Oakwood modernist house owners’ letter to the Raleigh City Council

Posted on March 20, 2014 

Just days before Raleigh leaders agreed to appeal the Board of Adjustment’s decision that could force a controversial modernist house to be razed, homeowners Louis Cherry and Marsha Gordon sent a lengthy email to the city council.

Here’s the letter reprinted in its entirety:

March 13, 2014

Dear Mayor McFarlane & Members of City Council,

We are respectfully writing with great concern about the home we are building at 516 Euclid St.

On February 19, 2014 the Raleigh Public Record reported a conversation with Mr. McCormick: “City Attorney Thomas McCormick told the Record if Cherry doesn’t file an appeal, he will be required to bring the house into compliance with a new Certificate of Appropriateness. If that can’t be done, the house will need to be torn down. McCormick said that Cherry was notified of the appeal, but continued with construction at his own risk.”

For the record, we were ONLY notified of Ms. Wiesner’s appeal of our COA to BOA by city staff of the RHDC—we received no formal notification from BOA, nor were we informed by anyone prior to the initial BOA hearing of our ability to be involved in the BOA hearing.

City staff of RHDC told us several things at this juncture:

1) that there was nothing about this appeal that would impede us going forward with construction

2) that this would be a hearing only about procedure

3) that the BOA could not substitute its judgment for the judgment of the RHDC (who are expert on historic districts and the Guidelines)

4) that this was an appeal of the RHDC’s decision and we were not a party to the appeal

5) that the worst that could happen is that our COA would have to go back to RHDC to address any concerns regarding the procedures, if any were found (this was also the stated position of Nicolette Fulton, whom the city attorney appointed to represent the RHDC at the BOA hearing)

Please see two attached email correspondences that demonstrate why we felt comfortable proceeding after we learned of the appeal; note also that our house was well under construction when the appeal was filed.

Based upon the information provided to us by the city, we had no reason to feel anything other than confidence in continuing our construction. Why would we come to any other conclusion? Surely it is the city’s responsibility to inform citizens if there is any real potential for risk in a situation like this—how about an email, a letter, a phone call, or even more to the point, issue no building permit, or a stop work before the damage was done?

But none of these things happened—not even a written notification of the appeal from the BOA [for the record, too, the BOA appeal process lasted three months plus another month to ratify the minutes, unfairly prolonging a time-sensitive decision].

Also for the record: we were not given a chance to speak at the BOA hearing despite a review of the rules made by Mr. Charles Coble at the January 13, 2014 hearing: “The Board wishes to hear from anyone who is here to speak with factual or otherwise relevant information pertinent to a particular case that we hear. We do ask that if a group is here either in favor of or in opposition to a particular matter that you select a spokesperson to speak on your behalf. We can also, then, recognize others that may be here representing one side or the other with respect to a matter. We do insist that if multiple people speak on a matter that their testimony not be repetitious.”

This process for public input was inexplicably skipped during the BOA hearing when the public portion of the hearing was abruptly closed after the attorneys for Ms. Wiesner and the city had spoken. Our opportunity was not provided, nor was there any explanation for why this procedure was abandoned. This decision ended up having dire consequences for us. Chairman Coble repeatedly tried to tell the others on the BOA during the debate not to substitute their opinion for the RHDC’s, but to no avail.

We have now had the opportunity to watch Mr. McCormick’s statement to City Council on February 18, 2014 regarding 516 Euclid. Mr. McCormick reports that we received our building permit in December 2013 “at our own risk.” This is not accurate. We received our building permit on October 24, 2013 and because of a change from a basement to a crawlspace had to apply for a revised permit on December 5, 2013. Nobody from the city had ever uttered the word “risk” to us from the date we got our initial permit in October until December 9, 2013. The first time the word “risk” was used to us was at the December 9, 2013 BOA hearing, at which point we were well into construction, had ordered the bulk of our building materials, and had the assurance of city staff that the appeal did not impede our moving forward.

If the City had pulled our permit at any point in the process, that would have indicated a real problem with our situation. But it did not.

Is there really a possibility that the city would tear our nearly complete house down when we have been building it in good faith with a valid building permit in hand? What signal would that send to any property owner in this city, not to mention those considering moving here, and especially to an historic district?

The BOA’s decision is devastating to us; but it is also catastrophic for the RHDC and for any property owners building a home in Raleigh, who will not be able to have faith in a City of Raleigh building permit if this decision is allowed to stand, and especially not in one of the city’s treasured historic districts into which we have invested hundreds of thousands of dollars at this point.

