City Of Philadelphia Oversteps Its Bounds In Pursuit Of Blight
Written by: Alan Nochumson
In 2007, I wrote an article titled “Fighting Blight,” explaining the consequences of a ruling handed down by the U.S. District Court for the Eastern District of Pennsylvania in Gariffo Real Estate Holdings v. City of Philadelphia and how the city of Philadelphia may, in the exercise of its inherent power of protecting residents from unsafe property conditions, demolish properties that are in danger of imminent collapse.
In Gariffo, the federal district court decided that the city is entitled to charge the property owner for the cost of demolition. At the conclusion of my 2007 article, I warned that the city is walking a fine line between a citizen’s constitutional rights and the city’s interest in the health and safety of its citizens. In Bullard v. City of Philadelphia, that same federal district court dealt with a situation where the city overstepped its bounds in pursuit of blight.
In Philadelphia, the Emergency Service and Abatement Unit, a subdivision of the city’s Department of Licenses and Inspections (L&I), is responsible for both a visual inspection and demolition of building structures it determines are “unsafe” or “imminently dangerous.” The difference between an “unsafe” versus “imminently dangerous” classification is whether the structural components are deteriorating, or have failed and are in danger of collapse. In addition,
L&I is required to provide a property owner with 30 days to comply with an “unsafe” determination, and 10 days for an “imminently dangerous” one. If the property owner fails to comply within the time allowed, the city may demolish or repair the building structure at the property owner’s expense.
In Bullard, the property owner, Shawn Bullard, had recently purchased a property from the estate of the individual who was the record owner of the property. Bullard intended to renovate the property.
Prior to his purchase, Bullard applied for a building permit with the city, but that application was denied because, several days earlier, the property was cited by the city by way of a violation notice. At the time, Bullard was not advised that the city had classified the property as being “imminently dangerous.” Instead, the city had mailed the violation notice to the record owner of the property at the time, Frankie Thompson, who, unbeknownst to the city at the time of mailing, was deceased.
Several days later, but prior to Bullard’s purchase of the property, the city’s inspector visited the property after receiving a complaint about the condition of the property. At the time of his inspection, the city’s inspector was unaware that a violation notice had previously been issued against the property, classifying the property as being “imminently dangerous.” The city’s inspector independently determined that the property was “unsafe” and immediately affixed a violation notice to the property, which boldly stated that the property owner had 30 days to demolish or repair the property because the city had deemed the property as being “unsafe.”
Bullard was at the property when the violation notice was affixed to the property.
The next day, the city mailed another copy of the violation notice to the late but still record owner of the property, Thompson. That same day, the soon-to-be property owner, Bullard, retained the services of an engineer to inspect the property.
After purchasing the property, Bullard met with the city’s inspector and others on several occasions to determine how to remediate the issues with the property. Bullard was advised that he had to follow his engineer’s recommendations to repair the property and to complete the repair work before he could obtain the permits to renovate the property.
Less than two weeks after the city had affixed the violation notice to the property deeming the property as being “unsafe,” and less than 30 days after the city initially classified the property as being “imminently dangerous,” the city informed Bullard that it intended to demolish the property the following day. According to the city, Bullard was undermining the integrity of the building structure by renovating the property at the same time as making the recommended repairs to the property.
The following day, Bullard attempted to demolish the property himself, since he did not wish to incur the city’s demolition costs. Bullard, however, was prevented from doing so. Instead, to Bullard’s chagrin, the property was demolished by the city.
Bullard then filed a lawsuit against the city under Section 1983 based, upon other things, the city violating Bullard’s procedural due process rights under the 14th Amendment to the U.S. Constitution.
The federal court subsequently granted summary judgment in favor of Bullard and against the city on the grounds that the city had, indeed, violated Bullard’s procedural due process rights under the 14th Amendment.
Procedural due process does not require the recipient to receive actual notice, just one reasonably calculated to apprise the recipient of the pending governmental action.
The federal district court found that Bullard was not provided with adequate notice.
As the federal district court pointed out, L&I requires its inspectors to confirm if the property owner received the violation notice. Moreover, the federal district court noted that L&I is obligated to determine whether the property has been sold and, if so, to not only provide the new property owner with the violation notice, but the city also had to update the new owner’s information into the city’s database as to that property.
According to the federal district court, Bullard had only known that the property was “unsafe” and no representative from the city had informed him that the property was actually categorized as being “imminently dangerous” or that he had a right to appeal the city’s determination, even though he met with representatives from the city on several occasions.
The federal district court stated that, under Pennsylvania law, when a property owner is notified that the property is a nuisance to the public, the city is obligated to specify the repairs necessary to abate the nuisance and require completion of such repairs “within a reasonable time not less than 30 days from date of service.
As indicated by the federal district court, the city provided the former and present property owners with less than 30 days to so repair the property before the property demolition occurred.
In a footnote, the federal district court chastised the city’s attempted service of the violation notice which had classified the property as being “imminently dangerous.” The federal district court indicated that the city should have forwarded that violation notice to the present property owner when the city realized that the former property owner of record was deceased (and, thus, could not receive the violation notice), and the property had been sold to the present property owner.
The federal district court hypothesized that, even if the city had forwarded the violation notice to Bullard (which it did not), the city ran afoul of its obligation under Pennsylvania law by failing to give the requisite 30 days from the date the violation notice was issued, let alone served.
LESSONS LEARNED
The federal district court’s ruling in Bullard clearly indicates that the city must tread lightly before demolishing a property within the city limits. If the city does, the result will be similar to Gariffo. If the city does not, the city will find itself on the losing end of a lawsuit, as illustrated by the federal district court’s ruling in Bullard.
Reprinted with permission from the October 2, 2012 edition of The Legal Intelligencer © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
