City of Paterson v. Fargo Realty Inc.

• Decision Date: 25 April 1980
• Citation: 415 A.2d 1210,174 N.J.Super. 178
• Parties: CITY OF PATERSON, a Municipal Corporation of the State of New Jersey, Plaintiff, v. FARGO REALTY INC. and Rehab Realty, Inc., jointly, severally or, the alternative, Defendants.
• Court: New Jersey District Court

Page 178

174 N.J.Super. 178

415 A.2d 1210

CITY OF PATERSON, a Municipal Corporation of the State of New Jersey, Plaintiff, v. FARGO REALTY INC. and Rehab Realty, Inc., jointly, severally or, the alternative, Defendants.

District Court, Passaic County, New Jersey.

April 25, 1980.

Irwin H. Tessler, Paterson, for plaintiff (Henry Ramer, Paterson, attorney).

Theodore A. Lobsenz, Paterson, for defendants.

SAUNDERS, J. S. C. (temporarily assigned).

This case raises novel issues concerning a municipality's power to summarily abate a nuisance and to assess the cost thereof as a personal obligation of the property's owner under N.J.S.A. 40:48-1.1.

The facts of this case were stipulated as follows. On November 7, 1978 defendant Fargo Realty Inc. (Fargo) was the owner of property located at 125 North Third Street, Paterson, New Jersey. On that same day the house situated on those premises was heavily damaged by fire. On November 8, 1978 the property was conveyed by deed from Fargo to codefendant Rehab Realty, Inc. (Rehab). This conveyance was recorded in the office of the Register of Deeds and Mortgages of Passaic County on November 9, 1978.

On November 8, 1978 a Western Union Mailgram addressed to Fargo was delivered to its registered office located at 250 Van Houten Street, Paterson, New Jersey, at 12:45 p. m. This telegram informed Fargo that "(d)ue to dangerous and hazardous conditions that exist at 125 North Third Street Paterson New Jersey structure must be demolished within 48 hours of receipt of this order." Fargo failed to demolish the building and on December 4, 1978 the City of Paterson had the remains of the structure demolished at a cost of $1,625. On February 5, 1979 a demolition lien was placed on the property by the city in the amount of $1,625. The parties agree that the value of the property immediately before and after the demolition was less than the amount of the demolition lien and assessment. The 1978 land assessment was $1,200.

On April 12, 1979 the city filed suit pursuant to N.J.S.A. 40:48-1.1 seeking to obtain a personal judgment against both defendants for the entire cost of the demolition. The case is now before the court on cross-motions for summary judgment.

Several issues were raised by defendants, but subsequent to oral argument they advised the court that they were waiving all defenses and proceeding only on the following issues:

I. Does N.J.S.A. 40:48-1.1 permit an unconstitutional taking of property without adequate compensation in violation of U.S.Const., Amend. V and N.J.Const. (1947), Art. I, par. 20?

II. Is the assessment and demolition lien analogous to the levy of a special assessment and therefore limited to the enhancement value to the land?

III. Which defendant (if either) is personally liable for the cost of the demolition?

As required by R. 4:28-4(a), the Attorney General of New Jersey has been given notice of the action and the constitutional issue raised, but has not intervened.

Every citizen holds his property subject to the proper exercise of the police power, either by the Legislature directly or by municipal corporations to which the Legislature has delegated such power. State v. Mundet Cork Corp., 8 N.J. 359, 371, 86 A.2d 1 (1952), cert. den. 344 U.S. 819, 73 S.Ct. 14, 97 L.Ed. 637 (1952). A municipality may, in the exercise of its police power, without compensation destroy a building or structure that is a menace to the public safety or welfare, or require the owner to demolish the dangerous piece of property. Rosenberg v. Sheen, 77 N.J.Eq. 476, 77 A. 1019 (Ch.1910); 7 McQuillin, Municipal Corporations (3 ed. 1968) § 24.561 at 591. Moreover, it has been suggested that under such circumstances the municipality not only acts clearly within its police power, but also fulfills its duty to act in the interest of the health and safety of its inhabitants. Springfield v. Little Rock, 226 Ark. 462, 290 S.W.2d 620 (Sup.Ct.1956).

The right of summary action in the abatement of public nuisances exists at common law under the police power. Vanderhoven v. Rahway, 120 N.J.L. 610, 612, 1 A.2d 303 (Sup.Ct.1938); Lawton v. Steele, 152 U.S. 133, 136-137, 14 S.Ct. 499, 38 L.Ed. 385 (1894); 6 McQuillin, supra, § 24.71 at 625-626. "But the right to summarily abate a nuisance is not without limitations. The right is based upon necessity and the necessity must be present to justify its exercise." (Citations omitted). Ajamian v. North Bergen Tp., 103 N.J.Super. 61, 80, 246 A.2d 521, 532 (Law.Div.1968), aff'd o. b., 107 N.J.Super. 175, 257 A.2d 726 (App.Div.1969), cert. den. 398 U.S. 952, 90 S.Ct. 1873, 26 L.Ed.2d 292 (1970). In Ajamian the Law Division held that where there was an immediate danger to health or safety, township officials could rely on the police power to summarily vacate a building and need not compensate the owner. Id. at 81, 246 A.2d 521. Accord, Leppo v. Petaluma, 20 Cal.App.3d 711, 97 Cal.Rptr. 840, 843 (D.Ct.App.1971), stating that in emergency situations the city can dispense with a due process hearing and demolish a building summarily.

