The long-vacant Sears building stands where its owner wants it to fall.

What’s holding him back, literally and metaphorically, is an unwritten city policy that parties sharing a common wall must both agree to demolition.

Augusta, Georgia-based Hull Group said plans to demolish the Sears building could damage the Charleston Town Center mall. Hull bought the mall last year.

Mayur Patel, owner of the structure that once housed the flagship store, and its demolisher say the building and mall don’t share a common wall and the job should be simple.

Patel wrecker Rodney Loftis allowed a Gazette-Mail photographer into the second-floor Sears building on Wednesday. About 10 feet separates the Sears wall from the mall wall.

Over the past five years, the mall has gone through bankruptcy, receivership under local real estate company CBRE, and a change in ownership.

Hull has 33 malls, stretching from upstate New York to Mississippi. KM Hotels is also a major player in the East, with dozens of establishments. KM officials have talked about putting a hotel in Charleston since 2013, when Danny Jones was mayor.

Patel backed out of this deal, angering Jones. If Patel hadn’t sounded serious, Jones said, the former Holley Hotel site on Quarrier Street might have been sold to someone else.

The hotel developer has been planning to demolish Sears and build a hotel in its place since at least 2018. Representatives from the hotel and CBRE have met several times to discuss demolition clearance, according to the former manager mall marketing manager Lisa McCracken.

“I’m amazed that this deal never went through,” she said.

CBRE agreed to the demolition, said McCracken as well as Patel and his representatives. Then Hull bought the mall, and the Sears building remains.

“They’re letting Hull hold this over our heads,” said Patel’s attorney, Isaac Forman, who practices in Charleston. “They basically give veto power to the Hull Group. It’s between Hull and Patel.

Who calls the shots?

Forman argues that Hull should have no say in the demolition because there are no party walls and easement agreements mandating access to the mall at the Sears building are void, a consequence of the centre’s long decline commercial.

Charleston Building Commissioner Tony Harmon said he was waiting for the two sides to reach an agreement.

Six months after CBRE agreed to the demolition, after periodic meetings over the months, Hull purchased the mall.

Patel wants the hotel to be separate from the mall because most major hotel chains want their facilities to be separate structures to maintain the “flag” or brand.

Sufficient prep work was done for a “Homewood Suites by Hilton” design, intended for Charleston, to appear on the developer’s website. “Description to come,” reads the text below.

Hull vice president for government relations John Mulherin said he was unaware of the city’s policy requiring both parties to sign a demonstration permit.

“The owner of Sears has the right to demolish his building; he just has to do it in a way that doesn’t damage the mall building,” Mulherin said. “I don’t think there’s any disagreement that a hotel is a good use. The problem is that the demolition plan submitted does not meet the criteria of not causing damage to the mall building.

Mulherin couldn’t say how badly the plan would damage the mall. He said the construction people at the company came to this conclusion.

City attorney Kevin Baker said the rule that both parties agree to demolition is informal and not based on city code.

“It protects the rights of private owners,” Baker said in a phone interview. “It’s entrenched in the Constitution.”

What is the frequency of this wall?

Loftis, the son of a longtime Kanawha Valley demolitions expert of the same name, said the wall in question is not a party wall and the hotel could “rise up now.”

“The two structures,” he said, are separated by a “floating, non-bearing wall, a type of masonry block. It must go down by hand. A temporary wall will be built and attached to the mall.

“Once the temporary wall is built, we will demolish the [Sears] structure, exposing the temporary [mall] Wall. Then this wall will be transformed into a permanent wall.

It may seem like a lot of work, Loftis said, but “it’s something we do on a regular basis.” He says $170,000 worth of construction materials are installed at the site. Its crew must check regularly to prevent intruders from stealing the materials.

The vacant Sears sits in the middle of an unsightly downtown patch of vacant and mostly overgrown land. The ugliness stretches from a tidy but vacant parking lot next to the Beni Kedem Temple on Clendenin Street, then moves to the old Sears Automotive Center before reaching a crescendo in a small enclosed lot next to the auditorium municipal.

Although the area lacks anything new or aesthetically pleasing, the city sticks to its guns.

