BEULAH MONROE,
Plaintiff
v
.
CITY OF NEW BERN, NORTH CAROLINA,
Defendant
Ralph T. Bryant, Jr., P.A., by Ralph T. Bryant, Jr., for
plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by Gregory Wenzl Brown and
Katherine Hilkey-Boyatt, for defendant-appellee.
HUNTER, Judge.
Beulah Monroe (“plaintiff”) appeals from the trial court's
entry of summary judgment in favor of defendant, City of New Bern,
North Carolina (“the City”), and denial of plaintiff's motion for
summary judgment. For the reasons stated herein, we reverse the
trial court's summary judgment entered in favor of the City and
remand for entry of summary judgment in favor of plaintiff. We
additionally remand this case for a trial to be held on the issue
of damages.
This action arises from the City's demolition of plaintiff's
house located on 212 Bryan Street, next to a daycare, in New Bern,
North Carolina. According to plaintiff and John Clark (“Clark”),
Chief Building Inspector for the City, plaintiff was given nonotice nor an opportunity to be heard prior to demolition, which
occurred on 6 and 7 April 2000. A lien for the cost of demolition
in the amount of $6,033.75 was placed on plaintiff's property. The
tax value on this house was $43,850.00. At the time of demolition,
plaintiff's house was boarded up and had been since March of 1997.
The condition of plaintiff's house was described in deposition
testimony submitted to the court. The roof of the house had
severely deteriorated to the point of partially caving in and there
was heavy water infiltration throughout the structure. The plaster
or the sheet rock had come off the ceiling of the second floor, and
the floors were completely littered. In addition, the brick veneer
on the exterior of the house had severe cracks in several
locations. The windows were broken out and some of the ceiling
joists had rotted from water infiltration over the years. Dead
rats were observed in the bathtub. The paint on the walls was
cracked. The inspectors were unable to go upstairs due to caved in
portions of the house. Christopher Holmes (“Holmes”), a civil
engineer acting as an expert for plaintiff, had reviewed pictures
and a video of plaintiff's house and opined in a deposition that
for the house to have been saved, it would have had to have been
gutted down to the frame and the roof and flooring would have had
to have been completely replaced. David Lavigne, a real estate
appraiser, testified in a deposition that plaintiff's house was
worthless and that the “highest and best use” demanded demolition.
Holmes testified that the house was not structurally sound and
that it presented a danger to anyone who wandered into the house. When asked whether he thought the house was a danger to the public
in its boarded up state, Holmes responded that it could be since
vagrants might still find a way into the house. When asked whether
he thought the house was a danger to the public if it was boarded
up and no one was inside, he stated that besides the possibility
that animals could get into the house and breed, the house did not
present a threat to the safety of the public. Holmes further
stated that he did not think there was a danger of the house
collapsing onto a passerby.
Plaintiff filed a complaint on 21 July 2000, alleging that the
demolition of her house constituted an unconstitutional taking of
her property without just compensation under the North Carolina
Constitution, the destruction violated her due process rights under
the North Carolina Constitution, the application of the City's
ordinance violated her equal protection rights under the North
Carolina Constitution, and the City's actions constituted an unfair
and deceptive trade practice. The City filed an answer to this
complaint on 25 September 2000, denying liability for the
demolition of plaintiff's house and later filed an amended answer
on 3 April 2001, including a counterclaim seeking recovery for the
costs and expenses associated with the demolition of plaintiff's
property. Both the City and plaintiff filed motions for summary
judgment. Subsequently, plaintiff filed an amended complaint which
included a trespass claim. At the summary judgment hearing,
plaintiff stipulated that she was voluntarily dismissing all claims
except her due process claim under the North Carolina Constitutionand her common law trespass claim under North Carolina law. After
hearing oral arguments from both sides and considering the evidence
submitted, the trial court granted the City's motion for summary
judgment, denied plaintiff's motion for summary judgment, and
dismissed plaintiff's claims with prejudice. Plaintiff appeals.
