Eno v. City of Burlington, 337
| Decision Date | 06 April 1965 |
| Docket Number | No. 337,337 |
| Citation | 125 Vt. 8,209 A.2d 499 |
| Parties | Audsley ENO and Irene M. Eno v. CITY OF BURLINGTON and Raymond A. Wheel, Building Inspector. |
| Court | Vermont Supreme Court |
George L. Agel, Burlington, for plaintiffs.
L. John Cain, Burlington, and Gilbert F. Myers, Poultney, of counsel, for defendants.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This is a petition in Chancery for a permanent injunction to restrain the City of Burlington and its building inspector from destroying or removing a dwelling house owned by the plaintiffs in the defendant city, the building having been condemned under authority of specific ordinances. An agreed statement of facts was filed by the parties on consideration of which the chancellor granted a permanent injunction. The case is here on appeal by the defendants from the decree of the chancellor. The ordinances involved relate to unsafe buildings being Sections 741-746 of Title 5, Chapter 1, Subchapter 3 of the defendant city's Revised Ordinances of 1962.
Three basic questions are presented by this appeal. (1) Is there an invalid exercise of police power arising from the delegation of authority to the building inspector? (2) Did the hearing before the board of aldermen afford plaintiffs due process? (3) Are the ordinances, Sections 741-746, invalid for lack of a provision for a judicial review of the condemnation action taken?
The ordinances in question are not a part of the record so the court cannot take judicial notice of them. State v. Pelletier, 123 Vt. 271, 272, 185 A.2d 456. However, we are permitted to do so by agreement of the parties made at the time of argument, a copy of the city's 'Revised Ordinances of 1962' being handed to the court for that purpose.
The essential facts as shown by the agreed statement follow. The plaintiffs own a dwelling house at 24 Convent Square in defendant city. On March 17, 1964, the defendant building inspector gave notice to plaintiffs, that upon his inspection, plaintiffs' building was determined to be unsafe and dangerous because of fire and health hazards and unfit for human occupancy; that plaintiffs were directed to commence to secure or remove the structure by the day following. On March 19, 1964, plaintiffs' attorney wrote the inspector asking him to specify in what respect the building was unsafe and dangerous because of fire hazards. This was answered March 23rd stating it was the dilapidated, unsafe, unstable and unsanitary condition of the property and that he had requested a survey to be made by the survey board. On March 27, 1964, the appointed survey board, consisting of the city engineer, fire chief and a Mr. Gibbons as a citizen, each made his report to the building inspector with a copy served on the owners.
The survey report of the city engineer states the condition of the house as he found it, thus:
'Upon entering the building, I found the floors in just about every room to be sagging and what I consider in extremely poor condition. I confirmed this fact by examining the underside of the floors from the basement. Boards in the floor show considerable evidence of being decayed. In some places, the plaster in the ceilings and walls has separated from the lath to the extent where it could fall off and cause injury to the children that occupy the house.
'Some of the plumbing in the house was loose from the wall, but probably did not create any hazardous condition. A so-called 'side-arm' gas-type watertank heater was not properly vented and could become a great hazard if put in use.
'I recommend that the house be demolished.'
The chief of the fire department reported that there was a 'real fire hazard' and that the building 'should be torn down or put back in good condition'. The report of the citizen member of the survey board spelled out in detail the unsafe and dangerous condition of the building occupied by a family of six and stated the building was a 'real fire hazard.'
The plaintiffs appealed the order of the building inspector and the report of the survey board by petition to the board of aldermen. Plaintiffs stated therein that certain changes had already been made and requested that they be permitted to do other work; also that the building be allowed to remain. The board held hearings on April 13 and 17, 1964. The plaintiffs were present with their attorney and Mr. Gay, a builder, as a witness. At the hearing the building inspector read the reports of the survey board. The city engineer, a member of the board, was present but did not testify. Plaintiffs' evidence was to the effect that certain repairs had been done and total repairs would run about $300.00. The board voted to approve the action of the building inspector and directed him to proceed to demolish or remove the house in question.
At the hearing, Dr. Farmer, one member of the board, after a statement to the board by the building inspector and before testimony was given, made a motion that the building inspector proceed at once with his order. Plaintiffs' attorney objected to this member sitting on the board on the ground that he was biased, having already made up his mind. The member did not remove himself and the hearing then proceeded to its finality.
The charter of the City of Burlington was revised by No. 298, Acts of 1949, of the legislature. The act delegated various powers to the city council, among which are the following:
The City of Burlington approved a revision of its ordinances effective November 14, 1962. Sections 741-746 inclusive of Title 5, Chapter 1 of such ordinances relating to unsafe buildings, prescribe the authority under which the building inspector conducted the condemnation proceeding enjoined here. No question is raised that the ordinances here. No question is the police power authorized by legislative act and legally enacted by the city. Under such circumstances, they have the force of state law. Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A. 650.
Plaintiffs first urge that these ordinances are void because there is an unlawful delegation of authority to the building inspector. This contention is predicated upon the claim that the ordinance does not set up standards on which the inspector can evaluate whether a building should be condemned and removed.
The building inspector is an officer appointed by the city council. Charter, sec. 121. He is 'authorized and empowered to enforce all ordinances relating to the construction, equipment, management and condition of all buildings and structures in the city * * *.' Ord. sec. 702. It is assumed, the contrary not appearing, that the building inspector is a competent person with practical experience in the construction of brick and wooden buildings as required by 24 V.S.A. § 3102.
The ordinances complained of are Sections 742-746, Title 5, Chapter 1, subchapter 3 reading as follows:
'A person notified as provided in section 742 shall before twelve o'clock noon of the day following the service of such notice, commence to secure or remove such structure and shall employ sufficient workmen speedily to secure or remove it; and if the public safety so requires, and if the mayor and aldermen so order, said inspector shall immediately enter upon the premises with the necessary workmen and cause said structure to be shored up, taken down, or otherwise secured without delay, and a proper fence or boarding put up for the protection of the passers-by.'
'If such report declares such structure to be unsafe, and if the owner, agent, or person interested continues such refusal or neglect the inspector shall...
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