Horton v. Gulledge
177 S.E.2d 885
N.C.
1970
Check Treatment
LAKE, Justice.

Thе evidence, though in conflict, includes testimony which supports the findings of fact made by the Housing Commission and approved by the Superior Court. Consequently, for the purpose of this appeal, we accept as true the findings that the petitioner’s house is prеsently unfit for human habitation and dangerous, and that repairs necessary to bring it into conformity with the Housing Code will cost 60%, or more, of the present value of the building. These findings were made after notice and *358 after a hearing in which the record discloses no failure to comply with prescribed procedures.

The finding that the petitioner’s house is unfit for human habitation would authorize the city to forbid the use of it for such purpose while it remains in that condition. See Dale v. Morganton, 270 N.C. 567, 155 S.E. 2d 136. That, however, is not the question presented in this case. This Court has recognized the authority of a city to order the removal of a structure unlawfully erected in violation of its valid zoning ordinance. In re Appeal of Parker, 214 N.C. 51, 197 S.E. 706. That, also, is not the question before us. In State v. Walker, 265 N.C. 482, 144 S.E. 2d 419, we affirmed the conviction of the owner of a dwelling house, charged with remodeling and repairing it himself, without first applying for and obtaining a permit from the city. There, as here, the city’s Suрerintendent of Building Inspection had ordered the dwelling demolished, having found it unfit for habitation, but, unlike the present case, it was found in the Walker case that the house could neither be altered nor improved so as to comply with the minimum requirements of the city’s housing cоde. Nevertheless, the judgment which this Court affirmed imposed a sentence suspended on condition that the owner comply with the city’s housing code within thirty days. The question in that case was not the authority of the city to demolish the building without paying for it, but the authority of the city to рrohibit the making of repairs without a permit. It is within the police power of the State to establish minimum standards of design and materials in the construction of buildings for the safety of the occupants, their neighbors and the public, and this power may be and has been delegаted to cities and towns. State v. Walker, supra. This, too, is not the question now before us.

We have, in numerous recent decisions, also recognized that the State may delegate, and has delegated, to cities the power to take private property in slum areas under the power of eminent domain, upon рayment to the owner of just compensation therefor, the city’s purpose being to destroy structures thereon and then to resell the land so as to redevelop the area or to construct thereon low cost housing to be owned by the city and leаsed to tenants. See: Redevelopment Commission v. Hagins, 258 N.C. 220, 128 S.E. 2d 391; Redevelopment Commission v. Bank, 252 N.C. 595, 114 S.E. 2d 688; Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693. On the other hand, we have held that *359 even the State, itself, may not, under the guise of the police power, regulate the use of property for aesthetic reasons ‍‌‌​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌​‌‌​​​‌‌​​​‌‌‌‌‌​​‌​​‌‌​​​​‍which have no real or substantial relation to the public health, safety or morals, or to the general welfare. State v. Brown and State v. Narron, 250 N.C. 54, 108 S.E. 2d 74. It is well established that a municipal corporation has no inherent police power, but may exercise such power only to the extent that it has been conferred upon the - city by statute. Dale v. Morganton, supra; State v. Furio, 267 N.C. 353, 148 S.E. 2d 275. Obviously, the Legislature cannot confer upon a city a power which the Legislature, itself, does not have. Consequently, a city may not, under the guise of the police power, destroy private property for aesthetic reasons alone.

In Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 99 L.Ed. 27, the Supreme Court of the United States said, “It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” The expression “the law of the land,” as used in Art. I, § 17, of the Constitution of North Carolina (Art. I, § 19, of the amended Constitution, ratified at the general election in 1970), has the same meaning as the expression “due process of law.” State v. Ballance, 229 N.C. 764, 51 S.E. 2d 731. Nevertheless, a decision of the Supreme Court of the United States construing the Due Process Clause of the Fourteenth Amendment tо the Federal Constitution, though persuasive by reason of our respect for the views of that Court, does not control our interpretation of the Law of the Land Clause in the Constitution of North Carolina. Consequently, the above quoted declaration in the Berman case does not release the General Assembly of North Carolina, or its delegatee, from limitations imposed upon it by the Law of the Land Clause as construed by this Court.

