§ 9-41. Procedure for enforcement.

(a)

Preliminary investigation; notice; hearing. Whenever a petition is filed with the inspector by a public authority or by at least five (5) residents of the town charging that any dwelling or dwelling unit is unfit for human habitation, or whenever it appears to the inspector, upon inspection, that any dwelling or dwelling unit is unfit for human habitation, he shall, if his preliminary investigation discloses a basis for such charges, issue and cause to be served upon the owner of and parties in interest in such dwelling or dwelling unit a complaint stating the charges and containing a notice that a hearing will be held before the inspector at a place therein fixed, not less than ten (10) nor more than thirty (30) days after the serving of the complaint. The owner or any party in interest shall have the right to file an answer to the complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. Notice of such hearing shall also be given to at least one (1) of the persons signing a petition relating to such dwelling. Any person desiring to do so may attend such hearing and give evidence relevant to the matter being heard. The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the inspector.

(a1)

Lis pendens. Whenever the inspector issues a complaint and notice of hearing under subsection (a) of this section, the inspector shall file a notice of lis pendens, with a copy of the complaint and notice attached, in the office of the Clerk of Superior Court of Edgecombe County, all in accordance with G.S. Ch. 1, Art. 11.

(b)

Procedure after hearing. After such notice and hearing, the inspector shall state in writing his determination whether such dwelling or dwelling unit is unfit for human habitation and, if so, whether it is deteriorated or dilapidated.

(1)

If the inspector determines that the dwelling or dwelling unit is deteriorated, he shall state in writing his findings of fact in support of such determination and shall issue and cause to be served upon the owner thereof an order directing and requiring the owner, within sixty (60) days from the date of such order, either to (i) repair, alter or improve the dwelling or dwelling unit to comply with the minimum standards of fitness established by this article or (ii) vacate and close such dwelling or dwelling unit. The order may require that the property be vacated and closed only if continued occupancy during the time allowed for repair will present a significant threat of bodily harm, taking into account the nature of the necessary repairs, alternations, or improvements; the current state of the property; and any additional risks due to the presence and capacity of minors under the age of 18 or occupants with physical or mental disabilities. The order shall state that the failure to make timely repairs as directed in the order shall make the dwelling subject to the issuance of an unfit order under section 9-41(c) of this chapter.

(2)

If the inspector determines that the dwelling or dwelling unit is dilapidated, he shall state in writing his findings of fact in support of such determination and shall issue and cause to be served upon the owner thereof an order directing and requiring the owner, within sixty (60) days from the date of such order, either to (i) repair, alter or improve the dwelling or dwelling unit to comply with the minimum standards of fitness established by this article, or (ii) demolish or remove the dwelling or dwelling unit.

(c)

Failure to comply with order.

(1)

In personam remedy. If the owner of any deteriorated dwelling or dwelling unit fails to comply with an order of the inspector issued under subsection (b)(1) above, or the owner of a dilapidated dwelling or dwelling unit fails to comply with an order of the inspector issued under subsection (b)(2) above, the inspector may submit to the town council at its next regular meeting a resolution directing the town attorney to petition the superior court for an order directing such owner to comply with the order of the inspector, as authorized by G.S. 160A-446(g).

(2)

In rem remedy. If the owner of a deteriorated or dilapidated dwelling or dwelling unit fails to comply with an order of the inspector issued under subsection (b)(1) or (2) above, and the inspector has not sought or the council has not adopted a resolution directing the town attorney to seek injunctive relief as provided in subsection (c)(1) above, then the inspector shall submit to the council an ordinance directing the inspector to repair, vacate and close or to demolish the dwelling or dwelling unit in accordance with the provisions of this subsection.

a.

If, on the date the council considers such ordinance, the council concludes that the owner has still failed either to (i) repair, alter or improve the dwelling or dwelling unit to comply with the minimum standards of fitness established by this article, or vacate and close the dwelling or dwelling unit, or (ii) demolish or remove the dwelling or dwelling unit, the council may adopt an ordinance in accordance with the provisions of this subsection.

b.

The ordinance shall identify the property and the owner and shall direct the inspector to repair or vacate and close or to demolish or remove the dwelling or dwelling unit unless (i) the owner has, prior to the adoption of such ordinance, entered into an agreement with the town (as described in subsection (c)(2)c. below) staying enforcement of the provisions of this article, or enters such an agreement within ten days after the adoption of such ordinance. The ordinance shall further provide that the inspector shall enforce the repair, vacation and closure or demolition or removal order under the circumstances specified in subsection (c)(2)d. below.

c.

The town manager may, on behalf of the town, enter into an agreement staying the enforcement of the minimum housing code if he finds that: (i) the property owner subject to an enforcement proceeding under this article has obtained a building permit authorizing the work necessary to bring the dwelling or dwelling unit up to the minimum standards of fitness established by this article; (ii) the agreement includes an itemization of the work necessary to bring the dwelling or dwelling unit up to the minimum standards of fitness established by this article, as well as a timetable for the completion of each major element of the work and a completion date for all such work; (iii) the property owner has demonstrated to the reasonable satisfaction of the manager that such party has available the financial and other resources necessary to complete the work in accordance with such schedule; and (iv) the agreement is properly executed by the owner of the property that is subject to an enforcement proceeding under this article.

d.

