Housing Authority of Raleigh v. Montgomery

MARTIN (Harry C.), Judge. 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 [427] 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 adqption by it of a resolution declaring that the acquisition of the property described therein is in the public interest and necessary for public use. [428] 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 ruling. Respondent’s assignment of error is overruled. Respondent next contends that the trial court erred in granting petitioner’s motion for summary judgment when petitioner had failed prior to the condemnation proceedings to make a good faith effort to acquire the property by private negotiations. Respondent’s argument is twofold. First, she contends that petitioner did not abide by the statutory requirement of good faith negotiation. Secondly, respondent contends that petitioner’s failure to abide by North Carolina’s Public Records act, N.C.G.S. 132-1 to -9, by disclosing its three appraisals amounted to a failure of good faith negotiations by petitioner. Under N.C.G.S. 40-11, condemnation proceedings can be initiated by the appropriate body politic if the condemnor “is unable to agree for the purchase of any real estate required” for its purposes. A petition instigating such proceedings must allege that the condemnor “has not been able to acquire title [to the real property], and the reason of such inability.” N.C. Gen. Stat. § 40-12 (1976). The above-quoted statutes have been interpreted to require a condemnor to “make a bona fide effort to purchase by private negotiation” prior to instituting condemnation proceedings. Power Co. v. King, 259 N.C. 219, 220-21, 130 S.E. 2d 318, [429] 320 (1963). Accord, Airport Authority v. Irvin, 36 N.C. App. 662, 245 S.E. 2d 390, appeal dismissed, 295 N.C. 548 (1978), cert. denied, 440 U.S. 912, 59 L.Ed. 2d 460 (1979). In the Irvin case, this Court quoted with approval the following language from Murray v. City of Richmond, 257 Ind. 548, 276 N.E. 2d 519 (1971): We do not construe the language [of the statute pertaining to negotiations] to mean that the condemning authorities must first make an offer of a figure below that which they believe to be the maximum they could justify paying for the property, then through a series of negotiations bargain with the property owner until some figure within what the Commission might consider to be reasonable was agreed upon. In fact, it appears to be much more honest and forthright on the part of the condemning authority to come forth in their initial offer with the highest price they feel they could reasonably justify paying for the property. 36 N.C. App. at 671, 245 S.E. 2d at 395-96. Applying these principles to the facts of this case, we can find no failure of good faith negotiation by the Housing Authority. The fact that the offer to acquire respondent’s property equaled the highest appraisal of the fair market value of that property was undisputed. As far as we can determine from the record, respondent never tendered a counteroffer to petitioner’s offer made in at least two letters to respondent. Furthermore, we do not consider petitioner’s refusal to reveal the three appraisals of the property as a lack of good faith. Petitioner encouraged respondent to obtain her own appraisals and even went so far as to offer to reveal the total amount of each of its appraisals. We, therefore, reject this portion of respondent’s contention that the petitioner failed to negotiate in good faith. Finally, respondent argues that the Public Records act required the Housing Authority to reveal to her its three appraisals of the property. Under the facts of this proceeding, we are not required to determine whether petitioner violated the terms of the Public Records act. We note the record does not disclose that respondent requested the appraisals after the appeal to superior court. Nor did she request a continuance of the summary judgment hearing in order to pursue further discovery relative to the appraisals, pursuant to N.C.R. Civ. P. 56(f). Assuming, arguendo, [430] that petitioner violated the Public Records act by refusing to disclose the appraisals of respondent’s property,, that violation may not be used as an affirmative defense in a condemnation proceeding. The proper procedure for compelling petitioner to turn over documents allegedly covered by the Public Records act would have been by proceedings pursuant to N.C.G.S. 132-9. The summary judgment from which respondent brought this appeal is Affirmed. Judges Arnold and Wells concur.