. 7A‑227. An action to remove an occupant of a nonresidentialbuilding or structure who is a tenant of the owner may not be in the nature ofa summary ejectment proceeding pursuant to this subsection unless the occupantwas served with notice, at least 30 days before the filing of the summaryejectment proceeding, that the governing body has ordered the public officer toproceed to exercise his duties under subsection (f) of this section to vacateand close or remove and demolish the nonresidential building or structure.
(k) Civil Penalty. Thegoverning body may impose civil penalties against any person or entity that failsto comply with an order entered pursuant to this section. However, theimposition of civil penalties shall not limit the use of any other lawfulremedies available to the governing body for the enforcement of any ordinancesadopted pursuant to this section.
(l) PowersSupplemental. The powers conferred by this section are supplemental to thepowers conferred by any other law. An ordinance adopted by the governing bodymay authorize the public officer to exercise any powers necessary or convenientto carry out and effectuate the purpose and provisions of this section,including the following powers in addition to others herein granted:
(1) To investigatenonresidential buildings and structures in the city to determine whether theyhave been properly maintained in compliance with the minimum standards so thatthe safety or health of the occupants or members of the general public are notjeopardized.
(2) To administer oaths,affirmations, examine witnesses, and receive evidence.
(3) To enter uponpremises pursuant to subsection (b) of this section for the purpose of makingexaminations in a manner that will do the least possible inconvenience to thepersons in possession.
(4) To appoint and fixthe duties of officers, agents, and employees necessary to carry out thepurposes of the ordinances adopted by the governing body.
(5) To delegate any ofhis or her functions and powers under the ordinance to other officers andagents.
(m) Appeals. Thegoverning body may provide that appeals may be taken from any decision or orderof the public officer to the city's housing appeals board or zoning board ofadjustment. Any person aggrieved by a decision or order of the public officershall have the remedies provided in G.S. 160A‑446.
(n) Funding. Thegoverning body is authorized to make appropriations from its revenues necessaryto carry out the purposes of this section and may accept and apply grants ordonations to assist in carrying out the provisions of the ordinances adopted bythe governing body.
(o) No Effect on JustCompensation for Taking by Eminent Domain. Nothing in this section shall beconstrued as preventing the owner or owners of any property from receiving justcompensation for the taking of property by the power of eminent domain underthe laws of this State, nor as permitting any property to be condemned ordestroyed except in accordance with the police power of the State.
(p) Definitions.
(1) "Parties ininterest" means all individuals, associations, and corporations who haveinterests of record in a nonresidential building or structure and any who arein possession thereof.
(2) "Vacantindustrial warehouse" means any building or structure designed for thestorage of goods or equipment in connection with manufacturing processes, whichhas not been used for that purpose for at least one year and has not beenconverted to another use.
(3) "Vacantmanufacturing facility" means any building or structure previously usedfor the lawful production or manufacturing of goods, which has not been usedfor that purpose for at least one year and has not been converted to anotheruse. (2007‑414,s. 1.)
§ 160A‑439. Ordinanceauthorized as to repair, closing, and demolition of nonresidential buildings orstructures; order of public officer.
(a) Authority. Thegoverning body of the city may adopt and enforce ordinances relating tononresidential buildings or structures that fail to meet minimum standards ofmaintenance, sanitation, and safety established by the governing body. Theminimum standards shall address only conditions that are dangerous andinjurious to public health, safety, and welfare and identify circumstancesunder which a public necessity exists for the repair, closing, or demolition ofsuch buildings or structures. The ordinance shall provide for designation orappointment of a public officer to exercise the powers prescribed by the ordinance,in accordance with the procedures specified in this section. Such ordinanceshall only be applicable within the corporate limits of the city.
(b) Investigation. Wheneverit appears to the public officer that any nonresidential building or structure hasnot been properly maintained so that the safety or health of its occupants ormembers of the general public are jeopardized for failure of the property tomeet the minimum standards established by the governing body, the publicofficer shall undertake a preliminary investigation. If entry upon the premisesfor purposes of investigation is necessary, such entry shall be made pursuantto a duly issued administrative search warrant in accordance with G.S. 15‑27.2or with permission of the owner, the owner's agent, a tenant, or other personlegally in possession of the premises.
