Opinion
Argued September 29, 1978
November 17, 1978.
Property — Demolition of unsafe buildings — Home Rule Charter and Optional Plans Law, Act 1972, April 13, P.L. 184 — Notice — Third Class City Code, Act 1931, June 23, P.L. 932 — Due process — Hearing — Police power — Nuisance.
1. A municipality may properly order the demolition of unsafe buildings under ordinances enacted pursuant to the authority of the Home Rule Charter and Optional Plans Law, Act 1972, April 13, P.L. 184, when such conditions were found to exist and worsen over a ten year period in disregard of official notices of code violations and demands that the conditions be corrected. [512-13]
2. Municipalities adopting home rule charters under the Home Rule Charter and Optional Plans Law, Act 1972, April 13, P.L. 184, may adopt ordinances relating to building codes and the enforcement of such codes without being controlled by procedures provided by the Third Class City Code, Act 1931, June 23. P.L. 932, which is inapplicable to cities adopting a home rule charter. [513-14]
3. Due process rights of a property owner are not violated because he was ordered to demolish an unsafe building prior to a hearing on the matter when sufficient time is provided to seek and obtain a hearing before an appeal board and in a lower court. [514]
4. Due process is not denied a property owner, who is ordered by municipal officials in the exercise of the police power to demolish a building found to be in violation of building codes and unsafe or dangerous to life and limb, merely because there is no finding made that such building constitutes a nuisance. [514-15]
Argued September 29, 1978, before Judges MENCER, ROGERS and CRAIG, sitting as a panel of three.
Appeal, No. 1896 C.D. 1977, from the Order of the Court of Common Pleas of Luzerne County in case of Thomas J. Murray, Jr. and Beatrice Murray, his wife, and Larry Deminski v. The City of Wilkes-Barre and the Wilkes-Barre City Building Board of Appeals, No. 2652 of 1977.
Property owner ordered to demolish buildings by Wilkes-Barre City Housing and Building Inspectors. Property owner appealed to the Wilkes-Barre City Building Board of Appeals. Order affirmed. Property owner appealed to the Court of Common Pleas of Luzerne County. Decision affirmed. DALLESANDRO, J. Property owner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James F. Geddes, Jr., with him Silverblatt Townend, for appellants.
Carl N. Frank, for appellees.
This is an appeal by owners of buildings from an order of the Court of Common Pleas of Luzerne County, affirming a decision of the Wilkes-Barre City Building Board of Appeals which in turn sustained an order of the City Housing and Building Inspectors that the appellants' buildings be put in a state of repair on or before March 18, 1977 or that they be razed.
The appellants, Mr. and Mrs. Murray, have legal title to two sets of row houses located in the City of Wilkes-Barre. Over the past ten years they have received numerous notices from the city that these dwellings were in violation of building and housing codes. Mr. Murray testified in hearings before the Building Board of Appeals that he cured some of the defects but admitted that he ignored others. He also conceded that he made no repairs other than normal maintenance after 1972. On February 11, 1977 the City Housing and Building Inspectors notified the appellants of numerous violations of the Wilkes-Barre Building and Housing Codes and, as earlier noted, ordered that the violations be ended by March 18, 1977 or that the properties be razed by the city pursuant to provisions of the two Codes.
On January 31, 1977 the appellants entered into an agreement to sell the properties to one Larry A. Deminski, who thus has an equitable interest in the property. Mr. Deminski is a named appellant but has not otherwise participated in this appeal.
The City's Housing Code provides:
Section 108.11. When upon re-examination, after the expiration of the time for compliance the Enforcement Officer finds that the violations have not been corrected, he is authorized to cause such dwellings to be repaired, altered, improved, or demolished or razed.
The City's Building Code provides:
Section 8. Unsafe buildings.
(a) Removal or repair of buildings. Whenever any building, structure, or part thereof, or appurtenances thereto, shall have been declared dangerous or unsafe by the building inspector's office, the building shall, unless made safe and so certified by the building inspector's office, be demolished, taken down or removed. The term 'dangerous' or 'unsafe' shall include buildings structurally unstable, unsanitary, inadequately equipped with exit facilities, constituting a fire hazard, unsuitable or improper for the use or occupancy to which it is put, constituting a hazard to health or safety because of inadequate maintenance, dilapidation, including but not limited to lack of coating or recoating of exterior surfaces that are not inherently resistent to deterioration with a protective coating of paint or other suitable preservative, and obsolescence or abandonment, or because of lack of proper sanitation, or because of unsafe electrical wiring or appliances, or otherwise dangerous to life or property.
