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A-S-P Associates v. City of Raleigh

Filed: October 3, 1979.

A-S-P ASSOCIATES
v.
CITY OF RALEIGH



On defendant's petition for discretionary review of the decision of the Court of Appeals, Brock, Justice. Justice Carlton took no part in the consideration or decision of this case.

Brock

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 (1959); 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 (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 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 Contempt. 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 Carre 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 legacy of historically significant structures. "While most aesthetic ordinances are concerned with good taste and beauty . . . a historic district zoning ordinance . . . is not primarily concerned with whether the subject of regulation is beautiful or tasteful, but rather with preserving it as it is, representative of what it was, for such educational, cultural, or economic values as it may have. Cases dealing with purely aesthetic regulations are distinguishable from those dealing with preservation of a historical area or a historical style of architecture." A. Rathkopf, The Law of Zoning and Planning, § 15.01, p. 15-4, (4th ed. 1975).

The preservation of historically significant residential and commercial districts protects and promotes the general welfare in distinct yet intricately related ways. It provides a visual, educational medium by which an understanding of our country's historic and cultural heritage may be imparted to present and future generations. That understanding provides in turn a unique and valuable perspective on the social, cultural, and economic mores of past generations of Americans, which remain operative to varying degrees today. N. Williams, American Planning Law, Land Use and the Police Power, § 71A.02, p. 88 (Cum. Supp. 1978). Historic preservation moreover serves as a stimulus to protection and promotion of the general welfare in related, more tangible respects. It can stimulate revitalization of deteroriating residential and commercial districts in urban areas, thus contributing to their economic and social stability. Figarsky v. Historic District Comm., 171 Conn. 198, 208, 368 A. 2d 163, 167 (1976); R. Montague & T. Wrenn, Planning for Preservation, pp. 11-17 (America's Society of Planning Officials 1969). It tends to foster architectural creativity by preserving physical examples of outstanding architectural techniques of the past. N. Williams, supra, at § 71A.02. It also has the potential, documented in

numerous instances, e.g., in the Vieux Carre section of New Orleans, of generating substantial tourism revenues. City of New Orleans v. Levy, 223 La. 14, 64 So. 2d 798 (1953); R. Montague & T. Wrenn, supra ; Schroder, The Preservation of Historical Areas, 62 Ky. L.J. 940 (1974). Although it is also recognized that historic preservation legislation, particularly historic district ordinances, may adversely affect the welfare of certain segments of society and infringe on individual liberty, Beckwith, Developments in the Law of Historic Preservation and A Reflection on Liberty, 12 Wake Forest L. Rev. 93 (1976); Newsom, Blacks, and Historic Preservation, 36 Law & Contemp. Probs. 423 (1971), the wisdom of such legislation is "fairly debatable," precluding substitution of our judgment for that of the General Assembly.

Although the object of particular legislation may well be within the scope of the police power, the legislation may yet deprive individuals of due process of law if the means chosen to implement the legislative objective are unreasonable. Euclid v. Ambler Realty, supra; Maher v. City of New Orleans, supra. Such is not the case here, however. Comprehensive regulation of the "construction, reconstruction, alteration, restoration, or moving of buildings, structures, appurtenant fixtures, or outdoor advertising signs in the historic district which would be incongruous with the historic aspects of the district" is the only feasible manner in which the historic aspects of an entire district can be maintained. Associates' contention that the provisions in the Oakwood Ordinance requiring issuance of a certificate of appropriateness for new construction is unreasonable, particularly when applied to Associates' plans to construct an office building on its now vacant lot, is without merit. It is widely recognized that preservation of the historic aspects of a district requires more than simply the preservation of those buildings of historical and architectural significance within the district. In rejecting a similar challenge, the District Court in Maher v. City of New Orleans, 371 F. Supp. 653, 663 (E.D. La. 1974) observed: "just as important is the preservation and protection of the setting or scene in which [structures of architectural and historical significance] are situated." See City of New Orleans v. Permagent, supra ; Wiedl, Historic District Ordinances, 8 Conn. L. Rev. 209, 215-17 (1976). This "tout ensemble" doctrine, as it is now often termed, is an integral and reasonable part of effective historic district preservation.

Most important, however, is the fact that Associates and other property owners similarly situated are not prohibited by the Oakwood Ordinance from erecting new structures. They are only required to construct them in a manner that will not result in a structure incongruous with the historic aspects of the Historic District. Property owners within the Historic District may, by virtue of this requirement, be unable to develop their property for its most profitable use or at the cost they would prefer. But the mere fact that an ordinance results in the depreciation of the value of an individual's property or restricts to a certain degree the right to develop it as he deems appropriate is not sufficient reason to render the ordinance invalid. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968); Helms v. Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961). The test of reasonableness necessarily involves a balancing of the diminution in value of an individual's property and the corresponding gain to the public. Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).

Associates next contend that the superior court erred as a matter of law in ruling that the Oakwood Ordinance does not delegate legislative power to the Historic District Commission. Legislative power is vested exclusively in the General Assembly by Article II, Section 1, of the North Carolina Constitution. From this provision and from Article I, Section 6, derives the principle that the General Assembly may not delegate its power to any other department or body. Motsinger v. Perryman, 218 N.C. 15, 9 S.E.2d 511 (1940); Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310 (1953). This principle, however, is not absolute.

"Since legislation must often be adapted to complex conditions involving numerous details with which the Legislature cannot deal directly, the constitutional inhibition against delegating legislative authority does not deny to the Legislature the necessary flexability of enabling it to lay down policies and establish standards, while leaving to designated governmental agencies and administrative boards the determination of facts to which the policy as declared by the Legislature shall apply. (Citation omitted.) Without this power, the Legislature would often be placed in the awkward ...


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