186 F.3d 601 (5th Cir. 1999), 160;

Docket Nº:160;
Citation:186 F.3d 601
Party Name:Freeman v City of Dallas
Case Date:August 18, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 601

186 F.3d 601 (5th Cir. 1999)

Charles Freeman and Rosalyn Brown, Plaintiffs-Appellees-Cross-Appellants,

v.

City of Dallas, Defendant-Appellant-Cross-Appellee.

No. 97-10907

UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

August 18, 1999

Page 602

Appeals from the United States District Court for the Northern District of Texas

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

This case presents the questions of whether the seizure and destruction of the Plaintiffs' vacant apartment buildings by the City of Dallas, as "urban nuisances," based only on the findings and order of a panel of the City's Urban Rehabilitation Standards Board: (1) violated the Due Process Clauses of the Fifth and Fourteenth Amendments because the owners were not given an opportunity for an adversary hearing before a neutral magistrate and a judicial determination prior to the seizure and destruction of their real property; and (2) violated the Fourth Amendment, because the City seized and destroyed the Plaintiffs' property without a warrant issued by a magistrate based on a finding of probable cause.

A majority of this panel holds that the notice and hearings provided by the City satisfied the constitutional Fifth and Fourteenth Amendment's guarantees against deprivation of property without due process of law. A different majority of this panel holds that the Fourth and Fourteenth Amendments were violated when the City seized and destroyed the Plaintiffs' property without a warrant issued by a judicial officer based on probable cause. The district court's judgment reaching the same results is affirmed.

I. FACTS AND PROCEDURAL HISTORY

Charles Freeman and Rosalyn Brown owned two apartment buildings in Dallas,

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Texas. Ms. Brown bought the building located at 2621 Meyers Street on December 26, 1992, and filed a warranty deed in the Dallas County Deed Records on July 1, 1993. Ms. Brown bought the building located at 2611 Meyers Street on April 11, 1993, and filed a warranty deed on August 3, 1994. Warranty deeds were filed on August 11, 1994, in which Ms. Brown transferred a one percent undivided interest in both buildings to her brother, Charles Freeman. The buildings were vacant when Ms. Brown bought them and remained unoccupied until they were demolished.

The City of Dallas established the Urban Rehabilitation Standards Board (URSB) to determine whether property condition reports by city inspectors constitute violations of the City's building code. The URSB is composed of 30 members (and 8 alternates) who are appointed by the Dallas City Council. The URSB may determine, after a hearing, whether a given structure is an "urban nuisance" and take various remedial measures. The URSB is authorized by city ordinance to order repairs, receivership, the closing and vacating of buildings, demolition, and civil penalties up to $2,000 a day against property owners who fail to repair or demolish a structure after a valid determination and order has been issued by the URSB. Dallas City Code, ch. 27, art. II, § 27-8.

In April and July of 1993, City code inspectors from the Department of Housing and Neighborhood Services reported to the URSB that the Plaintiffs' two apartment buildings were in violation of the City's building code. According to the inspectors the 2611 Meyers Street building was in need of repairs estimated to cost $84,290.00, and the 2621 Meyers Street building needed repairs costing $108,680.00.

The URSB scheduled hearings to determine whether the buildings were in violation of the city building code and whether remedial steps should be taken. The URSB functions through hearing panels composed of members of the URSB. The Dallas City Code establishes the procedure to be used by the panels. At a hearing "an owner, lessor, occupant, or leinholder may present witnesses in his own behalf and is entitled to cross-examine any witnesses appearing against him." Dallas, Tex., Code ch. 27, art. II, § 27-9(c). The decision of a hearing panel is final except that rehearings may be granted in certain instances. Also, the code authorizes an affected property owner to appeal from the panel decision to the state district court for a "limited hearing under the substantial evidence rule." Id. § 27-9(e).

