Balent v. City of Wilkes-Barre

• Decision Date: 31 May 1985
• Docket Number: WILKES-BARR,A
• Parties: Joseph J. BALENT and George Barto, Appellants, v. CITY OFppellee.
• Court: Pennsylvania Commonwealth Court

Page 1196

492 A.2d 1196

89 Pa.Cmwlth. 578

Joseph J. BALENT and George Barto, Appellants, v. CITY OF WILKES-BARRE, Appellee.

Commonwealth Court of Pennsylvania.

Argued Dec. 10, 1984.

Decided May 31, 1985.

Mark A. Ciavarella, Jr., Lowery, Ciavarella & Rogers, Wilkes-Barre, for appellants.

Carl N. Frank, Wilkes-Barre, for appellee.

Before ROGERS and COLINS, JJ., and KALISH, Senior Judge.

COLINS, Judge.

Joseph Balent and George Barto (Appellants), appeal from the order of the Court of Common Pleas of Luzerne County, dismissing their Petition for the Appointment of a Board of Viewers.

Appellants were the owners of a building which was seriously damaged by fire and was demolished by the City of Wilkes-Barre (City) approximately twenty months after the fire. They contend that the demolition constituted a de facto taking and petitioned for a Board of Viewers to be appointed in order to assess damages. The Court sustained the preliminary objections of the City and dismissed the petition, finding that the City's demolition of the building was an exercise of the police power and, therefore, non-compensable, rather than an exercise of eminent domain.

The fire occurred on March 9, 1980, and the City notified Appellants on March 10, 1980 that they were to enclose the property and make whatever repairs were necessary to bring the building up to the Building Code standards by April 9, 1980. The letter also advised appellants that non-compliance could result in a fine or imprisonment, and that the order was appealable within ten days. The building was enclosed but other violations were not corrected. No appeal was filed and more than twenty months after the fire, the City had the building demolished.

After the demolition, appellants petitioned for the appointment of a Board of Viewers to determine the amount of compensation, and such was appointed in the Court of Common Pleas of Luzerne County. The City filed preliminary objections, alleging, in part, that the City was validly exercising its police power, not its power of eminent domain and thus the City was not required to compensate appellants. The lower court sustained the preliminary objection and the appellants bring this appeal, claiming that the demolition was an exercise of the City's power of eminent domain, not the police power, and that they should be compensated.

The power of eminent domain is distinguishable from the police power. The difference was clearly delineated in Redevelopment Authority of Oil City v. Woodring, 498 Pa. 180, 186, 445 A.2d 724, 727 (1982), where our Supreme Court declared that:

Police power involves the regulation of property to promote health, safety and general welfare and its exercise requires no compensation to the property owner, even if there is an actual taking or destruction of property, while eminent domain is the power to take property for public use, and compensation must be given for property taken, injured or destroyed. White's Appeal, 287 Pa. 259, 264, 134 A. 409 (1926).

This Court has also distinguished eminent domain from police power in Northeast Outdoor Advertising, Inc. Appeal, 69 Pa.Commonwealth 609, 612, 452 A.2d 83, 85 (1982) stating that:

Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use. Under eminent domain, compensation is given for property taken, injured or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property....

No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination of the right of its reasonable regulation by the government clearly necessary to preserve the health, safety, or morals of the people. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power. (Quoting Reilly v. Department of Environmental Resources, 37 Pa.Commonwealth 608, 611, 391 A.2d 56, 58 (1978)).

President Judge Bowman, in discussing the extent of this police power, noted that:

[O]ur courts have consistently held an otherwise valid exercise of the police power does not effectuate a constitutional taking of property for public use even though (a) its exercise resulted in the entire suppression of the business ...; (b) or at whatever cost to the party introducing the danger being proscribed ...; and (c) even when it forces the offending industry out of business....

Commonwealth v. Barnes & Tucker Co., 23 Pa.Commonwealth 496, 510, 353 A.2d 471, 479 (1976) (citations omitted), aff'd. 472 Pa. 115, 371 A.2d 461 (1977), appeal dismissed 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977).

