A private landowner, Hussein, hired contractors who failed to follow the City of Perrysburg’s zoning ordinances which ultimately resulted in a “stop work” order on construction. Hussein later sought to make his driveway safer by hiring a new contractor to put a temporary thin layer of asphalt over his driveway. While laying down the asphalt, the city’s administrator for planning, zoning, and economic development along with two police officers informed the new contractor that a stop work order had been issued on the property and that he must discontinue the construction and remove the asphalt or he would have to go to court and be fined. Hussein then filed suit against the City alleging that the defendants violated his procedural and substantive due process rights by ordering the contractor to remove the temporary asphalt layer. The district court concluded that the Husseins had produced sufficient evidence to show that they had a protected property interest in the asphalt that was laid down on their driveway and that the defendants had deprived them of that interest by ordering the asphalt removed and that this deprivation was arbitrary and capricious and was conducted without granting the Husseins any notice or opportunity to be heard. The City of Perrysburg then appealed arguing that they were entitled to qualified immunity because their actions did not violate the Husseins’ due process rights.
The Court of Appeals held that the City is entitled to qualified immunity because state officials are permitted under the Constitution to inform citizens of the official’s view that they are violating state or local law. The court further provided that state officials are also permitted to threaten litigation or prosecution if citizens do not agree to conform their actions to state or local law. The court also held that the defendant did not violate plaintiffs’ substantive due process rights as the asphalt driveway incident did not implicate specific constitutional guarantees.
Hussein v. City of Perrysburg, 2010 WL 3271727 (C.A. 6th Cir. 8/20/2010).
The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/10a0255p-06.pdf