Notice of the URSB panel hearings with respect to the Plaintiffs' two buildings were mailed to the persons listed as owners on the title records. With regard to the building at 2621 Meyers Street, the City sent notices to Rosalyn Brown and K.K. Stanfield (the previous owner) of the panel hearing "To Consider an Order of Repair or Correction of a Potential Urban Nuisance." Ms. Brown signed the return receipt on February 28, 1994. This notice listed all of the possible actions that the URSB could take, including demolition: "If the board orders demolition, closure, vacation or removal, and if it is done by city forces, you will be required to pay for the expenses or a lien will be placed against the property." This notice concluded by stating, "It is important that you attend this hearing or send a representative." With regard to the structure at 2611 Meyers Street, an identical notice was sent to the person listed as the owner on the title, Robert Burkhead. Ms. Brown had purchased the property but had not yet filed her warranty deed. It appears that neither Burkhead nor the Plaintiffs received advance notice of the hearing with respect to the 2611 Meyers Street building, but Mr. Freeman learned that it was also involved when he attended the hearing in response to the notice sent to Ms. Brown concerning the 2621 Meyers Street property.

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At the hearing concerning the two apartment buildings on February 28, 1994, Mr. Freeman testified and was questioned by the panel members. The panel looked at pictures of the structures, questioned Mr. Freeman about what plans he had to repair them, and asked whether he had the money or the time to accomplish the tasks. Mr. Freeman testified that he intended to repair the buildings himself and requested the panel to allow him sufficient time to do so. The panel members voiced their concerns about Mr. Freeman's ability to obtain the repair materials and his ability to renovate them by himself. The panel voted unanimously to demolish both structures.

Following this hearing, Freeman signed two notices of demolition for both apartment buildings. The City then sent out a "Notice of Demolition Order" for each building. As to the 2611 Meyers Street structure, the City sent notices to Freeman and Robert Burkhead. Freeman signed the return receipt on March 11, 1994, but Burkhead's notices were returned "Attempted--Not Known." Notices of a demolition order were sent to Rosalyn Brown and Charles Freeman as to the URSB's action concerning the 2621 Meyers Street building. Freeman signed return receipts of the notices on March 11, 1994. Each notice stated that the owners "may exercise your right to an administrative rehearing and review of this demolition order."

Mr. Freeman asked for and received a rehearing from the URSB on May 23, 1994. At the rehearing, the URSB members questioned Mr. Freeman about the two buildings, whether he had the materials to repair them, and whether any repairs had been made to the buildings since the last hearing. Mr. Freeman stated that had received some donated materials and he submitted pictures of one unit in the 2621 Meyers Street building that he had repaired. Several members of the URSB panel expressed disbelief that Mr. Freeman could renovate the units for $2000 each as he claimed. The URSB panel again voted to demolish both structures -- the vote was unanimous as to the 2611 Meyers Street building, and it was five to two as to the 2621 Meyers Street building.

On the day of the hearing, Mr. Freeman signed the "Notice of Demolition" of both the 2611 and 2621 Meyers Street buildings. Neither Freeman nor Brown appealed the URSB panel decision to the state district court. A notice entitled "Appeal Denied/Demolition" was sent to the owners of each building. Notice of the proposed demolition of 2611 Meyers Street was mailed to Freeman and Burkhead; notice of the proposed demolition for the other building was mailed to Freeman and Brown. Even though the notices for Freeman and Brown were sent to the same addresses at which they had received mail about earlier hearings, all of these were returned as "Unclaimed." No further notice was given to the Plaintiffs before the buildings were demolished in late December 1994. The costs of demolition by the City were assessed against Freeman and Brown in the amounts of $7954.72 for the building at 2611 Meyers Street and $7655.55 for the 2621 Meyers Street property.

On April 23, 1996, Freeman and Brown brought suit against the City of Dallas under 42 U.S.C. § 1983 in federal district court. Freeman and Brown contended that the City violated their rights under the Fourth, Fifth, and Fourteenth Amendments because the City did not provide adequate due process prior to demolishing the apartment buildings, did not obtain a warrant before seizing and destroying Plaintiffs' buildings, and did not provide any due process to the Plaintiffs prior to placing a lien against the property for the costs of demolition.

On cross motions for summary judgment, the trial judge partially granted Plaintiffs' motion, concluding that the City had violated the Fourth and Fourteenth Amendments by seizing and destroying Plaintiffs' buildings without a judicial warrant

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based on probable cause, and partially granted the City's motion by rejecting the Plaintiffs' Fifth and Fourteenth Amendments' due process...

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