Saunders, J.s.c. (temporarily assigned).
This case raises novel issues concerning a municipality's power to summarily abate a nuisance and to assess the cost thereof as a personal obligation of the property's owner under N.J.S.A. 40:48-1.1.
The facts of this case were stipulated as follows. On November 7, 1978 defendant Fargo Realty Inc. (Fargo) was the owner of property located at 125 North Third Street, Paterson, New Jersey. On that same day the house situated on those premises was heavily damaged by fire. On November 8, 1978 the property was conveyed by deed from Fargo to codefendant Rehab Realty, Inc. (Rehab). This conveyance was recorded in the office of the Register of Deeds and Mortgages of Passaic County on November 9, 1978.
On November 8, 1978 a Western Union Mailgram addressed to Fargo was delivered to its registered office located at 250 Van Houten Street, Paterson, New Jersey, at 12:45 p.m. This telegram informed Fargo that "[d]ue to dangerous and hazardous conditions that exist at 125 North Third Street Paterson New Jersey structure must be demolished within 48 hours of receipt of this order." Fargo failed to demolish the building and on December 4, 1978 the City of Paterson had the remains of the structure demolished at a cost of $1,625. On February 5, 1979 a demolition lien was placed on the property by the city in the amount of $1,625. The parties agree that the value of the property immediately before and after the demolition was less than the amount of the demolition lien and assessment. The 1978 land assessment was $1,200.
On April 12, 1979 the city filed suit pursuant to N.J.S.A. 40:48-1.1 seeking to obtain a personal judgment against both defendants for the entire cost of the demolition. The case is now before the court on cross-motions for summary judgment.
Several issues were raised by defendants, but subsequent to oral argument they advised the court that they were waiving all defenses and proceeding only on the following issues:
I. Does N.J.S.A. 40:48-1.1 permit an unconstitutional taking of property without adequate compensation in violation of U.S.Const. , Amend. V and N.J.Const. (1947), Art. I, par. 20?
II. Is the assessment and demolition lien analogous to the levy of a special assessment and therefore limited to the enhancement value to the land?
III. Which defendant (if either) is personally liable for the cost of the demolition?
As required by R. 4:28-4(a), the Attorney General of New Jersey has been given notice of the action and the constitutional issue raised, but has not intervened.
Every citizen holds his property subject to the proper exercise of the police power, either by the Legislature directly or
by municipal corporations to which the Legislature has delegated such power. State v. Mundet Cork Corp. , 8 N.J. 359, 371 (1952), cert. den. 344 U.S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952). A municipality may, in the exercise of its police power, without compensation destroy a building or structure that is a menace to the public safety or welfare, or require the owner to demolish the dangerous piece of property. Rosenberg v. Sheen , 77 N.J. Eq. 476 (Ch.1910); 7 McQuillin, Municipal Corporations (3 ed. 1968) § 24.561 at 591. Moreover, it has been suggested that under such circumstances the municipality not only acts clearly within its police power, but also fulfills its duty to act in the interest of the health and safety of its inhabitants. Springfield v. Little Rock , 226 Ark. 462, 290 S.W. 2d 620 (Sup.Ct.1956).
The right of summary action in the abatement of public nuisances exists at common law under the police power. Vanderhoven v. Rahway , 120 N.J.L. 610, 612 (Sup.Ct.1938); Lawton v. Steele , 152 U.S. 133, 136 137, 14 S. Ct. 499, 38 L. Ed. 385 (1894); 6 McQuillin, supra , § 24.71 at 625 626. "But the right to summarily abate a nuisance is not without limitations. The right is based upon necessity and the necessity must be present to justify its exercise." (Citations omitted). Ajamian v. North Bergen Tp. , 103 N.J. Super. 61, 80 (Law.Div.1968), aff'd o.b., 107 N.J. Super. 175 (App.Div.1969), cert. den. 398 U.S. 952, 90 S. Ct. 1873, 26 L. Ed. 2d 292 (1970). In Ajamian the Law Division held that where there was an immediate danger to health or safety, township officials could rely on the police power to summarily vacate a building and need not compensate the owner. Id. at 81. Accord, Leppo v. Petaluma , 20 Cal.App. 3d 711, 97 Cal.Rptr. 840, 843 (D.Ct.App.1971), stating that in emergency situations the city can dispense with a due process hearing and demolish a building summarily.
N.J.S.A. 40:48-1(15) authorizes a municipality to make and enforce ordinances to provide for the removal of any building or structure which is or may become dangerous to life or health.
Pursuant to this statutory grant the City of Paterson enacted sections 5:2-29 through 38, inclusive, of the Revised Ordinances of Paterson (R.O.P.). The city, in demolishing the premises at 125 North Third Street, ...