Velishka v. City of Nashua

• Decision Date: 01 July 1954
• Citation: 99 N.H. 161,106 A.2d 571
• Parties: , 44 A.L.R.2d 1406 VELISHKA et al. v. CITY OF NASHUA et al.
• Court: New Hampshire Supreme Court

Page 571

106 A.2d 571

99 N.H. 161, 44 A.L.R.2d 1406

VELISHKA et al. v. CITY OF NASHUA et al.

Supreme Court of New Hampshire.

Argued June 2, 1954.

Decided July 1, 1954.

Aaron A. Harkaway and Leonard D. Velishka, Nashua, for plaintiffs.

Norman R. Pelletier, Nashua, for the City of Nashua.

Antoine A. Guertin, Nashua, and Joseph M. Corwin, Nashua, for Nashua Housing Authority.

KENISON, Chief Justice.

One of the primary purposes and powers of any housing authority under R.L. c. 169 as amended, in effecting a redevelopment project is to acquire 'blighted areas.' Laws 1947, c. 210, § 2. These are defined in section 2(1) 'as areas (including slum areas) with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community'. The plaintiffs do not challenge the law creating Housing Authorities, R.L. c. 169, as amended, nor statutes which provide for low-rent housing and slum clearance, Laws 1947, c. 286, in view of In re Opinion of the Justices, 94 N.H. 515, 53 A.2d 194 and Leary v. Manchester, 91 N.H. 442, 446, 21 A.2d 156. The attack is directed solely at certain features of the Urban Redevelopment Law, c. 210, supra, which are alleged to be unconstitutional.

Formerly attempts to prevent the spread of slums and blighted areas were indirect and prospective in operation. They took the form of minimum building regulations and the adoption of comprehensive zoning ordinances. Sundeen v. Rogers, 83 N.H. 253, 141 A. 142, 57 A.L.R. 950. This was followed by statutes providing for the elimination of slums and their replacement by public housing areas. R.L. c. 169, as amended. The validity of these methods has been quite uniformly sustained. Annotations, 130 A.L.R. 1069; 172 A.L.R. 966. The participation of the Federal Government in housing projects by aiding states and municipalities was held in one didactic sentence to be clearly within the power of Congress to provide for the general welfare. City of Cleveland v. United States, 323 U.S. 329, 333, 65 S.Ct. 280, 89 L.Ed. 274. It soon became apparent that the elimination of a slum accomplished little if the area in which it was located was no longer suitable for housing. Then followed Title I of the Housing Act of 1949, 42 U.S.C.A. § 1441 et seq., which allowed grants and loans to municipalities to eliminate slum and blighted areas under redevelopment laws like Laws 1947, c. 210. See Schneider v. District of Columbia, D.C., 117 F.Supp. 705.

In a recent case decided March 30, 1954, Gohld Realty Co. v. City of Hartford, 141 Conn. 135, 104 A.2d 365, 372, it was noted that redevelopment laws, similar to the statute challenged here, have been enacted in thirty-four states, the District of Columbia and four territories. In sustaining the Connecticut law that court made the following summary: 'We find support for the conclusions we have reached in the overwhelming weight of the authorities in other jurisdictions. * * * In only two states has it been held unconstitutional. In at least fourteen jurisdictions where the legislation has been challenged on some or all of the grounds advanced by the plaintiff in this case it has been held valid.'

Section 1 of the New Hampshire Act contains an elaborate statement of legislative findings and declarations of necessity relating to the elimination of blighted areas and the advancement of redevelopment projects. The Legislature has declared that blighted areas exist within the state, section 1(a); 'that such areas * * * constitute a menace to the health, safety, morals and welfare of the residents of the state' which 'necessitate excessive and disproportionate expenditures of public funds', section 1(b); that redevelopment projects 'are public uses and purposes for which public money may be spent and private property acquired', section 1(c); that it is in the public interest that such areas be acquired by eminent domain and financed by public agencies under a redevelopment plan which is a public use and for a public purpose, section 1(d); that such redevelopment activities 'will aid the production of better housing and more desirable neighborhoods and community development', section 1(e); 'that it is in the public interest that advance preparation for such projects and activities be made now, and that the necessity in the public interest for the provisions hereinafter enacted is hereby declared as a matter of legislative determination', section 1(f).

