Daily Development for
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
CONSTITUTIONAL LAW; DUE PROCESS; PROCEDURAL DUE PROCESS; NOTICE: Due Process requires that a city give a mortgagee notice of its intent to demolish a building on the mortgaged property and opportunity to be heard on the issue.
Home Doc Corp. v. City of
The plaintiff held a valid mortgage on certain real property
and had commenced a foreclosure action in which it named and served the
The court held that, since the City had notice of the
foreclosure action and there was no showing that the building posed an
immediate peril to the health and safety of the community at large, the City
had violated the due process rights of the foreclosing mortgagee
by demolishing the building without giving the mortgagee
prior notice or opportunity to be heard.
Comment 1: In fact, the City of
Comment 2: For a case on the basic proposition that due
process requires notice to owners of property prior to demolition and a hearing
on the propriety of the demolition, even though the City argues that the
demolition will serve critical health and safety concerns, see Catanzaro v. Weiden, 140 F.3d 91
(2d Cir. 1998) (The DIRT DD for 9/14/98).
For a little information about the standards to be applied, see Herrit v. Code Management Appeal Bd. of City of
Butler, 704 A.2d 186 (Pa.Commw. 1997) (Although municipal codes generally enjoy a
strong presumption of validity, a code provision requiring a building owner to
demolish an unsafe structure if the costs of repair would exceed 100% of
property's value violates Due Process and Equal Protection clauses of the
Pennsylvania Constitution as well as the federal Constitution, since the
ordinance is not rationally related to public health; there is no rational
reason for city not to allow a building owner to abate a nuisance on his
property) (part of the same DD).
Comment 3: If procedural delays hold up a city in carrying
out a necessary demolition, is the City liable if the building causes injury to
others? See Continental Paper and Supply
Co., Inc. v. City of Detroit, 545 N.W. 2d 657(Mich.1996.), the DIRT DD for
4/30/96, (City government is not liable under "nuisance-trespass"
theory for fire damage caused by fire spreading from abandoned buildings as to
which City has issued demolition order and has sought transfer of title from
the State (which acquired it in a tax sale) if the City had not yet obtained
formal legal title at time of fire - City was neither "owner" nor
"operator.")
See also: Village of
The Illinois statute, 65 ILCS 5/11-31-1, authorizing demolition of property which is dangerous and hazardous is unconstitutional in that the statutory framework does not provide the owner with an opportunity to repair the property and therefore is an unlawful taking without due process. The court wanted the legislature to provide a least restrictive means of protecting the public from unsafe buildings when a (new?) fundamental property right is infringed upon..
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