Thursday, March 20, 2014, 3:32 PM

Historic Districts and Certificates of Appropriateness: Raleigh's Latest Land Use Soap Opera

A compelling land use row is well underway right here in Raleigh.  It allows commentary over anything from aesthetics, to history and historical context, to equity and fairness, to neighborly (or unneighborly) behavior, to the public perception of legal processes.  We'll spend our time on the legal processes.

Basically, here's what you need to know.   Oakwood is self described as "a nineteenth century neighborhood and historic district located near downtown Raleigh, North Carolina. The neighborhood includes hundreds of homes in a variety of architectural styles."  

The Oakwood neighborhood is in a local historic district as defined by the City's Unified Development Ordinance, which means the neighborhood is and the properties therein are subject to the jurisdiction of the Raleigh Historic Development Commission (RHDC).  The RHDC is charged with issuing certificates of appropriateness for work done in Oakwood, decisions on which are appealable to the City’s Board of Adjustment. 

The Certificate 
Oakwood residents Louis Cherry, a local architect, and his wife applied for and were awarded a certificate of appropriateness to build their “modernist” home in Oakwood.  Yes, Mr. Cherry’s design is not Victorian but neither are the host of other styles making up the rich skyline of Historic Oakwood. 

The Appeal
The day after the certificate issued by the RHDC, a neighbor notified Mr. Cherry that she would appeal the issuance of the certificate of appropriateness.  Shortly thereafter, that neighbor and fellow Oakwood resident filed a timely appeal of the issuance.  “Timely” is key.

"We Build Build Build Build Build the Whole Day Through"
Despite the timely appeal by the dissenting neighbor, Mr. Cherry obtained a building permit and began construction of his “modernist” home.  Construction continued.  And it continued.  Then, the Board of Adjustment heard the appeal and ultimately reversed the RDHC’s decision to issue the certificate to Mr. Cherry.  

A simple timeline sums up succinctly the significant milestones:
September 2013: RHDC approves a Certificate of Appropriateness for a new home on 516 Euclid St.
October 2013: Resident and neighbor Gail Weisner files an appealLouis Cherry begins pulling the permits needed for construction, and begins construction.
January 2014: Board of Adjustment defers the case in order to have more time to review the evidence.
February 2014: Board of Adjustment votes 3 to 2 to reverse the decision by the RHDC.
March 2014: Board of Adjustment will legally certify its findings. Any construction on the house must stop.

It’s reported to be Mr.Cherry’s view that the City needs “to honor their permit not to protect us but to protect the integrity of their approval process”.  The Land Use Litigator understands that some visible local people have started a fund to provide for Mr. Cherry's defense or otherwise publicly expressed their support for the home and in criticism of the Board of Adjustment decision.  For its part, the City announced today that it will, itself, appeal the Board of adjustment’s decision so that an “objective third party” can look at the issue.  This saves Mr. Cherry and his wife from the time and expense.

It is unclear to us why Mr. Cherry built and built and built with knowledge of the pending appeal of his certificate, and it’s even less clear to us why Mr. Cherry thinks the City should now take the reigns from him against its own Board of Adjustment.  Again, Mr. Cherry:  “We thought the worst thing that could happen was it would be remanded back to the RHDC and they may have had to have some review of those proceedings….  And if it had to go back to the RHDC any errors would be corrected. We were encouraged to begin construction and told we didn't have to go to the appeal meeting and that we were being notified as a courtesy.” 

That's one notion.  The other is to call a land use lawyer when you see the opposition mounting before your certificate is even debated by the RHDC.

"An ounce of prevention is worth a pound of cure, Mr. Cherry."

Now, it's national news.  See the Washington Post's take here, which uses the phrase "Frank Lloyd Wrong".  You simply have to read it.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and "like" us on Facebook here.

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