(c) Complaint andHearing. If the preliminary investigation discloses evidence of a violationof the minimum standards, the public officer shall issue and cause to be servedupon the owner of and parties in interest in the nonresidential building orstructure a complaint. The complaint shall state the charges and contain anotice that a hearing will be held before the public officer (or his or herdesignated agent) at a place within the county scheduled not less than 10 daysnor more than 30 days after the serving of the complaint; that the owner andparties in interest shall be given the right to answer the complaint and toappear in person, or otherwise, and give testimony at the place and time fixedin the complaint; and that the rules of evidence prevailing in courts of law orequity shall not be controlling in hearings before the public officer.
(d) Order. If, afternotice and hearing, the public officer determines that the nonresidentialbuilding or structure has not been properly maintained so that the safety orhealth of its occupants or members of the general public is jeopardized forfailure of the property to meet the minimum standards established by thegoverning body, the public officer shall state in writing findings of fact insupport of that determination and shall issue and cause to be served upon theowner thereof an order. The order may require the owner to take remedialaction, within a reasonable time specified, subject to the procedures andlimitations herein.
(e) Limitations onOrders.
(1) An order may requirethe owner to repair, alter, or improve the nonresidential building or structurein order to bring it into compliance with the minimum standards established bythe governing body or to vacate and close the nonresidential building orstructure for any use.
(2) An order may requirethe owner to remove or demolish the nonresidential building or structure if thecost of repair, alteration, or improvement of the building or structure wouldexceed fifty percent (50%) of its then current value. Notwithstanding any otherprovision of law, if the nonresidential building or structure is designated asa local historic landmark, listed in the National Register of Historic Places,or located in a locally designated historic district or in a historic districtlisted in the National Register of Historic Places and the governing bodydetermines, after a public hearing as provided by ordinance, that thenonresidential building or structure is of individual significance orcontributes to maintaining the character of the district, and thenonresidential building or structure has not been condemned as unsafe, theorder may require that the nonresidential building or structure be vacated andclosed until it is brought into compliance with the minimum standardsestablished by the governing body.
(3) An order may notrequire repairs, alterations, or improvements to be made to vacantmanufacturing facilities or vacant industrial warehouse facilities to preservethe original use. The order may require such building or structure to bevacated and closed, but repairs may be required only when necessary to maintainstructural integrity or to abate a health or safety hazard that cannot be remediedby ordering the building or structure closed for any use.
(f) Action byGoverning Body Upon Failure to Comply With Order.
(1) If the owner failsto comply with an order to repair, alter, or improve or to vacate and close thenonresidential building or structure, the governing body may adopt an ordinanceordering the public officer to proceed to effectuate the purpose of thissection with respect to the particular property or properties that the publicofficer found to be jeopardizing the health or safety of its occupants ormembers of the general public. The property or properties shall be described inthe ordinance. The ordinance shall be recorded in the office of the register ofdeeds and shall be indexed in the name of the property owner or owners in thegrantor index. Following adoption of an ordinance, the public officer may causethe building or structure to be repaired, altered, or improved or to be vacatedand closed. The public officer may cause to be posted on the main entrance ofany nonresidential building or structure so closed a placard with the followingwords: "This building is unfit for any use; the use or occupation of thisbuilding for any purpose is prohibited and unlawful." Any person whooccupies or knowingly allows the occupancy of a building or structure so postedshall be guilty of a Class 3 misdemeanor.
(2) If the owner failsto comply with an order to remove or demolish the nonresidential building orstructure, the governing body may adopt an ordinance ordering the public officerto proceed to effectuate the purpose of this section with respect to theparticular property or properties that the public officer found to bejeopardizing the health or safety of its occupants or members of the generalpublic. No ordinance shall be adopted to require demolition of a nonresidentialbuilding or structure until the owner has first been given a reasonableopportunity to bring it into conformity with the minimum standards establishedby the governing body. The property or properties shall be described in theordinance. The ordinance shall be recorded in the office of the register ofdeeds and shall be indexed in the name of the property owner or owners in thegrantor index. Following adoption of an ordinance, the public officer may causethe building or structure to be removed or demolished.