The City's representative testified that the structure was removed because it had become dangerous to the public. No repairs had been made since the fire, and vandalism, rotting wood and wind damage had made the corner property a hazard. The boarding on the windows had been removed and the neighbors had complained about the condition of the building. This does not constitute a compensable taking because the City did not appropriate the property for a public use. The property was demolished under the City's police power ¹ and not under its power of eminent domain and no compensation is required.

The decision of the Court of Common Pleas of Luzerne County is affirmed.

ORDER

AND NOW, May 31, 1985, the order of the Court of Common Pleas of Luzerne County, No. 82-2167-C, dated August 2, 1983, is affirmed.

WILLIAMS, J., did not participate in the decision in this case.

KALISH, Senior Judge, dissenting.

Joseph J. Balent and George Barto, Appellants, appeal from the order of the Court of Common Pleas of Luzerne County dismissing their petition for the appointment of board of viewers. A building owned by the Appellants was damaged by fire and subsequently was demolished by the City of Wilkes-Barre (City).

Appellants contend that this demolition constituted a de facto taking and filed a petition for the appointment of viewers to assess damages. The City filed preliminary objections. Pursuant to the procedure in eminent domain cases, the trial court considered depositions, briefs and argument to determine whether in fact there was a taking compensable in damages.

The court sustained the preliminary objections and dismissed the petition, concluding that the action of the City in abating the nuisance by demolishing the building constituted a noncompensable exercise of the police power and was not one of compensable eminent domain.

The court did find that the building was structurally unstable and constituted a health and safety hazard and that, after notice from the inspector, Appellants boarded the building but did not make repairs; nor was there an appeal to the Board of Appeals pursuant to an appeal notice.

A local ordinance provides that whenever any building shall have been declared dangerous or unsafe by the building inspector's office, the building shall, unless made safe, be demolished. Wilkes-Barre, Pa., Code § 7-23, Ord. No. 32-76, § 1 (1976). While the Appellants have no quarrel with the ordinance permitting abatement of the nuisance, they contend that the City's action in demolition was an excessive, arbitrary and unreasonable use of the police power constituting a taking, compensable under the Fifth Amendment to the United States Constitution. U.S. CONST. amend. V.

Where a governmental agency, by some regulation in the exercise of its police powers or otherwise, engages in conduct which infringes on the beneficial use of a person's property resulting in a substantial diminution of its value, it triggers at once a constitutional question--the Fifth Amendment of the United States Constitution forbidding private property to be taken without just compensation and/or the Fourteenth Amendment forbidding a state to deprive a person of life, liberty or property without due process of law.

Although as to the property owner there is no qualitative difference in a Fifth Amendment context between an eminent domain taking and one by the exercise of the police power, the trial court articulated the conceptual difference and concluded that since this was an exercise of the police power it was noncompensable.

Indeed, in land use cases such as zoning and environmental regulations, and in de facto condemnation cases, our courts have recognized a need to preserve some degree of flexibility in planning and the tremendous financial burden and expense imposed on regulators.

Thus, in Pennsylvania, while the mere recording of redevelopment plans, plus negotiations, plus the purchase of other properties in the area may be insufficient to constitute a de facto taking, yet where it is accompanied by facts showing that the plaintiff cannot use his property or stands to lose his property or loses tenants to such an extent that the property no longer generates sufficient income to pay taxes, he is then deprived of his property and is entitled to Fifth Amendment compensation damages. Conroy-Prugh Glass Co. v. Department of Transportation, 456 Pa. 384, 321 A.2d 598 (1974).

Our courts have consistently held that an otherwise valid exercise of the police power does not effectuate a Fifth Amendment taking even though its exercise resulted in the entire suppression of the business or even forces the party out of business. Commonwealth v. Emmers, 221 Pa. 298, 70 A. 762 (1908); Bortz Coal Co. v. Air Pollution Commission, 2 Pa.Commonwealth 441, 279 A.2d 388 (1971).

In Reilly v. Department of Environmental Resources, 37 Pa.Commonwealth 608, 391 A.2d 56 (1978), a rezoning prohibited a tract of land from being developed for residential use. The court held that a zoning ordinance was an exercise of the police power and not the exercise...