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MILES v. DISTRICT OF COLUMBIA

January 26, 1973

Anne E. MILES, Plaintiff,
v.
DISTRICT OF COLUMBIA, and John A. Taylor, t/a Southeast Wrecking Company, Defendants


Gasch, District Judge.


The opinion of the court was delivered by: GASCH

GASCH, District Judge.

 This matter came on for consideration on cross-motions for summary judgment by the plaintiff and the defendants District of Columbia and John A. Taylor, t/a Southeast Wrecking Company. Plaintiff originally filed the complaint for money damages alleging that the actions of the defendants in razing her buildings at 1368 and 1370 Kenyon Street were unlawful and constituted a taking of her property without just compensation and without due process of law. The agreed statement of facts discloses that on November 5, 1963, the District of Columbia Board for the Condemnation of Insanitary Buildings, pursuant to D.C. Code § 5-616 et seq., issued an order of condemnation requiring the premises to be put in a sanitary condition or to be demolished and removed. Thereafter, the plaintiff obtained several extensions of time from the Board to make the necessary repairs to the premises. In 1964 the plaintiff secured a loan of approximately $30,000.00 from the Perpetual Building Association for the purpose of making improvements in the buildings. At least $25,000.00 was spent in converting the two four-story dwellings into sixteen apartment units. However, the Board apparently became increasingly dissatisfied with the progress and the extent of the work done and on June 5, 1969, the Board held a meeting where it was determined that the buildings should be processed for demolition. In addition, the Board directed that the plaintiff be advised that the buildings were to be razed. However, at no time after June 5, 1969, did the Board give plaintiff registered or certified mail notice of its determination to demolish her premises. Furthermore, the Board concedes that it never obtained an estimate of how much it would cost to complete the repairs deemed necessary to remedy the insanitary conditions. On October 1, 1969, the defendant District of Columbia awarded a demolition contract to defendant Southeast Wrecking Company. After securing the requisite permits from the District of Columbia, the wrecking company commenced razing the plaintiff's buildings and today only the land remains.

 The plaintiff contends that the Board for the Condemnation of Insanitary Buildings failed to give her the registered or certified mail notice required under D.C. Code § 5-625 of its intention to destroy her buildings due to the conditions that existed in June, 1969. The plaintiff further argues that the Board's actions, including its decision to have the buildings demolished as opposed to completing the repairs and levying the costs of those improvements as a tax against the property pursuant to D.C. Code § 5-622, were unlawful and in violation of the plaintiff's constitutional rights. Finally, in the supplemental memorandum in support of her motion for summary judgment, the plaintiff asserts that the Board's failure to provide her with the opportunity to be heard on the question whether the repairs should be completed or the property demolished constituted an unconstitutional deprivation of property rights and a denial of due process. For the reasons stated herein, the Court concludes that the plaintiff was not afforded the fundamental safeguards of due process of law and, therefore, she is entitled to summary judgment.

 Under its general police power, a local government may prevent an owner of property from allowing it to remain in a condition that harms, or threatens to harm, the public interest. This governmental power includes the authority to destroy private property if such destruction is reasonably necessary to protect the public health and safety. Although each person holds his property subject to this power, the actual existence of a public nuisance is an absolute condition precedent to the exercise of the power. This proposition has been well stated in the following opinion:

 
The common council undoubtedly has the power to abate nuisances, and a dilapidated and vacant building, by reason of fire, and its temporary occupation by disorderly persons and trespassers, and its use as a receptacle of filth, may become a common nuisance as recognized by law. But unless a nuisance, as defined by the common law or by statute, exists, the act of the common council cannot make it one by a mere resolution. Such a doctrine might place the property of the people, no matter what in fact might be its real condition and character, at the disposal of the common council, without compensation.

 Hennessy v. St. Paul, 37 F. 565 (C.C.Minn.1889).

