1. Cities and Towns--demolition--quasi-judicial decision--standard of review
The standard of review applied in reviewing a town board of alderman's quasi-judicial
decision whether to issue a demolition order under N.C.G.S. § 160A-429 is based on a de novo
review if petitioner contends the legislative body's decision was based on an error of law, or is
based on the whole record test if petitioner contends the legislative body's decision was not
supported by the evidence or is arbitrary and capricious.
2. Cities and Towns--demolition--compliance with statutory procedures--decision not
arbitrary or capricious
A town board of aldermen did not act arbitrarily or capriciously by condemning and then
requiring demolition of a building owned by plaintiffs, because: (1) defendant complied with the
procedures set forth under N.C.G.S. §§ 160A-424 to 160A-429; (2) the code enforcement official
conducted an inspection of the property on 25 March 1998, satisfying the requirements of
N.C.G.S. § 160A-426 for condemnation of plaintiffs' building; and (3) after nearly a full month
passed and no corrective action was taken, the official sent plaintiffs a notice of hearing and a
hearing was held determining the property should be demolished based on the length of time the
property had been in unsafe condition and the unlikelihood that plaintiffs would actually take
sufficient steps to improve the property.
3. Cities and Towns--demolition--reasonable time to repair property
The trial court did not err by affirming the town board of alderman's order requiring
demolition of a building owned by plaintiffs even though plaintiffs contend defendant town
failed to provide plaintiffs with a reasonable amount of time to repair the property in order to
bring it up to standard and avoid demolition, because: (1) plaintiffs were given forty days from
the posting of the notice of unsafe structure to the hearing before the code enforcement official to
take steps toward repairing the building in an attempt to influence the code enforcement official's
decision to either repair, close, vacate, or demolish the building; and (2) there is no evidence
plaintiffs contacted anyone for the formulation of plans to restore the building, nor sought the
required permits to undertake repairs to the building during this forty-day period.
Patrick U. Smathers, for plaintiffs-appellants.
Russell & King, P.A., by Sandra M. King, for defendant-
appellee.
CAMPBELL, Judge.
Plaintiffs Eleanor Coffey and Kristen Coffey West appeal the
trial court's order affirming the Town of Waynesville Board of
Alderman's (“Board”) order requiring demolition of a building owned
by plaintiffs. We affirm the trial court's order.
Plaintiffs are the record owners of real property and an
attached building located at 250 Westwood Circle, Waynesville
(“Town”), North Carolina. Based on its deteriorating and
eventually dangerous condition, the building has been a subject of
concern to local government for over twenty years, during which
time it has not been occupied. In fact, the possibility of
condemning the building was discussed by local government officials
as far back as 1984.
On 25 March 1998, the Town's Code Enforcement Official, Jack
Morgan (“Morgan”), inspected the property pursuant to N.C. Gen.
Stat. § 160A-424 to determine its condition. Morgan photographed
the building from various angles. However, he did not enter all
parts of the building, as some areas were deemed too dangerous to
enter. Upon inspection, he found the building to be in a “serious
state of decay due to neglect, possible vandalism and exposure to
weather conditions.” He determined the building to be unsafe
pursuant to N.C. Gen. Stat. § 160A-426, and that unsafe structure
proceedings should be started as soon as possible. Morgan posted
two “Notices of Unsafe Structure” in conspicuous places on the
exterior of the building, as required by G.S. § 160A-426. Morgan
also asked Alex Corbin, a fellow employee of the Town's Inspection
Department, to inspect the building, and Corbin concurred with
Morgan's assessment that the building was unsafe. On 5 April 1998 and 22 April 1998, Morgan returned to the
property and re-posted “Notices of Unsafe Structure” to replace his
previous notices which had been removed. On 22 April 1998, Morgan
mailed a “Notice of Hearing” to plaintiffs pursuant to N.C. Gen.
