Blanchard v. City of Ralston

• Decision Date: 28 May 1996
• Docket Number: No. A-94-1142,A-94-1142
• Citation: 549 N.W.2d 652,4 Neb.App. 692
• Parties: Marsha J. BLANCHARD, individually and as Personal Representative of the Estate of Mary A. Reardon, deceased, Appellant, v. CITY OF RALSTON, a political subdivision of the State of Nebraska, Appellee.
• Court: Nebraska Court of Appeals

Page 652

549 N.W.2d 652

4 Neb.App. 692

Marsha J. BLANCHARD, individually and as Personal Representative of the Estate of Mary A. Reardon, deceased, Appellant, v. CITY OF RALSTON, a political subdivision of the State of Nebraska, Appellee.

No. A-94-1142.

Court of Appeals of Nebraska.

May 28, 1996.

Syllabus by the Court

1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless they are clearly erroneous.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Municipal Corporations: Nuisances: Liability: Property: Due Process. In order for a city to properly exercise its police power in the destruction of a nuisance so as to avoid liability for taking an owner's property, the city must first provide the owner with sufficient due process.

4. Due Process. The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law.

Mandy L. Strigenz, of E. Terry Sibbernsen, P.C., Omaha, for appellant.

Eugene P. Welch and Francie C. Riedmann, of Gross & Welch, P.C., Omaha, for appellee.

MILLER-LERMAN, C.J., and IRWIN and MUES, JJ.

MUES, Judge.

Marsha J. Blanchard appeals the decision of the district court for Douglas County which denied her claim for damages under the theory of inverse condemnation against the City of Ralston.

STATEMENT OF FACTS

On August 11, 1987, Mary A. Reardon, the owner of a house located at 4903 South 77th Avenue in Ralston, Nebraska, passed away. Reardon's husband had predeceased her, and the couple had one child, Marsha J. Blanchard. Blanchard, who was named personal representative of Reardon's estate, was to receive the house under Reardon's last will and testament. In February 1988, Blanchard, who was separated from her husband, moved into the house with her four children. In June 1990, the children went to live with their father in Valley, Nebraska. Blanchard remained in the house until October 1990, when she left to join her husband and children in Valley.

Due to Blanchard's financial difficulties, the electricity in the house had been shut off in the spring of 1990. At the time Blanchard moved out of the house in October, she had received a final notice that the water in her house would also be shut off. Blanchard and her husband returned to the house periodically during the fall of 1990. Blanchard's husband returned to the house in December after Blanchard was contacted by the Ralston Police Department concerning complaints about animal noises at the house. These complaints were responded to and resolved.

City's Investigation and Actions.

The events salient to this appeal began on February 28, 1991, when Ralston police Lt. William White received a complaint that a hissing sound was coming from the house. In his investigation of the house, Lieutenant White discovered a water leak in the basement and standing water in the basement area. Upon entering the house, Lieutenant White found mold covering the walls and carpet, dirty dishes in the kitchen, and old furniture and other items thrown in disarray. In Lieutenant White's opinion, the house was a " 'health nuisance.' " Lieutenant White's report indicated that the house was "[c]urrently titled to REARDON, MARY A. and is in probate at this time."

The information regarding the house was relayed to Mayor Julie Haney of Ralston. On March 8, 1991, Mayor Haney sent a letter to the Douglas County Health Department requesting someone to assist the Ralston building inspector on an inspection of the house. Mayor Haney also contacted the city building inspector, Boyd and Associates, and an appraisal firm, Hyatt and Associates. On April 25, the acting building inspector, William Churchill; Lieutenant White; and a Douglas County health inspector, Obert Lund, entered the house to make an inspection.

In a letter to Mayor Haney dated April 30, 1991, Lund noted that the house was full of moisture, with mold and mildew covering the ceilings and walls. In addition, Lund stated the carpets were covered with feces, fungi, and garbage. Lund also found that there was a strong odor inside the house which permeated into the surrounding neighborhood. In the letter, Lund expressed his opinion that "[t]his structure constitutes a public health hazard and action must be taken as soon as possible to abate the problem."

