Porsh Builders, Inc. v. City of Winston-Salem

*557Justice Carlton

dissenting.

I respectfully dissent from the majority opinion because I think it incorrectly interprets the intent of our Legislature with respect to the responsibility of a municipal governing body in reviewing the sale to private developers of property owned by a redevelopment commission. In my opinion, this decision seriously impairs the ability of city officials to manage responsibly the business affairs of the city with which they are entrusted.

The sole issue presented by this appeal is the interpretation of the requirement in G.S. 160A-514(d) that “[a]fter receipt of all bids, the sale shall be made to the highest responsible bidder.” The majority holds that the term “responsible” in the statute:

was intended to give the municipality power to use its discretion only to the extent of determining whether a bidder has the resources and financial ability to complete the project set forth in his proposal for the development of the property. This phrase does not allow the municipality to consider which bid best complies with the redevelopment plan.

(Emphases added.) With this narrow, restrictive interpretation of the statute I strongly disagree.

In reaching its interpretation of the statutory phrase “highest responsible bidder,” I think that the majority has ignored the cardinal rule of statutory construction: In ascertaining legislative intent, courts should consider the language of the statute, the spirit of the statute and what it seeks to accomplish. Stevenson v. Durham, 281 N.C. 300, 303, 188 S.E. 2d 281, 283 (1972). In reviewing the language, spirit and goal of G.S. 160A-514 I think that the trial court properly concluded that the statute authorizes a city governing board “to give consideration to the redevelopment plan of each bidder, the housing needs of the City, the housing policies of the City, the revenue to be derived from each bid, and factors other than merely the dollar amount bid for the property in question.” The majority reaches a contrary conclusion with absolutely no citation of authority.

In first reviewing the language of the statute, the statutory phrase in question refers to the “highest responsible bidder.” To hold, as the majority does, that this phrase refers only to determin*558ing whether a bidder has sufficient financial resources to make good his bid and to perform his proposed plan is to ignore completely the precise legislative usage of the word “responsible.” The statute does not provide, as the majority indicates, that a sale shall be made to the highest bidder. Had the Legislature intended for city boards to limit their consideration solely to dollars and cents, why insert the word “responsible?” The word was used, I submit, because the Legislature intended this phrase to mean more than mere financial considerations.

In reading G.S. 160A-514 in conjunction with the remaining statutes in Article 22, Chapter 160A, the spirit and goal of the statute in question becomes clear, and the legislative intent in employing the phrase “highest responsible bidder” becomes easily discernible. As the trial court apparently concluded, this Article of our General Statutes is obviously concerned with factors such as the redevelopment plan of bidders, the housing needs and policies of a city, the revenue to be derived by a city from bids received, and other factors other than mere dollar amounts. See G.S. § 160A-513 (1976). To hold otherwise would be to interpret as meaningless the statutory provision requiring that bids and sales must be approved by the governing body, G.S. § 160A-514(d). Under the majority’s interpretation, such approval would be merely a mechanical and ministerial act which could be performed by any city employee by simply comparing the bid amounts. I do not believe this to be spirit or goal of our redevelopment statutes.

In reaching its decision, I think the majority has ignored the clear language of G.S. 160A-514(c). As I read this statute, it limits sales by redevelopment commissions to bidders whose plans are consistent with the redevelopment or community development plan for an area and requires the governing body’s, in this case the Board of Aldermen’s, approval of such sales. By this statute, it seems clear to me that our Legislature has authorized the Board of Aldermen to determine which plans are consistent with, or more consistent with, the redevelopment plan. Here, a majority of the Board concluded that the Ozmun bid was more consistent with the community plan and more fully achieved the objectives sought to be achieved by the plan. Clearly, then, in determining who is the “highest responsible bidder,” the Board of Aldermen is authorized, and indeed required, to consider which plan would be most consistent with the redevelopment plan of the city.

*559I certainly agree with the majority that the phrase “highest responsible bidder” refers to financial considerations. I cannot agree, however, with the majority’s holding that the only financial consideration is that of the dollar amount of the bids submitted. Other financial considerations must surely be more important to a city board. The board should be able to consider which plans submitted would generate the most tax revenue for the city in the long run and which plan would be most consistent with the housing goals and policies of the city. In other words, it is inconceivable to me that the Legislature intended that a governing body could not consider, in determining the “highest responsible bidder,” the overall financial impact upon a city when making its determination as to the “highest responsible bidder.”