Stat. § 160A-428 informing them of the unsafe condition of the
property, certain corrective actions that needed to be taken, and
that a public hearing would be held in his office to determine the
future of the building on 4 May 1998. Morgan also informed
plaintiffs that he would issue an order to either repair, close,
vacate, or demolish the building, as determined to be appropriate
following the hearing.
At the 4 May 1998 hearing, Lyle Coffey (“Mr. Coffey”), husband
of plaintiff Eleanor Coffey, appeared on plaintiffs' behalf, and
indicated that he and plaintiffs had not been aware of the
condition of the property prior to receiving the “Notice of
Hearing,” but that they were now aware of the property's unsafe
condition and wished to try to make the building safe. Morgan
discussed with Mr. Coffey that the building was listed with the
Haywood County Tax Office as having no value, and that, in Morgan's
opinion, repairing it would be a waste of money. The two men also
discussed the Coffey family's past record of not making promised
repairs to other dilapidated structures they owned in the Town, as
well as a letter from the Town's police department outlining
numerous complaints that had been lodged over the past twenty years
regarding the building and its condition. Based on the Coffey
family's past indifference to making their properties safe, the
length of time 250 Westwood Circle had been in unsafe condition,and the fact that the cost of repairing the building would be
substantially greater than its value, Morgan determined that the
building should be demolished pursuant to N.C. Gen. Stat. § 160A-
429. Plaintiffs were served with notice of this decision by
“Finding in Fact and Order” dated 5 May 1998, ordering the
demolition of the building and removal of debris from the property
by 6 July 1998. The order further informed plaintiffs of their
right to appeal the demolition order to the Board within 10 days.
Plaintiffs timely appealed the order to the Board and a
hearing was held on 26 May 1998. The minutes of this hearing
indicate that some exterior improvements and some minor interior
structural repairs had been made to the building since Morgan's
last inspection. According to Morgan, the deteriorated stairs had
been removed from the back of the building, repair work had been
done to a window that had collapsed, some floor joists had been
replaced, and the area under the carport had been cleaned out. In
response to a question from a member of the Board, Morgan stated
that the property was still in no condition to be rented.
Plaintiff Eleanor Coffey stated her desire to repair the property
so it would no longer be a fire hazard or an eyesore to the area.
The Board heard from Jack Smith (“Smith”), who lives across the
street from the subject property. Smith stated that the property
had been in the same state of deterioration for twenty years and
that the Coffey family cared nothing about the condition of their
properties located in the Town. The Board voted unanimously to
affirm the demolition order, and the date of demolition and removal
of debris was moved back to 17 July 1998. Plaintiffs subsequently filed an appeal with the North
Carolina Commissioner of Insurance (“Commissioner”) pursuant to
N.C. Gen. Stat. § 160A-434. They were informed by the Commissioner
that he lacked jurisdiction over the matter.
On 16 June 1998, Morgan visited the property to discuss it
with Mr. Coffey. Mr. Coffey showed Morgan some repairs and
painting that had been done, and that some of the decayed material
had been removed from the property. Morgan again took pictures of
the property, was denied entry into the building by Mr. Coffey, and
informed Mr. Coffey he was likely wasting his time in making the
improvements. Mr. Coffey informed Morgan that he and plaintiffs
still intended to improve the property and were not going to have
the building demolished. Morgan returned to inspect the property
on 6 July 1998, only to find that the yellow warning ribbon had
been removed, debris and combustible material remained, and that
the building remained in an unsafe condition in violation of the
Board's order.