If the inspector determines that a property owner who has entered into an agreement staying the enforcement of the minimum housing code has failed to complete at least twenty-five (25) percent of the total cost of the work described in the agreement within fifty (50) percent of the time established in the agreement for the completion of all the work, then the inspector shall so notify the property owner in writing and shall, not less than ten (10) days after the date of such notice, proceed to enforce the repair, vacate and close or demolition/removal order. If the inspector determines that the property owner has met the foregoing threshold of completion, then the repair, vacate and close or demolition/removal order shall not be enforced. However, upon expiration of the agreement, if the property owner has still not brought the dwelling or dwelling unit up to the minimum standards of fitness established by this article, then the inspector shall invoke the provisions of section 9-48 to obtain compliance with the requirements of this article, including the levying of daily civil penalties.

e.

A copy of any ordinance adopted under this section shall be recorded in the Office of the Register of Deeds of Edgecombe County and shall be indexed in the name of the property owner in the grantor index.

(d)

Appeals from order of inspector. An appeal from any decision or order of the inspector may be taken by any person aggrieved thereby. Any appeal from the inspector shall be taken within ten (10) days from the rendering of the decision or service of the order and shall be taken by filing with the inspector and with the zoning board of adjustment a notice of appeal which shall specify the grounds upon which the appeal is based. Upon the filing of any notice of appeal, the inspector shall forthwith transmit to the board all the papers constituting the record upon which the decision appealed from was made. When an appeal is from a decision of the inspector refusing to allow the person aggrieved thereby to do any act, his decision shall remain in force until modified or reversed. When any appeal is from a decision of the inspector requiring the person aggrieved to do any act, the appeal shall have the effect of suspending the requirement until the hearing by the board, unless the inspector certifies to the board, after the notice of appeal is filed with him, that by reason of the facts stated in the certificate, a copy of which shall be furnished the appellant, a suspension of his requirement would cause imminent peril to life or property, in which case the requirement shall not be suspended except by a restraining order, which may be granted for due cause shown upon not less than one (1) day's written notice to the inspector, by the board, or by a court of record upon petition made pursuant to G.S. section 160A-446(f) and subsection (e) of this section.

(1)

The board shall fix a reasonable time for the hearing of all appeals, shall give due notice to all the parties and shall render its decision within a reasonable time. Any party may appear in person or by agent or attorney. The board may reverse or affirm, wholly or partly, or may modify the decision or order appealed from and may make such decision and order as in its opinion ought to be made in the matter, and to that end it shall have all the powers of the inspector, but the concurring vote of four (4) members of the board shall be necessary to reverse or modify any decision or order of the inspector. The board shall have power also in passing upon appeals, if there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, to adapt the application of the ordinance to the necessities of the case to the end that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.

(2)

Every decision of the board shall be subject to review by proceedings in the nature of certiorari instituted within fifteen (15) days of the decision of the board, but not otherwise.

(e)

Petition to superior court by owner. Any person aggrieved by an order issued by the inspector or a decision rendered by the board shall have the right, within thirty (30) days after issuance of the order or rendering of the decision, to petition the superior court for a temporary injunction restraining the inspector pending a final disposition of the cause, as provided by G.S. section 160A-446(f).

(f)

Enforcement proceedings prior to June 19, 2006. This section shall become effective upon adoption, and its provisions shall apply in full to all enforcement proceedings under article II of chapter 9 of the Town Code initiated after June 19, 2006.

(1)

With respect to enforcement proceedings that have been initiated prior to June 19, 2006, but for which the council has not yet adopted an ordinance directing the demolition of the dwelling, the inspector shall, if an order has been issued under subsection 9-41(b) of the existing code establishing a shorter compliance period than the sixty-day time period in subsection 9-41(b) of the amended ordinance, serve an amended order that is consistent with the new time limits. Except as provided herein, the provisions of this ordinance shall apply to any such enforcement proceedings.

(2)

With respect to enforcement proceedings that have been initiated prior to June 19, 2006, and for which the council has already adopted an ordinance directing the inspector to demolish a dwelling upon the expiration of a specified period of time if the dwelling has not been brought up to the minimum standards of fitness established by this article, the provisions of such ordinance shall be carried out unless, within ten (10) days after the effective date of this ordinance, the town and the owner of the property that is subject to an enforcement proceeding under this article enter into an agreement staying the enforcement of the minimum housing code pursuant to the provisions of this section. In that event, the provisions of subsection 9-41(c)(2)d. and 9-48(c) of the Code, as amended by this section, shall apply.

(Code 1967, § 9-128.1; Ord. No. 06-06, §§ 1, 4, 8, 6-19-06; Ord. No. 09-10, §§ 1, 2, 9-14-09)