Posted by: Patricia Salkin | July 12, 2014

Sixth Circuit Finds that the Demolition of a Building did not Constitute an Illegal Taking or Violate Substantive Due Process

The purchaser of commercial property which had been condemned as a public nuisance, and a construction company hired to construct improvements on the condemned land, brought a § 1983 action against the city and city officials, alleging that improvements were razed while an appeal from the city’s denial of a building permit application was pending. The United States District Court for the Northern District of Ohio granted summary judgment to the defendants and the purchaser and construction company appealed. The plaintiffs first argued that the City demolished the Property as they were navigating the permit and application process and, by using the 1998 condemnation notice as the basis for the property’s 2009 demolition, the City deprived them of their substantive due process rights. They further argued that the demolition constituted an unconstitutional taking.

Addressing these complaints the court first noted that Ohio R.C. § 715.26 authorizes a City to provide for the demolition of an unsafe structure that is a public nuisance if the owner fails to provide the notice to repair, rehabilitate or demolish the structure. The demolition of a nuisance is not an unreasonable and arbitrary official act that may not take place no matter what procedural protections accompany it. The City had the authority to demolish the Property to abate a nuisance and Plaintiffs had ample notice and opportunity to challenge the City’s intended action. Plaintiffs were granted a public hearing at which they were represented by counsel. The court found that the plaintiffs failed to complete the administrative appeal process, which although still pending when the building was demolished, could nevertheless have resulted in a reversal of the findings underlying the condemnation order. Accordingly, the court held that the demolition did not violate substantive due process, and the demolition did not violate the takings clauses of state and federal constitutions.

Embassy Realty Investments v City of Cleveland, 2014 WL 3376900 (6th Cir. 7/10/2014)

The opinion can be accessed at:

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