The City of Wilkes-Barre has adopted a home rule charter and the Codes just mentioned were enacted in the exercise of the powers conferred on it as a home rule charter municipality by the State Constitution and the Home Rule Charter and Optional Plans Law, Act of April 13, 1972, P.L. 184, as amended, 53 P. S. § 1-101 et seq.
The Murrays appealed the order of the Inspectors to the Building Board of Appeals which held hearings and sustained the order. They subsequently appealed to the Court of Common Pleas which also heard testimony and affirmed the order of the Board. This appeal followed.
The appellants first say that the court below erred in affirming the order of the Building Board of Appeals because the evidence presented at the hearings did not support the harsh remedy of demolition. They say that the granting of additional time to make repairs would have been the proper remedy, citing Groff v. Borough of Sellersville, 12 Pa. Commw. 315, 314 A.2d 328 (1974). The order complained of afforded the appellees five weeks within which to repair their buildings. The record shows that they had received numerous notices of code violations during the ten years preceding this final notice and took no effective action in compliance. The court below noted that the many areas in need of extensive repair included the outside walls, window frames, chimneys, foundations, front porches, entrances, ceilings, walls and electrical wiring. Having allowed these conditions to exist and indeed worsen over a ten year period in effective disregard of official demands for their correction, the appellants' complaint based on insufficient notice was properly rejected below.
The appellants' reliance on Groff is misplaced. In that case we held that a court should not devise an equitable remedy that is harsher than necessary to abate a nuisance. In this case the court was not asked to fashion a remedy but to review for error the order of an administrative body acting under powers granted by local ordinances and a home rule charter.
The appellants next say that the city should have employed the procedures provided in Section 4140 of the Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P. S. § 39140 for the abatement of public nuisances. This argument is wholly without merit. Wilkes-Barre having adopted a home rule charter, its affairs with respect to the subject at hand were no longer governed by the Third Class City Code. Article IX, Section 2 of the Pennsylvania Constitution provides: "A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." The Legislature has not denied home rule municipalities the power to abate dangerous housing conditions; on the contrary, Section 302(b)(iv) of the Home Rule Charter and Optional Plans Law, 53 P. S. § 1-302(b)(iv), after naming subjects not subject to disposition by home rule legislation, provides: "Nothing herein contained shall be construed to in any way affect the power of any municipality to enact and enforce ordinances relating to building codes or any other safety, sanitation or health regulation pertaining thereto. . . ."
The appellants also say that the procedures of the Wilkes-Barre Housing and Building Codes violate the due process rights of the appellants because the Inspectors were not required to conduct a hearing before issuing the notice that the appellants' buildings be repaired or razed. The appellants were given notice of the Inspectors' demolition order and were provided sufficient time to seek and obtain a hearing before the Building Board of Appeals, and on appeal, in the court below. This procedure looking toward the elimination of unsafe buildings is almost identical to that which we approved in the case of Pittsburgh v. Kronzek, 2 Pa. Commw. 660, 280 A.2d 488 (1971). Further, since their buildings seem to be extant nearly two years after service of notice they complain of, the appellants' criticism of the procedures in question as inadequately protecting their interests lacks force in reality.
Finally, the appellants say that they were denied due process because neither the court below nor the Building Board of Appeals made the specific finding that the buildings in question constituted a "nuisance." This argument is sophistical. The appellants' buildings were found to be in unsafe condition, defined in Section 108.1 of Wilkes-Barre's Housing Code as "dangerous to life, limb, or property." The buildings were also found to be "dangerous or unsafe" by reason of almost every one of the conditions enumerated in Section 8 of the Wilkes-Barre Building Code, reproduced earlier in this opinion. In Pittsburgh v. Kronzek, supra, we held that the requirement of the demolition of buildings found to be in dangerous condition is a proper and necessary exercise of the police power. To deny this power to a municipality merely because such conditions are not also characterized by the fact finders as nuisances would be absurd.
Order affirmed.
ORDER
AND NOW, this 17th day of November, 1978, the order of the Court of Common Pleas of Luzerne County dated August 30, 1977 is affirmed.