Plaintiff contends the trial court erred in granting the
City's motion for summary judgment and denying her motion for
summary judgment. Plaintiff asserts that defendant is liable as a
matter of law for the demolition of her house since the City failed
to give her any of the notices or procedures required by the New
Bern City Ordinance, the North Carolina General Statutes, and the
North Carolina Constitution prior to demolition. On the contrary,
the City argues the trial court properly granted its motion for
summary judgment and properly denied plaintiff's motion for summary
judgment because it had the authority to summarily demolish
plaintiff's house pursuant to N.C. Gen. Stat. § 160A-193 (2001),
entitled “[a]batement of public health nuisances.”
At the outset, summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-
1, Rule 56(c) (2001). In ruling on a summary judgment motion, the
court “must view all evidence in the light most favorable to the
non-movant, taking the non-movant's asserted facts as true, and
drawing all reasonable inferences in her favor.” Glenn-Robinson v.Acker, 140 N.C. App. 606, 611, 538 S.E.2d 601, 607 (2000), appeal
dismissed and disc. review denied, 353 N.C. 372, 547 S.E.2d 811
(2001).
N.C. Gen. Stat. § 160A-193, the statute the City asserts
afforded it the authority to summarily demolish plaintiff's house,
provides: “A city shall have authority to summarily remove, abate,
or remedy everything in the city limits, or within one mile
thereof, that is dangerous or prejudicial to the public health or
public safety.” N.C. Gen. Stat. § 160A-193(a). Neither party has
provided us with, nor have we found, any North Carolina cases in
which a city has summarily demolished a building without providing
notice or a hearing to the owner. Therefore, we have no precedent
establishing circumstances when a building may summarily be
destroyed. “In matters of statutory construction, our primary task
is to ensure that the purpose of the legislature, the legislative
intent, is accomplished.” Electric Supply Co. v. Swain Electrical
Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). To reach that
end, we must consider “the language of the statute . . . , the
spirit of the act and what the act seeks to accomplish.” Concrete
Co. v. Board of Commissioners, 299 N.C. 620, 629, 265 S.E.2d 379,
385 (1980). Moreover, “where a statute is susceptible to two
interpretations -- one constitutional and one unconstitutional --
the Court should adopt the interpretation resulting in a finding of
constitutionality.” In re Banks, 295 N.C. 236, 239, 244 S.E.2d
386, 388 (1978). Applying these canons of statutory construction, we interpret
Section 160A-193 as providing a city with the authority to
summarily demolish a building only if the building constitutes an
imminent danger to the public health or safety, creating an
emergency necessitating the building's immediate demolition. We
construe Section 160A-193 narrowly in accordance with legislative
intent. Our General Assembly has provided notice and hearing
requirements in N.C. Gen. Stat. §§ 160A-441 through 160A-450 (2001)
that a city must follow in demolishing a person's dwelling in a
non-emergency. Section 160A-193 only applies to a situation where
a structurally unsafe building poses an imminent danger to the
safety of the public such that the owner could not be provided
notice and a hearing without endangering the public. Cities may
not summarily demolish dwellings pursuant to Section 160A-193
merely because it is quicker and easier than providing the owners
notice and an opportunity to be heard. Our interpretation of
Section 160A-193 is in accordance with the general rule that “a
municipality must, before destroying a building, give an owner
sufficient notice, a hearing and ample opportunity to demolish the
building or to do what suffices to make it safe or healthy for use
and occupancy,” as required by due process of law. 7A Eugene
McQuillin, The Law of Municipal Corporations, § 24.561, at 183 (3d
ed. 1998) (footnotes omitted). “[V]ested rights in a building
cannot be destroyed summarily as a nuisance unless in a great
emergency.” Id. at 185. See also Leppo v. City of Petaluma, 97
Cal. Rptr. 840, 843 (Cal. Ct. App. 1971) (citation omitted)(stating that “[i]n an emergency situation involving the physical
safety of the populace, the city could dispense with a due process
hearing and demolish a building summarily”); Rowland v. State, 176
So. 545, 546-47 (Fla. 1937) (noting that “[b]efore private property
may be condemned and destroyed in the exercise of police power,
except in cases of emergency, there must be an opportunity for the
owner or occupant to be heard”). Accordingly, we hold that
pursuant to Section 160A-193, a city may only demolish a building
without providing notice or a hearing to the owner if the building
constitutes an imminent danger to the public health or safety
necessitating its immediate demolition. For instance, a city would
have the authority to summarily demolish a building pursuant to
Section 160A-193 if the building were in such a ruinous state that
it was on the verge of falling onto a sidewalk frequented by
pedestrians or in a situation where the destruction of the building
is necessary to stop or control a large destructive fire.
