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."
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.
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.
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"
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
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 appeal.
Louis 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
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."
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.