The solution of the question before us in the present case is, therefore, not determinеd by any of the above cited decisions. The present question is:

May a city of this State, pursuant to an ordinance adopted under the authority of G.S. 160-182 et seq., upon finding that a dwelling house therein is unfit for human habitation and that repairs, sufficient to bring it into compliance with the сity’s housing code, will cost 60% or more of the value of the unrepaired building, demolish the building without paying compensation to the owner, and fasten upon the lot a lien for *360 the cost of the demolition, without giving the owner a reasonable opportunity ‍‌‌​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌​‌‌​​​‌‌​​​‌‌‌‌‌​​‌​​‌‌​​​​‍to bring the building into сonformity with the Housing Code?

We hold that the city may not do so under the circumstances of this case.

The record discloses that this petitioner has made no specific proposal to the city for the repair of his house. However, the order served uрon him and the ordinance upon which it rests do not offer him that alternative to demolition of the building. He was served with the blunt direction, Destroy the house within the time specified or the city will do so and charge you for the expense of its demolition. The ordinance is mаndatory in its terms. It leaves the Inspector of Buildings and the Housing Commission no alternative to destruction when the cost of repair will exceed 60% of the unrepaired value of the building. Faced with such an order and such an ordinance, the owner is not required to propose an alternative remedy for the undesirable condition of his building before asserting his constitutional right in the courts.

The city does not contend that this house cannot be repaired so as to bring it into conformity with the standards prescribed in its Housing Code. It does not rеly upon, or find, the existence of a threat to the safety of persons or property so imminent that immediate destruction of the building is necessary to avoid the danger. Cases dealing with destruction of animals afflicted with an infectious disease, with destruction of сontaminated food or destruction of a type of tree which, by its inherent, unalterable nature is a breeding place for a parasite which destroys another, more valuable type of tree are not in point here. See Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568.

This property is located in an area designated by the city’s Redevelopment Commission as a project to be carried out by that commission. The fact that the city does not have available, or has not appropriated to its Redevelopment Commission, funds for purchasing the property, or for taking it by eminent domain, does not confer upon the city the power to take it for destruction without compensation.

The city’s argument that Horton’s property is not to be taken under the order in question because he will still retain the legal title to the lot, subject to a lien for the cost of demolishing *361 the house, is not convincing. Horton now owns a house and a lot unencumbered. If the order of the Housing Commission be carried out, he will then own only a lot and it will be subject to a lien. This is not a regulation оf the use of his property. This is depriving him of a substantial part thereof. The Law of the Land Clause of the State Constitution forbids this to be done without compensation except when necessary to protect the public health, safety, or morals or the genеral welfare.

Taking the city’s evidence at its full face value, the unrepaired house is fairly worth $3,000 over and above the value of the lot on which it is located. By an expenditure of $2,800 for repairs, Horton can bring the house up to the specifications of the Housing Code for human habitation. Obviously, such expenditure will substantially enhance the present value of the building. Let us assume that the repaired and rehabilitated house will be worth only $5,000 over and above the value of the lot. The order of the Housing Commission denies Horton the right to own a $5,000 house in return for an expenditure of $2,800 and leaves him, instead, with an empty lot subject to a lien for the cost of removing the building.

The Ohio Court of Appeals had before it a similar case in Abraham v. City of Warren, 67 Ohio App. 492, 37 N.E. 2d 390. In holding that the city could not destroy the building there in question without ‍‌‌​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌​‌‌​​​‌‌​​​‌‌‌‌‌​​‌​​‌‌​​​​‍affording the owner an opportunity to make it safe for occupancy, the Court said:

“The only warrant for public interference with plaintiff’s building is to secure public safety and to protect the health of those occupying the building. * * *
“ ‘Desirable as it might be from an aesthetic point of view to have public control of рrivate building, the law does not permit an invasion of private rights on such grounds.’ Maxedon v. Rendigs, Com’r of Buildings [9 Ohio App. 60, 63] * * *
“It is not the province of this court, and this court will not undertake to decide as an economic proposition whether it would be more desirable for plaintiff to raze the present struсture to the foundation and use the material and the cost of repair for the erection of another structure upon that foundation, or to repair and rebuild the present structure. That is a matter in which the plaintiff is entitled to *362 act upon her own choiсe and judgment, so long as she pays due regard to the right of the public, and tenants of the building, to secure proper safety and sanitary conditions. Even though it might be entirely unwise from a financial viewpoint for the owner to undertake to preserve so much of her building аs is admitted to be safe, she has the right to and is acting within her rights in so doing, so long as she does not impair the lives or property of others maintaining the structure so rebuilt.”