(g) Action by GoverningBody Upon Abandonment of Intent to Repair. If the governing body has adoptedan ordinance or the public officer has issued an order requiring the buildingor structure to be repaired or vacated and closed and the building or structurehas been vacated and closed for a period of two years pursuant to the ordinanceor order, the governing body may make findings that the owner has abandoned theintent and purpose to repair, alter, or improve the building or structure andthat the continuation of the building or structure in its vacated and closedstatus would be inimical to the health, safety, and welfare of the municipalityin that it would continue to deteriorate, would create a fire or safety hazard,would be a threat to children and vagrants, would attract persons intent oncriminal activities, or would cause or contribute to blight and thedeterioration of property values in the area. Upon such findings, the governingbody may, after the expiration of the two‑year period, enact an ordinanceand serve such ordinance on the owner, setting forth the following:
(1) If the cost torepair the nonresidential building or structure to bring it into compliancewith the minimum standards is less than or equal to fifty percent (50%) of itsthen current value, the ordinance shall require that the owner either repair ordemolish and remove the building or structure within 90 days; or
(2) If the cost torepair the nonresidential building or structure to bring it into compliancewith the minimum standards exceeds fifty percent (50%) of its then currentvalue, the ordinance shall require the owner to demolish and remove thebuilding or structure within 90 days.
In the case of vacantmanufacturing facilities or vacant industrial warehouse facilities, thebuilding or structure must have been vacated and closed pursuant to an order orordinance for a period of five years before the governing body may take actionunder this subsection. The ordinance shall be recorded in the office of theregister of deeds in the county wherein the property or properties are locatedand shall be indexed in the name of the property owner in the grantor index. Ifthe owner fails to comply with the ordinance, the public officer shalleffectuate the purpose of the ordinance.
(h) Service ofComplaints and Orders. Complaints or orders issued by a public officerpursuant to an ordinance adopted under this section shall be served uponpersons either personally or by registered or certified mail so long as themeans used are reasonably designed to achieve actual notice. When service ismade by registered or certified mail, a copy of the complaint or order may alsobe sent by regular mail. Service shall be deemed sufficient if the registeredor certified mail is refused, but the regular mail is not returned by the postoffice within 10 days after the mailing. If regular mail is used, a notice ofthe pending proceedings shall be posted in a conspicuous place on the premisesaffected. If the identities of any owners or the whereabouts of persons areunknown and cannot be ascertained by the public officer in the exercise ofreasonable diligence, and the public officer makes an affidavit to that effect,the serving of the complaint or order upon the owners or other persons may bemade by publication in a newspaper having general circulation in the city atleast once no later than the time that personal service would be required underthis section. When service is made by publication, a notice of the pendingproceedings shall be posted in a conspicuous place on the premises affected.
(i) Liens.
(1) The amount of thecost of repairs, alterations, or improvements, or vacating and closing, orremoval or demolition by the public officer shall be a lien against the realproperty upon which the cost was incurred, which lien shall be filed, have thesame priority, and be collected as the lien for special assessment provided inArticle 10 of Chapter 160A of the General Statutes.
(2) If the real propertyupon which the cost was incurred is located in an incorporated city, the amountof the costs is also a lien on any other real property of the owner locatedwithin the city limits except for the owner's primary residence. The additionallien provided in this subdivision is inferior to all prior liens and shall becollected as a money judgment.
(3) If thenonresidential building or structure is removed or demolished by the publicofficer, he or she shall offer for sale the recoverable materials of the buildingor structure and any personal property, fixtures, or appurtenances found in orattached to the building or structure and shall credit the proceeds of thesale, if any, against the cost of the removal or demolition, and any balanceremaining shall be deposited in the superior court by the public officer, shallbe secured in a manner directed by the court, and shall be disbursed by thecourt to the persons found to be entitled thereto by final order or decree ofthe court. Nothing in this section shall be construed to impair or limit in anyway the power of the governing body to define and declare nuisances and tocause their removal or abatement by summary proceedings or otherwise.
