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HORNE v. CITY OF CORDELE et al.
52780.
Destruction of dwelling, etc. Crisp Superior Court. Before Judge McMurray.
DEEN, Presiding Judge.
While the police power of a governmental unit authorizes in a proper case the taking or destruction of the property of a citizen for the public welfare, its power is coextensive with the necessities of the case and may not exceed the limits of the emergency giving rise to it. An ordinance which permits destruction of property within the boundaries of the municipality, without just compensation to the owner and without giving him an opportunity to repair it and thus bring it up to minimum standards, merely on the ground that its dilapidation makes it a health or safety hazard, is unconstitutional and void.
Appellant Horne owned a two-story wooden residence structure of Victorian design on a corner lot near various businesses in the City of Cordele. The lot is presently zoned commercial. The surrounding neighborhood is comprised partly of new business structures and partly of former residences converted into business structures. The building had been vacant for two or three years. Part of the porch had been removed after being struck by a falling tree; many of the windows were broken, roof, walls and floor needed repairs, and there was testimony that the house was open and therefore available to trespassers who might enter at night and perhaps cause fire or other damage.
These facts and others were brought out at a hearing before the city manager's designated agent and employee, the executive director of community development, who found the building not fit for human habitation, that the house had no value in its present condition, that to restore it to a habitable condition would cost between $6,000 and $30,000, thus showing conclusively that repairs would be far in excess of 50 percent of the present value of the building, and that the premises could, under ordinance criteria, be ordered cleared and the structure demolished.
Certiorari to the superior court from this order was denied and the case appealed to the Supreme Court, which in turn transferred to this court.
The ordinance is undoubtedly drawn with reference to Code 69-1118 which provides in part: "Any municipality may by ordinance require the repair, closing or demolition of dwellings or other structures intended for human habitation which are, as defined in such ordinance, unfit for human habitation or which may imperil the health, safety or morals of the occupants thereof or of surrounding areas," and also provides for notice and hearing as to whether such conditions exist. It is obvious that the city could demolish the house without payment of just and adequate compensation only in the exercise of its police power, which, as discussed at length in McCoy v. Sanders, 113 Ga. App. 565 (148 SE2d 902) is government's inherent and plenary power over persons and property, having its origin in the law of necessity, which extends to all great public needs, sanctions the destruction of property for such purposes without recompense, and, as to the owner, constitutes damnum absque injuria. The constitutional considerations which hedge in government's right of eminent domain do not apply to police power, and the citizen whose property is taken or destroyed is helpless before it. For this reason alone the authorization of government to take the property of its citizens can be invoked only in the face of compelling necessity, and it extends no further than the emergency which creates it. The rule, if not the designation, is inherent in Dupree v. Mayor &c. of Brunswick, 82 Ga. 727, where the court held of a fire prevention ordinance: "Without deciding whether the mayor and council have this great power conferred on them which they claim, or whether the legislature has power to confer it, we hold that if they have such power and can remove any building in the city when 'in their opinion it shall be necessary to insure against fire,' they can only do so in cases of absolute necessity, or in grave emergencies, when the removal is necessary to prevent fires and destruction of other property by fire." The destruction of property for aesthetic reasons, for example, has been held an unconstitutional exercise of the power. Village of Deshler v. Hoops, 196 NE2d 476. And so is any other exercise of government's power of uncompensated destruction over the property of the citizen which exceeds the immediate necessity of the occasion. City of Newport v. Rosing, 319 SW2d 852. "[W]hile the right exists in the exercise of the police power to destroy property which is a menace to public safety or health, public necessity is the limit of the right and the property cannot be destroyed if the conditions which make it a menace can be abated in any other recognized way. Polsgrove v. Moss, 154 Ky. 408, 157 SW 1133; 39 AmJur pp. 461-462, Sec. 186; 62 CJS, Municipal Corporations, 281, pages 631-632; Crossman v. City of Galveston, 112 Tex. 303,
316, 247 SW 810, 26 ALR 1210." City of Houston v. Lurie, 224 SW2d 871, 14 ALR2d 61. See also Albert v. City of Mountain Home, 337 P2d 377; City of Aurora v. Meyer, 38 Ill. 2d 131 (230 NE2d 200); Childs v. Anderson, 344 Mich. 90, 73 NW2d 280; Application of the Village of Suffern, 209 NYS2d 599; Newton v. Highland Park, 282 SW2d 266; Horton v. Gulledge, 277 NC 353 (177 SE2d 278.)
The vice of the ordinance under consideration is that it flatly permits uncompensated destruction of the owner's property where the cost of repair would exceed 50 percent of the value of the structure unrepaired. In this it differs from similar ordinances which have been approved by various courts. In Perepletchikoff v. City of Los Angeles, 345 P2d 261, the condition was that where there was a nonconforming use the owner had a choice of allowing demolition under police power or so repairing the building that it conformed to the zoning laws. In West Realty Co. v. Ennis, 164 A2d 409, property constituting a fire hazard, where cost of repair would exceed 50 percent of replacement cost might be condemned, i.e., the owner would receive proper compensation. In Albert v. City of Mountain Home, 337 P2d 377, destruction of a fire hazard on the ground of nuisance would be illegal unless consideration was first given to the possibility of eliminating the hazard by means other than destruction.
The same principle is inherent in Shaffer v. City of Atlanta, 223 Ga. 249 (154 SE2d 241) wherein it was held that injunction would lie to prevent the owner's buildings from being razed as a nuisance, where he alleged that a building permit applied for to allow repair of the structures had been arbitrarily refused. "The ordinance, Section 15-22, which authorizes the determination by the city officials of the unfeasibility of rehabilitation of a dwelling amounts to the taking of private property without due process, without just and adequate compensation therefor, and is discriminatory in that it denies the owner the equal protection of the laws in violation of both the State and Federal Constitutions. . ."
In the present case it appears that the owner twice applied for and was refused building permits in order to repair the house under consideration here. We do not find it necessary to reach the question of whether the owner was in good or bad faith in applying, or whether the building inspector was in good or bad faith in refusing the applications, or to pass on the remaining enumerations of error. Our holding is that any ordinance which authorizes demolition of a structure within the city without compensation to the owner merely because the cost of repair exceeds the value of the structure or any percentage thereof, without first allowing opportunity to repair (and, if necessary, providing for discovery of the criteria which must be met to bring the structure up to a minimum standard) is unconstitutional and void.
The judge of the superior court erred in dismissing the certiorari.
Judgment reversed. Webb and Smith, JJ., concur.
Roberts, Roberts & Rainwater, Guy V. Roberts, for appellees.
Mullis, Reynolds, Marshall & Horne, W. Carl Reynolds, for appellant.
ARGUED OCTOBER 4, 1976 -- DECIDED OCTOBER 22, 1976.
Friday May 22 08:10 EDT


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