At trial, Lund testified that he was concerned that the house was not secured because the front door was broken. Lund also testified that he was worried that the increase in temperature which was expected in the upcoming months would produce additional growth in the fungi. Indeed, Lund had again inspected the house on May 16, 1991, and found that conditions had further deteriorated. Lund testified at trial that the house posed possible health hazards such as E. coli bacteria in the feces, viruses in the water such as Legionnaires' disease, and airborne spores that could be breathed into the lungs or picked up through the skin. However, before the city council on May 16, Lund stated that the condition of the house could result in "various type illnesses which, since I'm not a doctor, I'm not qualified to go into that area, but generally speaking, we are talking about spores and bacteria and viruses that if ingested into the lungs could make people ill."

Churchill, the building inspector, testified at trial that 50 percent of the walls were covered with mold, the upstairs carpeting was "squishy," and there was standing water in the basement. Churchill also testified that it was his opinion that the south and west Mayor Haney also inspected the house sometime in April 1991. Based on what she saw, the reports of Churchill and Lund, her concerns for the neighbors, and the fact that the weather was warming up, Mayor Haney determined that an emergency situation existed and that the house should be demolished. Mayor Haney testified at trial that she came to this conclusion sometime after April 26, 1991. On May 1, Ralston City Attorney Patrick Heng informed Mayor Haney that he had given permission to a neighbor to remove a birdbath from the property so that it would not be " 'bulldozed.' " A Ralston City Council meeting was held on May 7 at which the procedure for the demolition of the house was discussed. The procedure consisted of (1) posting notice on the house, (2) waiting 3 days, and (3) demolishing the house. Heng then prepared a notice that was posted at the premises on May 8. The notice stated:

walls in the basement were at the point of failure. The south wall had cracks running across it that were at some points more than half an inch wide, and the wall itself had moved inward 3 or 4 inches. The joists were saturated with moisture and were white with fungus, and Churchill did not believe that they were structurally sound. In a letter to Mayor Haney dated April 26, 1991, Churchill concluded that the building was unsafe as defined by Ralston Mun.Code § 9-401 and further opined that it should be demolished and removed pursuant to Ralston Mun.Code § 9-405.

TO: OWNER, OCCUPANT OR INTERESTED PARTIES OF THESE PREMISES

You are hereby notified that this house has been determined to be an unsafe building and a nuisance after inspection by the Ralston Police Department. The causes for this decision are the odor and health hazard present in this house.

You must remedy this condition or demolish the building within three (3) days from the date of posting of this Notice or the Municipality will proceed to do so. Appeal of this determination may be made to the Governing Body, acting as the Board of Appeals, by filing with the Municipal Clerk within ten (10) days from the date of posting of this Notice a request for a hearing.

Notice to Blanchard.

Blanchard was not served personally with the above notice. Moreover, she had not been contacted in February 1991 when the water leak was first discovered. Blanchard testified that the first contact she received concerning the house after the December 1990 animal complaint was when Lieutenant White called her husband's place of work and left a message to call "Connie" at city hall. Blanchard testified at trial: "I'm not sure about the exact date. It would have been late March, early April, sometime [in] that time span." However, evidence contained in a summary of events compiled by a city official indicates that the call was made on April 25, 1991, and Lieutenant White confirmed in his deposition that he contacted Blanchard's husband on that date.

The evidence shows that Blanchard phoned city hall on April 29, 1991, and spoke with Connie Kompare, the administrative assistant to the mayor. Blanchard testified that Kompare told her that there had been some water damage to the house and that there was going to be a "meeting" to discuss condemning the house. Blanchard stated that Kompare did not inform her of when the meeting would be held. Further, Blanchard testified that she provided Kompare with her address at that time. Kompare told Blanchard that Blanchard would need to contact the city attorney, Heng, for more information. Other evidence indicates that Kompare told Blanchard during that conversation that the house was in the process of condemnation and would be demolished, that Blanchard provided Kompare with a mobile phone number, and that this number was then provided to Heng.

Despite several attempts to reach Heng by phone, Blanchard does not recall ever making contact with Heng. However, Heng testified that Blanchard had phoned him sometime prior to the posting of the notice on May 8, 1991. Heng estimated the date of the call to have been 2 to 3 weeks before the house was demolished. Heng testified that Regarding general efforts to notify the owner of the house, Heng testified that...