Posted by: Patricia Salkin | March 27, 2015

Third Circuit Court of Appeals Holds Seizure of Owner’s Property Did Not Constitute an Unconstitutional Taking and That There Was No ADA Violation

In May 2008, a storm damaged structures on a property owned by Michael Duffy in Kent County, DE. The Division of Inspections and Enforcement of the Kent County Department of Planning Services deemed several of those structures unsafe and ordered their demolition if the conditions were not corrected. Duffy filed a civil action in the Court of Chancery, and while that lawsuit was ongoing, Duffy was granted a demolition permit but failed to fully raze the structures. As a result, Kent County placed a lien on the property in the amount of $1400, the cost of the demolition. Thereafter, Duffy initiated several lawsuits, including the two District of Delaware cases relevant to his present appeals. In the first case, Duffy, who claims that he is disabled because of Parkinsons Disease, alleged that the Kent County Levy Court and one of its commissioners, P. Brooks Banta, violated the Americans with Disabilities Act (ADA). In the second case, Duffy alleged that Kent County, Banta, and another commissioner, Michael J. Petit de Mange, caused a taking of his property without compensation in violation of the Fifth Amendment, and that the demolition of the structures resulted in an unlawful seizure under the Fourth Amendment.

The court discusses that to establish a prima facie case under the ADA, Duffy must demonstrate (1) that he is a qualified individual with a disability; (2) that the defendants are subject to the ADA; and (3) that he was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of [his] disability. Duffy asserted that Kent County and Commissioner Banta failed to assist him in correcting the violations on his property and denied his request for a trash dumpster. The Director of the Department of Planning Services for Kent County explained in an affidavit that, although the County had provided two dumpsters for a community-organized storm debris clean-up event, it “never provides trash dumpsters at its expense to private land owners for activities that benefit only one person or parcel of land.” Since Duffy offered no evidence indicating that the decision to deny a dumpster was motivated by his disability, the court found this claim was properly dismissed.

As to Duffy’s Fourth and Fifth Amendment claims Duffy had not shown that the lien on his property foreclosed all economically viable uses of the land. Furthermore, the Magistrate Judge properly concluded that the seizure was reasonable because the structures on Duffy’s property posed a danger to the public, and the City acted pursuant to a noticed hearing and a resolution effectuating municipal ordinances. The court therefore held that the dismissal of Duffy’s claims should be affirmed.

Duffy v Kent County Levy County, 591 Fed. Appx. 41 (3rd Cir. CA, unprec. 11/14/2014)

The opinion can be accessed at:

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