 In the instant case, the record indicates that in the Summer of 1963 the Board for the Condemnation of Insanitary Buildings sent to the plaintiff a notice to show cause why her premises should not be condemned. In accordance with D.C. Code § 5-618, the plaintiff apparently requested and received a hearing regarding the proposed condemnation. Following that hearing, the Board issued a condemnation order in September, 1963, requiring the plaintiff to make such changes and repairs as would remedy the insanitary conditions or to cause her buildings to be demolished and removed within approximately six months. The plaintiff could have appealed this order to the Condemnation Review Board, *fn1" and sought further review before the Superior Court of the District of Columbia. *fn2" Judgments of the Superior Court are, of course, reviewable by the District of Columbia Court of Appeals and ultimately by the Supreme Court of the United States. At this point in time, it cannot seriously be contended that the plaintiff was denied an opportunity to present her position on the question whether the buildings at the time demolition was ordered were in fact a public nuisance. In 1963, the plaintiff chose not to avail herself of the review procedures, but instead decided to secure a $30,000.00 loan and expend almost the entire amount in a good faith effort to bring her buildings into compliance with the law. Due to sporadic vandalism, construction delays, and other causes, the repair process continued for six years until June, 1969, when the chairman and three members of the Board reviewed the case and made an ex parte determination that the buildings be demolished. Under these circumstances, the critical issue is whether due process of law required the defendant Board to accord the plaintiff a hearing in 1969 before making the final decision that the premises either be repaired or demolished.

 Any consideration of what procedures due process may require under a certain set of circumstances necessarily begins with an examination of the nature and importance of the government function involved as well as the individual rights that have been affected by governmental action. Goldberg v. Kelly, 397 U.S. 254, 263, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). See also Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960). It should be emphasized at the outset that the present litigation is not analogous to those emergency situations where summary action by a government agency is justified. *fn3" The subject buildings were not lying in the path of a raging fire, nor were they destroyed to prevent the spread of a contagious disease. On the contrary, the Board apparently felt there was no urgent need for immediate destruction to protect the public interest, since they allowed several years to elapse before ordering demolition. Thus, this case deals with the general power of local authorities to order the demolition of a building without compensation for the purpose of safeguarding the health and safety of the community as against the constitutional rights of the owner. In the absence of exigent circumstances, the government must adhere closely to the demands of rudimentary due process before it can effectuate the condemnation and destruction of a person's property.

 It is a well settled principle of law that the basic requisite of due process is that an "individual be given an opportunity for a hearing before he is deprived of any significant property interest." *fn4" See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Opp Cotton Mills v. Administrator, 312 U.S. 126, 152-153, 61 S. Ct. 524, 85 L. Ed. 624 (1941); United States v. Illinois Central R. Co., 291 U.S. 457, 463, 54 S. Ct. 471, 78 L. Ed. 909 (1938). The Supreme Court has specifically interpreted the Constitution to require "an opportunity which must be granted at a meaningful time and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965) (emphasis added), "for hearing appropriate to the nature of the case," Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950). See also Bell v. Burson, 402 U.S. 535, 541-542, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Boddie v. Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); Goldberg v. Kelly, 397 U.S. 254, 267, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Cf. Blackwell College of Business v. Attorney General, 147 U.S. App. D.C. 85, 454 F.2d 928 (D.C.Cir.1971). The controlling criteria of the Due Process Clause is whether the local government has afforded the individual a "meaningful" opportunity to be heard. In the instant case, the District of Columbia has argued that the plaintiff requested and received a hearing in 1963 and that this hearing satisfied the mandate of the Fourteenth Amendment. The Court is unable to agree that the hearing conducted before the Board in 1963 constituted an opportunity to be heard at a time and in a manner that was meaningful and relevant to the question raised in this suit. Clearly, the passage of six years, the expenditure of substantial sums of money, and the change in conditions almost entirely negated the significance of procedures followed at the very beginning of this case. It is important to note that the plaintiff was originally informed of the proposed condemnation in June, 1963, and that after a hearing, the Board issued a condemnation order in September, 1963. In an effort to rectify the insanitary condition of her property, the plaintiff retained the services of an architect and several contractors and expended at least $25,000.00 over a six-year period. Despite repeated vandalism and customary delays in construction work, the plaintiff demonstrated a constant desire to improve her buildings by converting them into sixteen apartment units. The Board, however, remained dissatisfied with the condition of the premises, and in June, 1969, held an ex parte meeting behind closed doors where it was determined that the buildings be processed for demolition. Unfortunately, at this juncture the Board did not deem it necessary to provide the plaintiff with an opportunity to explain her position that the repairs should be continued rather than have her buildings razed. After six long years and the investment of at least $25,000.00, the substantial change in the character of the property certainly warranted the allocation of a short period of the Board's time whereby the plaintiff could have had the opportunity to present evidence to support her proposition that the repairs be completed. Under these circumstances, the failure of the Board to provide for a hearing at a meaningful time and in a meaningful manner constituted a deprivation of the plaintiff's property and a denial of her right to repair in violation of due process of law.