The order of demolition in this case, if carried out, would clearly deprive the plaintiff both of proрerty presently owned by him and of the liberty to invest in its improvement. This case is distinguishable from the numerous decisions sustaining the power of a city to forbid the substantial repair and restoration of a building in a fire district, or other area zoned for restricted use, which building, having been in such district prior to its establishment, was permitted to remain therein as a nonconforming use. See: State v. Lawing, 164 N.C. 492, 80 S.E. 69; Zalk & Josephs Realty Co. v. Stuyvesant Insurance Co., 191 Minn. 60, 253 N.W. 8; City of Odessa v. Halbrook, 103 S.W. 2d 223 (Tex. Civ. App.).

As Mr. Justice Holmes, speaking for the Supreme Court of the United States, said in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 67 L.Ed. 322, “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

It is quite true that the police power of the State, which it may delegate to its municipal corporation, extends to the prohibition of a usе of private property which may reasonably be deemed to threaten the public health, safety, ‍‌‌​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌​‌‌​​​‌‌​​​‌‌‌‌‌​​‌​​‌‌​​​​‍or morals or the general welfare and that, when necessary to safeguard such public interest, it may be exercised, without payment of compensation to the owner, even though the property is thereby rendered substantially worthless. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; McQuillin, Municipal Corporations, § 24.552. However, the limit of the police power is the reasonable necessity for the action in order to protect the public. Prichard v. Commissioners, 126 N.C. 908, 36 S.E. 353; Moll Co. v. Holstner, 252 Ky. 249, 67 S.W. 2d 1; Appeal of Medinger, 377 Pa. 217, 104 A 2d 118. In 16 AM. JUR. 2d, Constitutional Law, § 290, it is said:

*363 “The police power does not include power arbitrarily to invade property rights. [Citing, Washington ex rel Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654.] The lawmaking authorities may not, under the guise of police power, impose restrictions which are unnecessary and unreasonable upon the use of private property. Poliсe regulation of the use or enjoyment of property rights can only be justified by the presence of a public interest, and such rights may be limited only to the extent necessary to subserve the public interest.”

Again, the same authority states in § 368:

“ [P] ublic necessity is the limit of the right to destroy property which is а menace to public safety or health and the property cannot be destroyed if the conditions which make it a menace can be abated in any other recognized way.”

In the instant case, it appears from the findings of the Housing Commission that the house in question can be repaired so as to comply with the city’s Housing Code, be suitable for human habitation and be no longer a threat to public health, safety, morals or general welfare. To require its destruction, without giving the owner a reasonable opportunity thus to remove the existing threat to the public health, safety and welfare, is arbitrary and unreasonable. Such power may not be delegated to or exercised by a municipal corporation of this State by reason of Art. I, § 17, of the Constitution of North Carolina (Art. I, § 19, of the revised Constitution, ratified at the general election of 1970).

We do not have before us the question of the authority of the city to destroy this property, without paying the owner compensation therefor, in the event that the owner ‍‌‌​​‌‌‌‌‌‌​​​​‌​‌‌‌‌‌​‌‌​​​‌‌​​​‌‌‌‌‌​​‌​​‌‌​​​​‍does not, within a reasonable time allowed him by the city for that purpose, repair the house so as to make it comply with the requirements of the Housing Code.

The judgment of the Superior Court is reversed, and the order of the Housing Commission is vacated without prejudice to the right of the city to amend its ordinance and the right of the Housing Commission thereupon to take such further action in this matter, consistent with this opinion, as it may deem advisable.

Reversed.