“The city wants to see investment and progress,” said Matt Sutton, chief of staff for Mayor Amy Shuler Goodwin, in a statement, “but private landowners need to agree on demolition of their properties. The former Sears property has known this for years and the building department has applied it consistently to multiple mall owners.”

The question of whether Patel should be allowed to build his hotel is also affected by legal agreements made decades ago when the mall opened.

Forman cites an original 1982 easement agreement stating that any mall operator can raze or remove their building at any time after their operating covenant expires.

Events that could trigger the end of the covenant are a 60% vacancy rate and at least two other non-operational anchors. The mall has only one operating anchor, JCPenney.

The easement agreement is no longer in effect, Forman said, due to vacancy rates and a lack of anchors. If Sears still owned the building, he could tear it down any way Patel wants.

“In other words, once the department stores are released from operating covenants, those easements go away and you can demolish the building,” Forman said. “That makes sense. If you’re Sears, you say we’ll give you rights of way and access through our building, but once the music stops, those go away.

It takes two to tango – and tear down

“The structures are not connected,” Loftis said.

Visual inspection by a layman leads to this conclusion. The walls are wide enough to exercise. The Sears wall is a masonry block, well inside the exterior wall of the mall. They are not party walls as they are defined in the standard way.

Except for five years in the 1990s, McCracken served as assistant marketing coordinator or marketing manager from the mall’s birth in 1983 until Hull bought it last May. She participated in periodic meetings over the course of about two years between Patel, CBRE and city officials, which resulted in what she understood to be an agreement.

“I’ve never seen a final document, but I know they spent months and months negotiating to make sure the mall structure was protected before granting approval to Patel,” he said. said McCracken. “It was a top priority and a big concern from a mall perspective. It was not a matter of last minute, willy-nilly, without consequence. Lots of time and lawyer hours went into before CBRE signed ahead of the Hull sale.

McCracken estimated the talks took place from late 2017 through 2020.

Forman said both parties signed a contract agreeing to the demolition. But KM missed his window.

KM Hotels experienced supply delays, carried out the necessary legal work and obtained demolition permission from owners in the nearby town centre.

By the time KM approached the city to apply for a permit, Hull had taken over the mall. The Building Commission advised KM that it would have to enter into a new agreement with Hull.

Any Charleston resident who has spent any time here remembers that downtown once had four operating flagship stores. Three structures remain, and one is still in operation, but Montgomery Ward disappeared in 2001, pulled from the main mall.

First a standalone Bob Evans occupied the space, then Brick Street Insurance and now Encova.

cut cheese

The main element of building separation is how to support a load-bearing wall during construction, said local civil engineer Sam Wood.

“If you share a common wall, there’s a state of equilibrium, and changing that wall can change the stability,” Wood said. “A non-bearing wall does not support any load from above. In most of these cases, you can remove it without affecting anything structural in the main building envelope. It makes things much simpler. You don’t need to redesign or put supports around it.

Wood said he hadn’t seen Sears’ wall.

New York common law states that a property owner who demolishes a building attached to another by a party wall may be liable for damages if the support to the party wall is reduced during construction or if other work is negligently carried out .

Kenneth Block, writing in the New York Law Journal, cites New York City Building Code Section 3309, which also emphasizes liability.

“The developer must support the vertical load of the adjoining structure – including a party wall – by suitable foundations, underworks or other equivalent means. The excavator owner’s duty does not end with the completion of the excavation; it is required to support the wall with appropriate foundations so that it remains as stable as before.

City of South Charleston City Engineer Steve DeBarr said his office will more than likely investigate the situation and bring the parties together before making a decision.

“We would work with all parties to try to find a solution,” DeBarr said. “You would like to bring a Hilton. I don’t think it’s insurmountable, but as a municipal engineer I should insist that the plans be prepared by an engineer and executed under the supervision and direction of an engineer. It may not be easy and it may not be cheap and public safety comes first, always.

Some real common walls are indeed a dead end, he said.

“You have to figure out whether that’s the case or not,” DeBarr said. “With a shared wall, the line runs down the middle. It’s like slicing cheese. There’s no way to just divide it up and down.

DeBarr said he understands the caution of the city of Charleston.

“If something bad happens, the very first thing all parties are going to do is say, ‘The city gave me a permit,'” DeBarr said. “If I’m going to give you a permit, I’m going to make sure I’m on solid ground.”