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In re Housing Authority

Filed: January 19, 1982.

IN RE: THE HOUSING AUTHORITY OF THE CITY OF RALEIGH, N.C., LOW-RENT PUBLIC HOUSING PROJECT NC 2-14
v.
BEULAH C. MONTGOMERY, PAULINE J. HOLT AND ALL PERSONS HAVING ANY INTEREST IN OR LIEN UPON THE PROPERTY DESCRIBED HEREIN



Appeal by respondent from Preston, Judge. Judgment entered 14 April 1981 in Superior Court, Wake County. Heard in the Court of Appeals 20 November 1981.

Martin (Harry C.), Judge. Judges Arnold and Wells concur.

Martin

The respondent presents two questions for our determination. First, she contends that the trial court erred in determining, for summary judgment purposes, that no genuine issue of any material fact existed.

Under Rule 56 of the North Carolina Rules of Civil Procedure, summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." The purpose of summary judgment under this

rule is not to decide an issue of material fact, but to determine whether a genuine issue of material fact exists. Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc., 301 N.C. 200, 271 S.E.2d 54 (1980). Properly granted, summary judgment eliminates the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim or the defense of the respective parties is exposed. Id.

According to respondent in the present case, the material fact in dispute was whether the site petitioner sought to condemn was to be used for the construction of a street or for construction of drainage and water and sewer lines. Respondent contends that the determination of this material fact was crucial because the Housing Authority had no power to condemn land for the former purpose and that if this was the proposed use, petitioner's action would be illegal. After reviewing the statutes granting housing authorities the power to condemn property, this Court rejects respondent's premise that the Housing Authority lacked authority to condemn land for the purpose of constucting an access street to Project N.C. 2-14 and concludes that the fact respondent seeks to put in issue was not material to a resolution of the case.

Under the statutory scheme, a housing "authority shall constitute a public body and a body corporate and politic, exercising public powers, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions" of the Housing Authorities Law, Article 1 of Chapter 157 of the General Statutes of North Carolina. N.C. Gen. Stat. § 157-9 (1981). These powers include the power "to purchase, lease, obtain options upon, acquire by gift, grant, bequest, devise, or otherwise any property real or personal or any interest therein . . . [and] to acquire by eminent domain any real property, including improvements and fixtures thereon." Id. The statutory grant of the power of eminent domain is reinforced by N.C.G.S. 157-11 which reads in pertinent part:

The authority shall have the right to acquire by eminent domain any real property, including fixtures and improvements, which it may deem necessary to carry out the purposes of this Article after the adoption by it of a resolution declaring that the acquisition of the property described therein is in the public interest and necessary for public use.

The legislature declared that "the clearance, replanning and reconstruction . . . and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired . . . ." N.C. Gen. Stat. § 157-2 (1976).

Respondent's argument that petitioner lacked statutory authority to condemn property for purposes of constructing a street defies a sensible interpretation of the clear language of the enabling statute. A housing complex as contemplated here cannot be constructed without providing means of ingress and egress for the people who reside therein. The power to condemn property for a street to connect the housing project with a major thoroughfare, as required by a municipality's thoroughfare plan, is a power necessary to carry out the purposes of the Housing Authorities Law.

Assuming, therefore, that the issue of how the property was to be used was a genuine one, we cannot find that it affected a material fact that would alter the outcome of the court's ...


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