Plaintiffs filed a notice of appeal, petition for writ of
certiorari, complaint for declaratory judgment, complaint for
damages, and motion for injunctive relief in Haywood County
Superior Court on 30 June 1998. Having received an extension of
time to plead, defendant filed an answer, motion to dismiss, and
motion to sever on 28 August 1998. On 14 October 1998, Judge
Marcus Johnson entered an order severing plaintiffs' “Notice of
Appeal [and] Petition for Writ of Certiorari” from plaintiffs'
“Complaint for Declaratory [Judgment], Complaint for Damages, [and]
Motion for Injunctive Relief.” Plaintiffs filed a motion forpartial summary judgment on 5 April 1999, which motion was denied
by Judge Dennis J. Winner by order dated 10 May 1999. On 7 June
1999, Judge Winner dismissed plaintiffs' notice of appeal but
issued a writ of certiorari, and scheduled a hearing for the next
available session of Superior Court.
Upon stipulation of the parties in order to prepare a written
record for Superior Court, the Board held a second evidentiary
hearing on 29 June 1999 to consider plaintiffs' appeal of the
demolition order. Following this hearing, the Board entered a new
order with extensive findings of fact and conclusions of law
affirming the demolition. The written record of this hearing was
certified to Superior Court on 27 July 1999. On 31 August 1999, a
hearing was conducted by the trial court, which entered an order
affirming the Board's decision, concluding defendant: (1) correctly
followed the procedures specified in N.C. Gen. Stat. §§ 160A-424 to
160A-431; (2) made no errors of law in its review of the decision
of the Code Enforcement Official; (3) protected the due process
rights of plaintiffs; (4) based its decisions on competent,
material, and substantial evidence; and (5) did not act in an
arbitrary and capricious manner. Plaintiffs appeal.
On appeal, plaintiffs assert two bases on which the trial
court erred in upholding defendant's demolition order: (1)
defendant acted in an arbitrary and capricious manner in not
following the procedures specified in N.C. Gen. Stat. §§ 160A-424
to 160A-429 for condemning unsafe property and ordering its
demolition, and (2) defendant acted in an arbitrary and capricious
manner in not allowing plaintiffs a reasonable period of time to bring the property into compliance with applicable standards.
[1]We begin by noting that the role of the superior court in
reviewing a municipality's decision ordering demolition of a
building pursuant to G.S. § 160A-429 is not statutorily mandated,
nor has it been defined by the appellate courts of this State.
Likewise, the standard to be applied by this Court in reviewing a
superior court order in such a case has not been addressed. When
determining whether to issue a demolition order pursuant to G.S. §
160A-429, a municipal board which ordinarily sits as a legislative
body, such as the Board in the instant case, sits as a quasi-
judicial body. Its role is similar to that of a municipal board
deciding whether to grant or deny a conditional use permit under
N.C. Gen. Stat. § 160A-381(a), See Sun Suites Holdings, LLC v.
Board of Alderman of Town of Garner, 139 N.C. App. 269, 533 S.E.2d
525, disc. review denied, 353 N.C. 280, ____ S.E.2d ____
(2000)(citations omitted), or a municipal board determining whether
a local ordinance has been violated. See In re Appeal of Willis,
129 N.C. App. 499, 500 S.E.2d 723 (1998). In these situations, the
municipal board sits as a quasi-judicial body to hear evidence, to
determine the existence of facts and conditions, and to draw legal
conclusions therefrom as a basis of official action. See Concrete
Co. v. Bd. Of Comm'rs, 299 N.C. 620, 625, 265 S.E.2d 379, 382,
rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980). The
standard to be applied in reviewing such quasi-judicial decisions
of these boards which ordinarily act as legislative bodies is well
established. We believe this standard is instructive indetermining the standard to be applied in the instant case.
When reviewing the decision of a legislative body acting in
its quasi-judicial capacity, the trial court sits as an appellate
court, and not as a trier of facts. Tate Terrace Realty Investors,
Inc. v. Currituck County, 127 N.C. App. 212, 217, 488 S.E.2d 845,
848, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997).
Thus, the trial court's task includes:
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law
in both statute and ordinance are followed,
(3) Insuring that appropriate due process
rights of a petitioner are protected including
the right to offer evidence, cross-examine
witnesses, and inspect documents,
(4) Insuring that decisions of town boards are
supported by competent, material and
substantial evidence in the whole record, and
(5) Insuring that decisions are not arbitrary
and capricious.
Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383. If the
petitioner contends the legislative body's decision was based on an
error of law, “de novo” review is the proper standard of review.
JWL Invs., Inc. v. Guilford County Bd. Of Adjust., 133 N.C. App.
426, 429, 515 S.E.2d 715, 717, disc. review denied, 351 N.C. 357,
540 S.E.2d 349 (1999). However, if the petitioner contends the
legislative body's decision was not supported by the evidence or
was arbitrary and capricious, then the reviewing court must apply
the “whole record” test. Id. Moreover, “[t]he trial court, when
sitting as an appellate court to review [a decision of a quasi-judicial body], must set forth sufficient information in its order
to reveal the scope of review utilized and the application of that
review.” Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 389,
511 S.E.2d 340, 342 (1999). The role of appellate courts in such
cases is to review the trial court's order for errors of law, just
as with any other civil case. Act-Up Triangle v. Comm'n for Health
Servs., 345 N.C. 699, 483 S.E.2d 388 (1997). This process of
review by appellate courts has been described as a two-fold task:
(1) determining whether the trial court exercised the appropriate
scope of review and, if appropriate, (2) deciding whether the court
did so properly. Id. at 706, 483 S.E.2d at 392.
Based on the similarities between the role of a board of
alderman in deciding whether to issue a demolition order under G.S.
§ 160A-429, and the role of legislative bodies in performing other
quasi-judicial functions, we hold that the foregoing standard
should apply to our review of the instant case.
[2]In their appeal, plaintiffs make two arguments in support
of their contention that the trial court erred in affirming the
Board's demolition order. First, plaintiffs argue that defendant
was arbitrary and capricious in failing to follow the procedures
specified in G.S. §§ 160A-424 to 160A-429 for ordering the
demolition of property. Plaintiffs also argue that defendant acted
arbitrarily and capriciously in failing to provide plaintiffs with
a reasonable period of time to bring their property into compliance
with the law, as required by Horton v. Gulledge, 277 N.C. 353, 177
S.E.2d 885 (1970), overruled on other grounds, State v. Jones, 305N.C. 520, 290 S.E.2d 675 (1982). Although plaintiffs use t
he
phrase “arbitrary and capricious” in describing the decision of the
Board, their arguments are in fact based on their belief that
defendant's decision contained errors of law, in that: (1)
defendant did not follow the proper statutory procedure for
ordering demolition of property; and (2) defendant failed to
provide a reasonable amount of time to repair the property, as
required by law.
When a party contends that a legislative body's decision, made
while acting in its quasi-judicial capacity, was based on an error
of law, “de novo” review is proper. JWL Invs., Inc., 133 N.C. App.
at 429, 515 S.E.2d at 717. Plaintiffs do not allege that the trial
court exercised the wrong standard in reviewing the Board's
demolition order; thus, we proceed to determine whether the trial
court exercised “de novo” review properly. See SBA, Inc., v. City
of Asheville, 141 N.C. App. 19, ___ S.E.2d ___ (2000)(citations
omitted).
N.C. Gen. Stat. §§ 160A-424 to 160A-429 establish a procedure
by which cities and towns may condemn buildings found to be unsafe
and dangerous, and ultimately order that they be demolished for the
protection of the public. Under G.S. § 160A-424, a local
inspection department “shall make periodic inspections, subject to
the [town] council's directions, for unsafe, unsanitary, or
otherwise hazardous and unlawful conditions in structures within
its territorial jurisdiction,” and “shall make inspections when it
has reason to believe that such conditions may exist in aparticular structure.” N.C. Gen. Stat. § 160A-424 (1999). The
inspector is required to notify the owner or occupant of any
building in which the inspector finds defects, failures to comply
with the law, or other dangerous or fire hazardous conditions.
