Daily Development for
Monday, September 14, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Note that there are two new cases and one reprise case reported below:

CONSTITUTIONAL LAW; DUE PROCESS; DEMOLITION: The demolition of plaintiff's building without a predeprivation hearing pursuant to emergency procedures authorized under a city ordinance may constitute a violation of plaintiff's due process or equal protection rights under 42 U.S.C. Sec. 1983, the Fourteenth Amendment's Equal Protection Clause, and the Fair Housing Act, 42 U.S.C. Sec. 3601 et seq.

Catanzaro v. Weiden, 140 F.3d 91 (2d Cir. 1998).

Plaintiff owner owned two adjacent old threestory buildings sharing a common wall in Middletown, New York. An individual drove his automobile across the sidewalk and into one of the buildings. The Public Works Commissioner determined that the common wall required immediate reconstruction at considerable cost or immediate demolition of the entire building or else the building was in imminent danger of collapsing into the street and, over the owner's objection, ordered demolition without a hearing process in advance. The City Council received a report of the decision (before the demolition). Throughout, its discussion of the decision, the Mayor joked about"instant urban renewal". Plaintiff argued that the decision to demolish both buildings was arbitrary and negligent and was used as a pretext to rid the City of housing opportunities for the poor and racial minorities.

Finding genuine issues of material fact, the Court reversed the District Court's grant of summary judgment. Justice Parker dissented and offered an analysis of procedural and substantive due process claims.

Comment 1: Although the general issue concerned the lack of a hearing, this was a substantive due process case because it focussed on an actual determination made by a public official that led to the implementation of a statutory process, otherwise valid, that used no hearing.

Comment 2: Note that liability here was not based upon the statute being unconstitutional, but rather upon the Commissioner's specific determination that a public emergency warranted proceeding without a hearing. It will be much harder for the plaintiffs to win on that ground, as public officials generally are afforded a great deal of latitude, and a trier of fact will be so instructed. But the case stands for the proposition that this latitude is not unlimited, and plainly erroneous decisions may lead to public liability.

The court (for purposes of summary judgment) accepted the notion that even though the Commissioner, and not the Mayor, made the call, the Mayor's expressed attitude may have influenced the Commissioner's judgment.

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

(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 was the DD for January 3, 1997, and can be found on the DIRT website: DD 1/3/97.

CONSTITUTIONAL LAW; SUBSTANTIVE DUE PROCESS; NUISANCE: 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.

Herrit v. Code Management Appeal Bd. of City of Butler, 704 A.2d 186 (Pa.Commw. 1997).

The court cited a Kentucky case that had reached the same conclusion on a similarly worded provision: Washington v. City of Winchester, 861 S.W.2d 125 (Ky. Ct. App. 1993).

Comment: Savor this one, folks. It is rare for a state court to find that a municipal land use ordinance violates the substantive due process. The gist of the ruling was that it was unfair to destroy the landowner's building because is has become a public nuisance without giving the landowner a reasonable opportunity to repair.

Note that in this case the landowner had received several notices of building defects and had not repaired, but the court focused on the language of the ordinance. At the hearing ordering the razing of the building, the building owner had volunteered to institute repairs and the city, following the ordinance, refused to permit them on the grounds that the $52,500 cost of repair exceeded the $1750 value of the building.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.