 Apart from the constitutional requirement of an appropriate and timely hearing, the property rights of an owner of a building protect him from its demolition wherever its demolition is not reasonably necessary to eliminate its insanitary condition. Admittedly, if the structure is in such a state of disrepair or so insanitary as to be unfit for human habitation, or is detrimental to the public safety or welfare, and the problems cannot be corrected at a reasonable expense considering the value of the premises when improved, the local agency may compel the owner to elect whether to repair or destroy the building. Indeed, if the owner refuses to act, the government may destroy the building without compensation, but only when this procedure is reasonably necessary to protect an overriding public interest. The apparent conflict between the right of the owner to repair his property and the interests of the public in removing the building can only be resolved after a careful consideration of all the facts by the decisionmaker. Unfortunately, it is not known upon which facts or legal rules the Board relied in deciding to raze the buildings. The Board's failure to hold a hearing, weigh the contemporaneous evidence, and issue a statement of reasons seriously impugns the validity of its conclusion that the unlawful conditions were best remedied by demolition.

 In another case which shares a similar set of facts, City of Aurora v. Meyer, 38 Ill.2d 131, 230 N.E.2d 200 (1967), a municipality obtained a court order permitting the destruction of a building on the grounds that it was in a dangerous and unsafe condition. The owner appealed the order and the Supreme Court of Illinois held, inter alia, that a fair implication from the statutory language required an affirmative finding that the structure was beyond reasonable repair before authorizing demolition. The reviewing court remarked that a brief order simply concluding that a building is in an unsafe condition does not justify its removal. The Court further stated:

 
The law is well settled that in cases of this nature courts do not go further than is necessary to protect the public interest. Property may be ordered destroyed under certain conditions but only if the danger cannot be abated in any other way. It is only in cases where an absolute necessity exists that courts adopt the drastic method of correction by ordering destruction of the property. ( Childs v. Anderson, 344 Mich. 90, 73 N.W.2d 280; Echave v. City of Grand Junction, 118 Colo. 165, 193 P.2d 277.) In other words the remedy is limited to the necessities of the case. Where hazardous conditions may be remedied by repair without major reconstruction the building may not be destroyed. Albert v. City of Mountain Home, 81 Idaho 74, 337 P.2d 377.
 
Although not expressed in so many words, the plain implication of the act involved here is that if the property can be repaired with comparatively little expense the city ought to adopt this course rather than complete demolition, that only in cases where the structure is substantially beyond repair is an order for demolition contemplated. There are many kinds of deficiencies which would render a building dangerous and unsafe, but which can readily be obviated by appropriate repairs. Inadequate wiring, or a weakened supporting beam as in the case at bar, even if serious enough to sustain a finding that the structure is dangerous and unsafe, would not in many cases warrant complete destruction. The cost of repairs may well be a small fraction of the ...

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