N.C. Gen. Stat. § 160A-425 (1999). In especially dangerous
situations, the local inspector is guided by G.S. § 160A-426, which
reads:
§ 160A-426 Unsafe buildings condemned.
Every building which shall appear to the
inspector to be especially dangerous to life
because of its liability to fire or because of
bad condition of walls, overloaded floors,
defective construction, decay, unsafe wiring
or heating system, inadequate means of egress,
or other causes, shall be held to be unsafe,
and the inspector shall affix a notice of the
dangerous character of the structure to a
conspicuous place on the exterior wall of said
building.
N.C. Gen. Stat. § 160A-426 (1999)(emphases added). Once a building
has been condemned as unsafe under G.S. § 160A-426, and the owner
has failed to take prompt corrective action, the local inspector is
required to send written notice to the owner informing the owner
that the building is in dangerous or hazardous condition, that a
hearing will be held to determine the future of the building, and
that following the hearing an order to either repair, close,
vacate, or demolish the building will be entered as deemed
appropriate. N.C. Gen. Stat. § 160A-428 (1999). G.S. § 160A-429
further provides:
If, upon a hearing held pursuant to the notice
prescribed in G.S. 160A-428, the inspector
shall find that the building or structure is
in a condition that constitutes a fire or
safety hazard or renders it dangerous to life,
health, or other property, he shall make anorder in writing, directed to the owner of
such building or structure, requiring the
owner to remedy the defective conditions by
repairing, closing, vacating, or demolishing
the building or structure or taking other
necessary steps, within such period, not less
than 60 days, as the inspector may prescribe;
. . .
N.C. Gen. Stat. § 160A-429 (1999)(emphases added). Any order
entered pursuant to G.S. § 160-429 may be appealed to the town
council within 10 days, and must be heard in a reasonable time,
with the town council having the power to affirm, modify and
affirm, or revoke the order. N.C. Gen. Stat. § 160A-430 (1999).
This Court's review of the record indicates defendant complied
with the procedures set forth in G.S. §§ 160A-424 to 160A-429.
Morgan, the Town's Code Enforcement Official, conducted an
inspection of the property on 25 March 1998 based on reason to
believe the property was in dangerous condition. Upon inspection,
Morgan found the property to be unsafe and posted notice of the
dangerous character of the property pursuant to G.S. § 160A-426.
Contrary to plaintiffs' argument on appeal, Morgan's actions on 25
March 1998 complied with the requirements of G.S. § 160A-426, thus,
constituting condemnation of plaintiffs' building. After nearly a
full month passed and no corrective action was taken, Morgan sent
plaintiffs the “Notice of Hearing.” Morgan held a hearing and
determined the property should be demolished, based on the length
of time the property had been in unsafe condition and the
unlikelihood that the plaintiffs would actually take sufficient
steps to improve the property. This order was appealed to the
Board and affirmed after two separate hearings. Therefore, we findno merit in plaintiffs' argument that defendant failed to properly
follow the statutory procedure. Accordingly, this assignment of
error is overruled.
[3]Plaintiffs also argue defendant failed to provide
plaintiffs a reasonable amount of time to repair the property in
order to bring it up to standard and avoid demolition, as required
by Horton. The trial court found that plaintiffs' reliance on
Horton was misplaced because its facts were distinguishable from
the facts in the instant case. We agree with the trial court and
likewise overrule this assignment of error.
In Horton, the defendant City of Greensboro (“City”) had
adopted a Housing Code pursuant to N.C. Gen. Stat. §§ 160-182 et
seq. (currently N.C. Gen. Stat. §§ 160A-441, et seq.). The Housing
Code provided that if, after notice and hearing, the Inspector of
Buildings of the City (“Inspector”) determined that a building was
unfit for human habitation, he was required to state such
determination in writing and issue an order. If the building could
be brought up to Housing Code standards by repairs costing less
than 60% of the present value of the building, the Inspector was
required to order the owner to repair the building, or vacate and
close the building as a human habitation. If repairs to bring the
building up to Housing Code standards could not be made at a cost
of less than 60% of the building's present value, the Inspector was
required to order demolition of the building. If the owner failed
to comply with an order of demolition, the Housing Commission could
direct the Inspector to have the building demolished and impose alien on the land for the cost of demolition.