(j) Ejectment. Ifany occupant fails to comply with an order to vacate a nonresidential buildingor structure, the public officer may file a civil action in the name of thecity to remove the occupant. The action to vacate shall be in the nature ofsummary ejectment and shall be commenced by filing a complaint naming as parties‑defendantany person occupying the nonresidential building or structure. The clerk ofsuperior court shall issue a summons requiring the defendant to appear before amagistrate at a certain time, date, and place not to exceed 10 days from theissuance of the summons to answer the complaint. The summons and complaintshall be served as provided in G.S. 42‑29. The summons shall be returnedaccording to its tenor, and if on its return it appears to have been dulyserved and if at the hearing the public officer produces a certified copy of anordinance adopted by the governing body pursuant to subsection (f) of thissection to vacate the occupied nonresidential building or structure, themagistrate shall enter judgment ordering that the premises be vacated and allpersons be removed. The judgment ordering that the nonresidential building orstructure be vacated shall be enforced in the same manner as the judgment forsummary ejectment entered under G.S. 42‑30. An appeal from any judgmententered under this subsection by the magistrate may be taken as provided inG.S. 7A‑228, and the execution of the judgment may be stayed as providedin G.S. 7A‑227. An action to remove an occupant of a nonresidentialbuilding or structure who is a tenant of the owner may not be in the nature ofa summary ejectment proceeding pursuant to this subsection unless the occupantwas served with notice, at least 30 days before the filing of the summaryejectment proceeding, that the governing body has ordered the public officer toproceed to exercise his duties under subsection (f) of this section to vacateand close or remove and demolish the nonresidential building or structure.
(k) Civil Penalty. Thegoverning body may impose civil penalties against any person or entity that failsto comply with an order entered pursuant to this section. However, theimposition of civil penalties shall not limit the use of any other lawfulremedies available to the governing body for the enforcement of any ordinancesadopted pursuant to this section.
(l) PowersSupplemental. The powers conferred by this section are supplemental to thepowers conferred by any other law. An ordinance adopted by the governing bodymay authorize the public officer to exercise any powers necessary or convenientto carry out and effectuate the purpose and provisions of this section,including the following powers in addition to others herein granted:
(1) To investigatenonresidential buildings and structures in the city to determine whether theyhave been properly maintained in compliance with the minimum standards so thatthe safety or health of the occupants or members of the general public are notjeopardized.
(2) To administer oaths,affirmations, examine witnesses, and receive evidence.
(3) To enter uponpremises pursuant to subsection (b) of this section for the purpose of makingexaminations in a manner that will do the least possible inconvenience to thepersons in possession.
(4) To appoint and fixthe duties of officers, agents, and employees necessary to carry out thepurposes of the ordinances adopted by the governing body.
(5) To delegate any ofhis or her functions and powers under the ordinance to other officers andagents.
(m) Appeals. Thegoverning body may provide that appeals may be taken from any decision or orderof the public officer to the city's housing appeals board or zoning board ofadjustment. Any person aggrieved by a decision or order of the public officershall have the remedies provided in G.S. 160A‑446.
(n) Funding. Thegoverning body is authorized to make appropriations from its revenues necessaryto carry out the purposes of this section and may accept and apply grants ordonations to assist in carrying out the provisions of the ordinances adopted bythe governing body.
(o) No Effect on JustCompensation for Taking by Eminent Domain. Nothing in this section shall beconstrued as preventing the owner or owners of any property from receiving justcompensation for the taking of property by the power of eminent domain underthe laws of this State, nor as permitting any property to be condemned ordestroyed except in accordance with the police power of the State.
(p) Definitions.
(1) "Parties ininterest" means all individuals, associations, and corporations who haveinterests of record in a nonresidential building or structure and any who arein possession thereof.
(2) "Vacantindustrial warehouse" means any building or structure designed for thestorage of goods or equipment in connection with manufacturing processes, whichhas not been used for that purpose for at least one year and has not beenconverted to another use.
(3) "Vacantmanufacturing facility" means any building or structure previously usedfor the lawful production or manufacturing of goods, which has not been usedfor that purpose for at least one year and has not been converted to anotheruse. (2007‑414,s. 1.)