The instant case is illustrative of this point. The record discloses that the City was committed to acquire for Section 8 Elderly Housing a lot across the street from the one here in question. The minutes of the Board meeting of 16 October 1978 indicate that Mr. Ozmun held an option on this lot and intended to move onto it a house he had purchased. This would make it necessary for the City to purchase a house and lot, rather than a lot only, if Parcel 1 (the lot sold by the City to Ozmun) were sold to Porsh Builders. The Ozmun bid committed Mr. Ozmun to move his house onto Parcel 1 rather than the Section 8 housing lot. Obviously, the action of the Board of Aldermen precluded the City from having to expend considerable sums in purchasing a house and lot. Surely this savings would exceed the difference between the Ozmun and Porsh bids. Moreover, the minutes established that the Ozmun bid would generate more tax funds for the City than the Porsh bid. The record discloses that approval of the Ozmun bid would result in the receipt into the City of substantial rent subsidy funds and would make available eleven additional units of low-rent housing in the City. I believe that these are valid considerations in determining which is the “highest responsible bidder.”

While the majority cites no authority for its holding, my view is supported by decisions from other jurisdictions. In Claus v. Babiarz, 41 Del. Ch. 158, 165, 190 A. 2d 19, 23 (1963), the court said, “It has been held by eminent authority that a municipality in disposing of property is not required to consider only the price which is offered. It may take into consideration its economical, financial and industrial interest, including the tax yield from proposed develop*560ment.” (Citations omitted.) See Futterman-Marott Corporation v. City of Fort Wayne, 248 Ind. 503, 230 N.E. 2d 102 (1967).

My view is also supported by the well-established rule in this jurisdiction that, “The courts will not interfere with the exercise of discretionary powers conferred on municipal corporations for the public welfare, unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of discretion . ...” 9 Strong’s North Carolina Index 3d, Municipal Corporations § 4 at p. 134 (1977), and cases cited therein. I believe that the power granted by G.S. 160A-514 is discretionary and I find no contention here that this Board abused its discretion. Indeed, I think the Board, based on the record before us, properly exercised its discretion. The record establishes that the Board considered numerous factors before reaching its determination. For example, it considered (1) the relationship between the Ozmun proposal and the availability to the City of another site for Section 8 housing, (2) federal funding of approximately $300,000 which would be available for Section 8 housing, (3) federal rental assistant payments of approximately $1.3 million over a forty-year period for the maintenance of tenants in the proposed Section 8 housing project, (4) the City Planning Staffs determination that the Ozmun plan more nearly complied with the redevelopment plan of the City, (5) the greater increase in housing stock which would result from acceptance of the Ozmun bid than would result from acceptance of the Porsh proposal, (6) the increase in availability of housing for the elderly low-income citizens in the City which would result from acceptance of the Ozmun proposal, and (7) a substantial increase in the tax base and tax revenues which would result from acceptance of the Ozmun proposal. In light of these factors, the relatively small difference in bids of $1,800 pales in comparison. To ignore the enumerated factors and require the City to accept the bid on a mere $1,800 difference, as the majority would require, would not only, in my view, constitute a failure to award to the highest responsible bidder, such action would be highly irresponsible.

In my opinion, the majority’s decision will seriously impair the ability of city boards to provide proper fiscal management of city affairs. It is inconceivable to me that our Legislature intended such a result. The majority result is wholly unreasonable when the practical ramifications of its result are considered. For example, it would require a city (1) to ignore the anticipated tax revenue or *561other municipal revenues to be generated by the bids submitted, (2) to ignore the housing policies or other applicable policies of the city, (3) to accept a bid with conditions unacceptable to the city, and (4) to accept the highest dollar bid even though, as here, the public notice of sale specifically states that the redevelopment plan of the bidder must first be approved by the Board of Aldermen. Surely such relevant factors as these are not to be ignored by men and women duly elected to provide sound business management to the affairs of North Carolina’s municipalities.

The absurdity of the majority result is best illustrated by a hypothetical. If Bidder A submitted a bid of $50,000 for a particular area on which it planned construction which would result in a tax base of $100,000 and Bidder B submitted a bid of $49,500 for the same property on which it planned construction which would result in a tax base of $1,000,000, the majority would hold that the “highest responsible bidder” is Bidder A because his bid was $500 more than Bidder B. In other words, the majority would require the city to take the $500 bid differential and ignore a $900,000 tax base differential which would benefit the city with tax revenues for years to come.

Such a result violates not only what I perceive to be the legislative intent; it flies in the face of what I know to be plain common sense.