Daily Development for
Friday, January 3, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONSTITUTIONAL LAW; DUE PROCESS: Although a city can summarily destroy a nuisance without compensating an owner when an emergency exists, the city must first provide the owner with sufficient due process.

Blanchard v. City of Ralston, 549 N.W.2d 652 (Neb. App. 1996).

City demolished the plaintiff's house without giving owner the statutory 60 days notice of pending action. The city claimed that due to the emergency situation that existed, no process was due or the due process afforded was adequate. The court pointed out that several months had passed from the time the City designated the property as a health nuisance until the time physical steps were taken to raze the property. Thus, the claim of an immediate danger seemed a bit suspect. Nevertheless, the court concluded that the trial court finding that there was an "emergency" was not clearly erroneous.

Regardless of whether ultimately there was an emergency, however, the court found that the city had not provided adequate process to the landowner. The city failed to diligently attempt to locate the owner, although several city departments had her address and she had spoken to the city attorney by phone. The city gave her no mailed notice, and simply posted the property. In fact, friends of the owner saw the notice and contacted her, and did appear at a hearing, but even then she was given a very short time to address the issues (or even to become aware of them) prior to the demolition.

The court, citing McQuillan, holds that in these situations due process for the owner of property declared a nuisance requires not only advance notice and hearing before demolition, but an adequate opportunity to correct the problems and avoid demolition. The city's own regulations normally provided a sixty day period for correction. The owner in this case was given three days. Thus, the destruction of the house constituted an inverse condemnation for which the city was liable.

Comment: The case typifies the growing tendency of courts to demand fair treatment of property owners oppressed by officious bureaucracy, at least when a clear property interest is at stake. Note that even when the property owner did receive actual advance notice and an opportunity to be heard, the court found that minimal standards of due process were not met. The court measured the adequacy of the process against the 60 day "cure" period required for "ordinary" nuisance cases. Here, although the "emergency" might have justified a shorter period, the court seems to conclude that the emergency was of the city's making - it had had ample time and opportunity to contact the property owner earlier, and if it had done so, the owner would not have been faced with the impossible deadlines that the city imposed.

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