N.J.S.A. 40:48-1(15) authorizes a municipality to make and enforce ordinances to provide for the removal of any building or structure which is or may become dangerous to life or health. Pursuant to this statutory grant the City of Paterson enacted sections 5:2-29 through 38, inclusive, of the Revised Ordinances of Paterson (R.O.P.). The city, in demolishing the premises at 125 North Third Street, Paterson, relied on R.O.P. 5:2-35. That section provides:

. . . buildings, walls or other structures which shall be unsafe so as to be a danger to life and limb shall immediately upon notice from the chief building inspector be made safe and secure or taken down, and when the public safety requires immediate action, the chief building inspector may forthwith enter upon the premises with such assistance as may be necessary and cause such structure to be made secure or taken down at the expense of the owner or party in interest.

The demolition cost of $1,625 was filed as a municipal lien with the city tax assessor. R.O.P. 5:2-34. The city then brought the pending action against defendants, alleging their personal liability for the demolition costs. N.J.S.A. 40:48-1.1 adopted in 1978 provides:

Whenever any municipality, pursuant to law or pursuant to any ordinance, rule or regulation adopted pursuant to law, undertakes the removal or demolition of any building or structure which is dangerous to human life or the public welfare or which constitutes a fire hazard, the governing body of the municipality, in addition to assessing the cost of such removal or demolition as a municipal lien against the premises, may enforce the payment of such assessment, together with interest, as a debt of the owner of the premises and may authorize the institution of an action at law for the collection thereof. The superior court, a county court, or a county district court shall have jurisdiction of any such action.

Defendants argue that the assessment of the demolition cost as a personal obligation of the property owner under N.J.S.A. 40:48-1.1 amounts to an unconstitutional taking of property without adequate compensation. In support of this argument defendants contend that the statute allows a municipality to take personal assets from the property owner through a demolition lien which exceed the value of the property. Specifically, defendants point to the value of the property at 125 North Third Street immediately before and after the demolition which has been stipulated to be less than the amount of the demolition lien. Defendants conclude that a statute cannot constitutionally impose personal liability on the owner because the property is worth less than the cost of the demolition.

The city argues that the statute was enacted to meet a recognized evil inflicted upon municipalities in urban areas, i. e., the cost and burden of demolishing structures which have become dangerous to human life and the public welfare as a result of fire, neglect or vandalism.

N.J.S.A. 40:48-1.1 was clearly implemented to assist a municipality in recovering the cost of demolition necessitated by the imminent threat of harm to human life. The statute permits a municipality to recover such costs not only through the imposition of a lien on the property, but also through an action at law as a personal debt of the property owner. See Statement to the original bill, L.1978, c. 113.

The issue raised by defendants questions whether there are any constitutional limitations as to the amounts a municipality may recover to defray the costs of demolition performed in order to protect the public health and safety.

It has long been recognized that a right to reimbursement will accrue to a municipality for its expenses in rightfully demolishing a building constituting a public nuisance. 7 McQuillin, supra, § 24.561 at 596; 6 McQuillin, supra, § 24.79 at 638-639. Also, Brown v. Tobriner, 312 F.2d 334 (D.C.Cir. 1962); Buffalo v. Dankner, 48 App.Div.2d 572, 370 N.Y.S.2d 266 (App.Div.1975), app. on const'l grounds dism., 38 N.Y.2d 826, 345 N.E.2d 607, 382 N.Y.S.2d 1033 (Ct.App.1975); Oosterwyk v. Milwaukee, 7 Wis.2d 160, 96 N.W.2d 372 (Sup.Ct.1959); Nashville v. Weakley, 170 Tenn. 278, 95 S.W.2d 37 (Sup.Ct.1936); Bond v. Moss Point, 240 So.2d 270 (Miss.Sup.Ct.1970); Chicago v. Nielsen, 38 Ill.App.3d 941, 349 N.E.2d 532 (App.Ct.1976); Mason v. Buchman, 49 Mich.App. 98, 211 N.W.2d 552 (Ct.App.1973); Eno v. Burlington, 125 Vt. 8, 209 A.2d 499 (Sup.Ct.1965); Lacy v. Des Moines, 253 Iowa 621, 113 N.W.2d 279 (Sup.Ct.1962); Annotation, "Validity and construction of statute or ordinance providing for repair or destruction of residential building by public authorities at owner's expense," 43 A.L.R.3d 916 (1972).

In Brown v. Tobriner, supra, the Court of Appeals held that the District of Columbia was entitled to reimbursement from the landowners for all expenses incurred in...