Pursuant to the Housing Code, an inspection was made of a
dwelling house owned by the plaintiff. After notice and hearing,
the Inspector entered an order directing the plaintiff to demolish
the building and finding as fact: (1) that the building was unfit
for human habitation, and (2) that repair of the building would
cost more than 60% of the building's present value. The plaintiff
appealed to the defendant's Housing Commission, which thereupon
affirmed the decision and order of the Inspector. On certiorari,
the decision of the Housing Commission was affirmed by Superior
Court.
On appeal, the Supreme Court held that the defendant could
not, under the circumstances present, demolish the building without
paying compensation to the plaintiff, and impose upon the lot a
lien for the cost of the demolition, without giving the owner a
reasonable opportunity to bring the building into conformity with
the Housing Code. The Supreme Court reasoned that requiring
destruction of the building in such a case, without giving the
owner a reasonable opportunity to remove the existing threat to the
public health, safety and welfare, was arbitrary and unreasonable.
However, the Court specifically did not address the question of the
authority of the defendant to destroy the plaintiff's property,
without paying compensation therefor, in the event the plaintiff
did not, within a reasonable amount of time allowed him by the
defendant, repair the house so as to make it comply with the
requirements of the Housing Code.
The facts in the case sub judice are distinguishable from thefacts in Horton. In Horton, demo
lition was ordered pursuant to an
ordinance which was mandatory in its terms. The Inspector and
Housing Commission had no alternative to demolition once the
building had been found to be unfit for human habitation and the
cost of repair had been found to exceed 60% of the present value of
the building. However, in the instant case, the demolition order
was entered pursuant to a statutory procedure in which the
enforcement official's discretion had not been restricted.
Plaintiffs' building was found to be unsafe and was condemned
pursuant to G.S. § 160A-426 by posting of two “Notices of Unsafe
Structure” on 25 March 1998. At that point, demolition of the
building was not required by the statute. Plaintiffs were given an
opportunity under the statute to take corrective action to remove
the threat to the public health, safety and welfare. Having failed
to take any corrective action for 27 days, the plaintiffs received
written notice of a hearing to be held to determine the future of
the building. This hearing was held on 4 May 1998, forty days
after plaintiffs received constructive notice of the unsafe and
dangerous condition of the property. Upon finding that the
building was in dangerous condition, Morgan (the Town's Code
Enforcement Official) was required to issue an order to either
repair, close, vacate, or demolish the building. Unlike the
Inspector in Horton, here Morgan had discretion whether to order
demolition of the building. Plaintiffs in the instant case were
given forty days -- from the posting of notice on 25 March 1998, to
the hearing before the Code Enforcement Official on 4 May 1998 --
to take steps toward repairing the building, in an attempt toinfluence the decision of the Code Enforcement Official. There is
no evidence plaintiffs contacted any contractors, electricians,
restoration experts, or other persons for the formulation of plans
to restore the building, nor sought the required permits to
undertake repairs to the building during this forty-day period.
Having failed to take any action for forty days in an attempt to
influence the discretionary decision of the Town's Code Enforcement
Official, plaintiffs cannot now claim that they were not given a
reasonable amount of time to bring the building up to standard.
Thus, we hold that plaintiffs were given a reasonable opportunity
to remove the threat to the public health, safety and welfare that
was created by their building. Consequently, plaintiffs' final
assignment of error is overruled.
In light of the foregoing, we conclude that the trial court
properly exercised de novo review in upholding the Board of
Alderman's demolition order. The trial court's order is affirmed.
Affirmed.
Judges WALKER and HUNTER concur.
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