A-S-P Associates v. City of Raleigh

• Court: North Carolina Supreme Court
• Writing for the Court: BROCK; CARLTON
• Citation: A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (N.C. 1979)
• Decision Date: 03 October 1979
• Docket Number: No. 103,A-S-P,103
• Parties: ASSOCIATES v. CITY OF RALEIGH.

Page 444

258 S.E.2d 444

298 N.C. 207

A-S-P ASSOCIATES v. CITY OF RALEIGH.

No. 103.

Supreme Court of North Carolina.

Oct. 3, 1979.

Allen, Steed & Allen by Arch T. Allen, III, and Noah H. Huffstetler, III, Raleigh, for plaintiff.

Thomas A. McCormick, City Atty. by Ira J. Botvinick, Associate City Atty., Raleigh, for defendant.

BROCK, Justice.

Associates' appeal to the Court of Appeals assigned error to the grant of summary judgment in favor of defendant City. Summary judgment may, when appropriate, be rendered against the party moving for such judgment. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Bland v. Bland, 21 N.C.App. 192, 203 S.E.2d 639 (1974). Summary judgment in favor of the non-movant is appropriate when the evidence presented demonstrates that no material issues of fact are in dispute, and the non-movant is entitled to entry of judgment as a matter of law.

Associates argue in their brief that their motion for summary judgment was limited to their claims of constitutional invalidity of the Oakwood Ordinance. They argue that it was, therefore, error for the superior court to grant summary judgment in favor of defendant City on all claims raised in Associates' complaint.

It is apparent from the record, however, that both plaintiff and defendant were afforded adequate opportunity to and did submit evidentiary materials on all aspects of the case. The evidentiary materials submitted show, furthermore, that both Associates' constitutional and their statutory challenges to the validity of the Oakwood Ordinance raise only questions of law. Summary judgment for the non-moving party should be granted only when the moving party has been given adequate opportunity to show in opposition that there is a genuine issue of fact to be resolved. 10 Wright & Miller, Federal Practice and Procedure, § 2720, p. 471 (1973). Associates were afforded that opportunity in this instance and the entry of summary judgment in favor of defendant City on all claims was proper.

The Court of Appeals found that material issues of fact existed with respect to two claims in Associates' complaint. Associates' contention that substantial questions of fact existed with respect to other claims was not considered. Because we reverse the decision of the Court of Appeals on the two issues considered determinative by it, we must consider all issues raised.

Associates' first contentions are that the Oakwood Ordinance deprives them of their property without due process of law in contravention of the Fourteenth Amendment to the United States Constitution, and that it deprives them of their property otherwise than by the law of the land in contravention of Article I, Section 19, of the North Carolina Constitution. The terms "law of the land" and "due process of law" are synonymous. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970); State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949).

Associates' claim is premised on a line of cases in which this Court has indicated that a statute or ordinance based purely on aesthetic considerations, without any real or substantial relation to the public health, safety or morals, or the general welfare, deprives individuals of due process of law. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972); Little Pep Delmonico Restaurant, Inc. v. Charlotte, 252 N.C. 324, 113 S.E.2d 422 (1960); State v. Brown, 250 N.C. 54, 108 S.E.2d 74 (1959); In Re O'Neal, 243 N.C. 714, 92 S.E.2d 189 (1956); State v. Staples, 157 N.C. 637, 73 S.E. 112 (1911); Barger v. Smith, 156 N.C. 323, 72 S.E. 376 (1911); State v. Whitlock, 149 N.C. 542, 63 S.E. 123 (1908). Associates contend that the Oakwood Ordinance falls within the scope of such impermissible exercise of the police power because it focuses entirely on the exterior appearance of structures within the Historic District. Associates further contend that even if the Ordinance is a valid exercise of the police power insofar as it is applied to historic structures, it is invalid when applied to new construction on property such as Associates' vacant lot.

The police power is inherent in the sovereignty of the State. Winston-Salem v. Southern R.R. Co., 248 N.C. 637, 105 S.E.2d 37 (1958). It is as extensive as may be required for the protection of the public health, safety, morals and general welfare. State v. Hales, 256 N.C. 27, 122 S.E.2d 768 (1961); State v. Warren, 252 N.C. 690, 114 S.E.2d 660 (1960). The police power may be delegated by the State to its municipalities whenever deemed necessary by the Legislature. Raleigh v. Norfolk Southern R.R. Co., 275 N.C. 454, 168 S.E.2d 389 (1969).