If a city wishes to destroy a dwelling that does not pose an
imminent threat to the public, then the city must follow the
procedures required by N.C. Gen. Stat. §§ 160A-441 through 160A-
450.
N.C. Gen. Stat. § 160A-441 confers upon
cities and counties the power to exercise
their police powers by adopting and enforcing
ordinances ordering a property owner to
repair, close, or demolish dwellings that are
determined to be unfit for human habitation
and therefore dangerous and injurious to the
health and safety of the public.
Newton v. City of Winston-Salem, 92 N.C. App. 446, 449, 374 S.E.2d
488, 490 (1988). The enabling legislation provides that anordinance adopted by a city to regulate buildings unfit for human
habitation must contain certain procedures that the city must
follow prior to demolition of a dwelling including providing the
owner with notice, a hearing, and a reasonable opportunity to bring
his or her dwelling into conformity with the housing code. N.C.
Gen. Stat. § 160A-443. In the case sub judice, the City had
adopted an ordinance pursuant to Sections 160A-441 through 160A-
150, setting out the necessary procedures for the City to follow in
its demolition of a dwelling.
It is undisputed in this case that the City did not follow the
procedural requirements under Sections 160A-441 through 160A-450,
but instead, demolished plaintiff's house pursuant to Section 160A-
193, without providing plaintiff notice or a hearing. Therefore,
the dispositive issue in this case is whether plaintiff's house
posed an imminent danger to the health or safety of the public
requiring its immediate demolition under Section 160A-193, or
whether the house was not an imminent threat to the public thus,
entitling the owner to the notice and hearing requirements mandated
under Sections 160A-441 through 160A-450. We conclude the record
does not establish that the condition of plaintiff's house posed an
imminent danger to the health or safety of the public and
therefore, the City did not have authority under Section 160A-193
to summarily demolish the house. There is no evidence that an
emergency existed to warrant immediate destruction. Plaintiff's
house was boarded up in March of 1997 after the City sent plaintiff
a notice that it wished to board up the house so that people couldnot get inside. Therefore, the City was well aware of the decaying
state of plaintiff's house and the danger it posed to anyone
occupying the home several years prior to demolition. The building
inspectors who went to investigate the condition of the house prior
to demolition had to remove a panel off the front door in order to
enter the house. Further, according to Holmes, a civil engineer,
the house would be dangerous to anyone who occupied it but that it
was unlikely the house was going to fall onto a passerby. Holmes
indicated that the house was not a threat to the public while
boarded up with no one inside. Moreover, there was no evidence
that anyone, including vagrants, were living in the dwelling.
While there was evidence that plaintiff's house was in severe
disrepair, we do not conclude that its condition posed an imminent
threat to the public, warranting its immediate demolition. We
acknowledge that there was testimony that members of the public
could have possibly found a way into the home by either taking some
boards down or climbing into a window that was not completely
boarded up. However, we conclude this danger is not the kind of
imminent danger to the public contemplated by Section 160A-193.
Since it is undisputed that the City did not comply with the
procedural requirements of N.C. Gen. Stat. §§ 160A-441 through
160A-450, the City is liable in damages to plaintiff, as a matter
of law, for demolishing plaintiff's house. See Newton, 92 N.C.
App. 446, 374 S.E.2d 488. Accordingly, we reverse the trial
court's summary judgment entered in favor of the City and remandfor entry of summary judgment in favor of plaintiff. We further
remand this case for a trial on the issue of damages.
Reversed and remanded.
Judges BRYANT and ELMORE concur.
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