These legislative findings and declarations have no magical quality to make valid that which is invalid but they are entitled to weight in construing the statute and in determining whether the statute promotes a public purpose under the Constitution. Allydonn Realty Corporation v. Holyoke Housing Authority, 304 Mass. 288, 294, 23 A.2d 665, 'Although such legislative declarations are subject to judicial review they are entitled to a prima facie acceptance of their correctness'. Belovsky v. Redevelopment Authority, 357 Pa. 329, 334, 54 A.2d 277, 280, 172 A.L.R. 953. That principle has been applied in this state. In re Opinion of the Justices, 94 N.H. 515, 517, 53 A.2d 194. 'A legislative declaration of purpose is ordinarily accepted as a part of the act'. In re Opinion of the Justices 88 N.H. 484, 490, 190 A. 425, 429. 'Unless a court can clearly see that a law purporting to have been enacted to protect the public health and public morals has no relation to those objects, it cannot set it aside as unconstitutional and void.' State v. Roberts, 74 N.H. 476, 478, 69 A. 722, 723, 16 L.R.A.,N.S., 1115. This general rule has been consistently applied in this state in considering the constitutionality of various types of statutes enacted under the police power. Chung Mee Restaurant Co. v. Healy, 86 N.H. 483, 484, 171 A. 263; State v. Dickstein, 89 N.H. 546, 3 A.2d 115; Chronicle & Gazette Pub. Co. v. Attorney General, 94 N.H. 148, 48 A.2d 478, 168 A.L.R. 879.

The view that redevelopment projects constitute a valid public purpose for which public funds may be appropriated and the power of eminent domain granted is approved by the overwhelming weight of authority. See, for example the following cases: Ajootian v. Providence Redevelopment Agency, R.I., 91 A.2d 21; Chicago Land Clearance Commission v. White, 1 Ill.2d 69, 115 N.E.2d 337; Foeller v. Housing Authority of Portland, 198 Or. 205, 256 P.2d 752; Belovsky v. Redevelopment Authority, 357 Pa. 329, 54 A.2d 277, 172 A.L.R. 953; Hunter v. Norfolk Redevelopment & Housing Authority, 195 Va. 326, 78 S.E.2d 893; Murray v. LaGuardia, 291 N.Y. 320, 52 N.E.2d 884. The validity of slum clearance and low-rent housing applies with equal force to the elimination of blighted areas and their subsequent redevelopment. In effect the legislature has declared that redevelopment projects are 'instituted for the common benefit * * * of the whole community, and not for the private interest or emolument of any one man, family or class of men', N.H.Const. Part. I, Art. 10, and are in promotion of 'the benefit and welfare of this state.' N.H.Const. Part II, Art. 5; In re Opinion of the Justices, 88 N.H. 484, 489, 190 A. 425; In re Opinion of the Justices, 94 N.H. 515, 53 A.2d 194. A contrary view has been expressed in Housing Authority of City of Atlanta v. Johnson, 209 Ga. 560, 74 S.E.2d 891 and Adams v. Housing Authority, Fla., 60 So.2d 663 but they represent a distinct minority which we do not follow.

The act is specifically challenged because it allows the Authority to make the land in a redevelopment project available for sale or lease to public or private agencies. It is contended that this is an improper exercise of the power of eminent domain, even if the original taking may be for a public purpose because the ultimate disposition of the property is not for a public use. The same contention was made and answered in Gohld Realty Co. v. City of Hartford, 104 A.2d 365, 369: 'The purpose of the act is not only to remove slums and blighted areas but also to prevent the redeveloped areas from reverting to their former status. * * * This is accomplished by requiring as a condition of sales and leases of portions of the area to private persons that the property ['be developed or redeveloped for the purposes specified in such plan.' Laws 1947, c. 210, § 5]. If the public use which justifies the exercise of eminent domain in the first instance is the use of the property for purposes other than slums, that same public use continues after the property is transferred to private persons. The public purposes for which the land was taken are still being accomplished.' The resale or lease with conditions consistent with the redevelopment plan are an essential and continuing part of the public purpose. This has been recognized by many jurisdictions. Hunter v. Norfolk Redevelopment & Housing Authority, 195 Va. 326, 78 S.E.2d 893; Zurn v. Chicago, 389 Ill. 114, 59 N.E.2d 18; State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N.E.2d 778; Matter of Slum Clearance in the City of Detroit, 331 Mich. 714, 50 N.W.2d 340.

It is to be noted that the...