Several principles must be borne in mind when considering a due process challenge to governmental regulation of private property on grounds that it is an invalid exercise of the police power. First, is the object of the legislation within the scope of the police power? Second, considering all the surrounding circumstances and particular facts of the case is the means by which the governmental entity has chosen to regulate reasonable? G.I. Surplus Store v. Hunter, 257 N.C. 206, 125 S.E.2d 764 (1962); State v. Brown, 250 N.C. 54, 108 S.E.2d 74 (1959); Winston-Salem v. Southern R.R. Co., 248 N.C. 637, 105 S.E.2d 37 (1958). This second inquiry is two-pronged: (1) Is the statute in its application reasonably necessary to promote the accomplishment of a public good and (2) is the interference with the owner's right to use his property as he deems appropriate reasonable in degree?

Moreover, in reviewing acts of the Legislature this Court must not lose sight of the fact that "(s)ince the police power of the State has not been, and by its nature cannot be, placed within fixed definitive limits, it may be extended or restricted to meet changing conditions, economic as well as social." Winston-Salem v. Southern R.R. Co., supra, at 642-43, 105 S.E.2d at 41. Also, "(w)hen the most that can be said against (an ordinance) is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere. In such circumstances the settled rule seems to be that the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals or general welfare." In Re Appeal of Parker, 214 N.C. 51, 197 S.E. 706 (1938). Euclid v. Ambler Realty, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).

Legislative exercise of the police power to regulate private property in the interest of historic preservation has met with increasing acceptance by the courts of other jurisdictions. E. g., Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975); Bohannan v. City of San Diego, 30 Cal.App.3d 416, 106 Cal.Rptr. 333 (1973); Figarsky v. Historic District Comm., 171 Conn. 198, 368 A.2d 163 (1976); Rebman v. City of Springfield, 111 Ill.App.2d 430, 250 N.E.2d 282 (1969); City of New Orleans v. Levy, 223 La. 14, 64 So.2d 798 (1953); Opinion of the Justices, 333 Mass. 773, 128 N.E.2d 557 (1955); Opinion of the Justices, 333 Mass. 783, 128 N.E.2d 563 (1955); and City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964). See Comment, Historic Preservation Cases: A Collection, 12 Wake Forest L.Rev. 227 (1976). Historic district legislation similar to the provisions of G.S. §§ 160A-395 through 399 has now been enacted by at least thirty-nine states. Beckwith, Developments in the Law of Historic Preservation and a Reflection on Liberty, 12 Wake Forest L.Rev. 93, 95 n. 18 (1976); Wilson and Winkler, The Response of State Legislation to Historic Preservation, 36 Law and Contemp. Prob., 329 (1971). More than 500 cities and towns have passed local landmark or historic district ordinances. National Trust for Historic Preservation, Historic Preservation and the Law, Part IV, ch. 5, p. 3 (1978).

In Maher v. City of New Orleans, supra, plaintiff challenged an ordinance that regulates the preservation and maintenance of buildings in the historic Vieux Carree section of that City. In rejecting plaintiff's contention that the architectural controls imposed by the ordinance were not within the parameters of police power regulation, the Court observed: "(p)roper state purposes may encompass not only the goal of abating undesirable conditions, but of fostering ends the community deems worthy. . . . Nor need the values advanced be solely economic or directed at health and safety in their narrowest senses. The police power inhering in the lawmaker is more generous, comprehending more subtle and ephemeral societal interests." Id. at 1060.

The United States Supreme Court has also recognized the expansive scope of the states' police power. In Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954) it was observed, albeit in the context of an exercise of power of eminent domain, that "the concept of the public welfare is broad and inclusive. (Citation omitted.) The values it represents are spiritual as well as physical aesthetic as well as monetary." In the recent case of Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct 2646, 57 L.Ed.2d 631 (1978), applying the concept of the public welfare found in Berman, the Court upheld comprehensive governmental regulation of private property designed to preserve historic buildings in the City of New York.

In State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972), we took note of the growing body of authority in other jurisdictions recognizing that the police power may be broad enough to include reasonable regulation of property for aesthetic reasons alone. Although we are not now prepared to endorse such a broad concept of the scope of the police power, we find no difficulty in holding that the police power encompasses the right to control the exterior appearance of private property when the object of such control is the preservation of the State's...