The statement to City Council by Mr. McCormick that most greatly disturbs us with regard to the BOA process and findings is: “we can review those [BOA findings] to see if there is anything particularly relevant to the RHDC’s performance that might require city intervention. Otherwise it would then be up to the property owner, who of course is the party who is most affected by this, to carry forward any appeal.”

If we were “the party most affected by this,” then why were we not allowed to be a party during the BOA hearing and why were we given no opportunity to speak on our own behalf? What now makes us the party upon whom the burden of legal representation, according to McCormick’s statements, will fall? Besides that, it was the BOA and not the RHDC who has fouled up their own procedures and the city should protect the RHDC through this appeal.

We are deeply concerned that the City Attorney’s office is paving the way to shift the legal burden of the situation to us, the property owners, who cannot afford to take on this legal battle and who should not, by the city’s own logic thus far, be expected to. The City of Raleigh and its various semi-autonomous entities issued us a COA, issued us a building permit, and disallowed us from speaking at the BOA hearing that was explicitly between a third party (and likely one with no legal standing) and the RHDC. Isn’t it reasonable for the city to now bear some responsibility and a laboring oar?

What is the city willing to do to protect property owners who participate in the city’s own approval and permitting process in good faith? And, perhaps more importantly for the city, to protect its own entity (RHDC) who will have no credibility if this decision by the BOA is not appealed?

We find ourselves in a potentially ruinous situation, with a home 85% built that, based upon Mr. McCormick’s statements, the city appears unwilling to protect. Would you please help us to resolve this untenable situation?

Respectfully,

Louis Cherry & Marsha Gordon

421 N. Bloodworth St./516 Euclid St.

Sources:

http://raleighpublicrecord.org/news/2014/02/19/future-of-oakwood-house-in-limbo/

http://www.midtownraleighnews.com/2014/02/17/3630206/approval-for-modernist-oakwood.html

http://raleigh.granicus.com/MediaPlayer.php?view_id=24&clip_id=4008

EMAIL EXCHANGE ONE

11/21/2013

Marsha –

No. The appeal is based on the record. I just thought you should know.

Tania

Tania Georgiou Tully, Preservation Planner

Long Range Planning Division

Raleigh Department of City Planning

919.996.2674 new phone number

919.516.2684 (fax)

tania.tully@raleighnc.gov

From: Marsha Gordon [ mailto:marshagordon99@gmail.com]

Sent: Thursday, November 21, 2013 10:03 AM

To: Tully, Tania

Cc: Louis Cherry ( lou.cherry9@gmail.com)

Subject: Re: FW: Raleigh Board of Adjustment - Agenda for 12/09/2013 Meeting

Thanks, Tania. Do we need to come to the meeting and have anything prepared to speak,

or no?

Best, Marsha

On 11/21/13 9:50 AM, Tully, Tania wrote:

Louis & Marsha –

FYI. The appeal has been placed on the December 9th Board of Adjustment agenda. Link is below.

Tania

Tania Georgiou Tully, Preservation Planner

Long Range Planning Division

Raleigh Department of City Planning

919.996.2674 new phone number

919.516.2684 (fax)

tania.tully@raleighnc.gov

EMAIL EXCHANGE TWO

12/11/2013

Hi Louis –

To clarify, there has been a notice of intent to appeal (attached) made by Ms. Wiesner for the windows portion of your application, but the appeal itself has not been formally filed. Regardless, I apologize for not letting you know when I received that notice.

As I said in our conversation, it the RHDC and staff’s opinion that the commission followed all procedures and made its decisions properly. Testimony will be provided at the January Board of Adjustment hearing to that effect so that the Board will be able to uphold the decisions.

Best,

Tania

Tania Georgiou Tully, Preservation Planner

Long Range Planning Division

Raleigh Department of City Planning

919.996.2674 new phone number

919.516.2684 (fax)

tania.tully@raleighnc.gov

From: Louis Cherry [ mailto:lou.cherry9@gmail.com]

Sent: Wednesday, December 11, 2013 8:29 AM

To: Tully, Tania

Cc: Marsha Gordon

Subject: Re: appeal

Hi Tania,

I was surprised to hear that the COA for our window selection has been appealed in addition to the house approval appeal. These windows were ordered last week based on our approval through RHDC and we were not aware of any appeal concerning window approval.

Hopefully both of these approvals will be upheld by the Board of Adjustments.

Thanks,

Louis

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