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State ruling renders Durham granny flats ordinance moot

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In Trinity Heights, a tree-lined span of homes bordering Duke University's East Campus, the change in seasons has left the granny flats covered in fallen leaves.

Locals say that many of the flats were built in the last decade, after the City of Durham revamped local ordinances governing their construction. Yet many neighbors were unaware that until only very recently, Durham officials were still enforcing an invalid part of the code.

Homeowners often rent granny flats—detached backyard dwellings also known as accessory homes or backyard cottages—or use them to house a family member. In Raleigh, it's illegal to build them, although that may soon change. But in Durham, the problem is a clause in the city code requiring property owners to "occupy either the primary or the accessory dwelling." A 2008 decision by the North Carolina Court of Appeals apparently invalidates that requirement.

The appellate court upheld a lower court ruling that struck down an identical Wilmington city ordinance. Since the decision was unanimous, it cannot be appealed to the state Supreme Court. Nonetheless, Durham city officials have enforced the occupancy requirement, City-County Inspections Director William Bradham confirmed.

"When they [city inspectors] go out to enforce code, they have a checklist, and that is certainly on it," Bradham says.

Steve Medlin, Durham City-County planning director, says he was unaware of the 2008 ruling until informed of it by INDY Week via email last Thursday.

Some planning personnel are assigned to monitor the state legislature as it takes up issues that might affect or alter the city code, Medlin says. As for the state courts—not so much.

"We don't have anybody on staff who tracks the court of appeals," Medlin says, adding, "I would need someone to cover all of the courts—supreme, superior, all of them—and I don't have that much staff."

Various organizations, including the news media, keep the public informed of the court's decisions, says John Connell, clerk for the state Court of Appeals, but it's up to city officials to monitor them. Moreover, nothing in state law requires court employees to directly notify municipalities when a decision is filed. "We don't do anything more than put them out there on the web," Connell says.

After being informed of the court decision by the INDY, Durham officials are no longer enforcing the occupancy requirement, pending a review by the city attorney's office. Depending on its outcome, the city may develop an amendment to the city code that brings the ordinance into line with the court's ruling.

Medlin says such an amendment would have to be approved by the City Council before becoming law. "But if the attorneys tell me that it's not applicable, then we won't do anything," he says.

A full tally of how many Durham property owners might be affected is uncertain. William Bradham says that since 2007, the inspections department has issued 30 permits to construct backyard residences. That's at least 30 owners who may not have been given the option to rent both residences on their properties.

Many of those properties are located in Durham's Trinity Heights and Trinity Park neighborhoods, says Bob Chapman. From 1999 to 2004, his company, Traditional Development Partners, built six homes with converted garage apartments and other accessory dwellings there.

Asked if Trinity residents have butted heads with city officials over the occupancy requirement, Chapman says, "I don't know if it's ever come up."

Josh Hawn, president of the Trinity Heights Neighborhood Association, says he doesn't know of any property owners in the neighborhood who have clashed with the city over this portion of the code.

Chapman doesn't foresee Durham following Raleigh's lead and outlawing granny flats. "This was settled a while ago," Chapman says. "I can't imagine what the negative implications for changing the law might be."

This article appeared in print with the headline "There is no granny clause."

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