Bolden v. City of Topeka
| Decision Date | 28 April 2008 |
| Docket Number | Civil Action No. 02-2635-KHV. |
| Citation | 546 F.Supp.2d 1210 |
| Parties | James L. BOLDEN, Plaintiff, v. The CITY OF TOPEKA, Defendant. |
| Court | U.S. District Court — District of Kansas |
Caleb Stegall, The Stegall Law Firm, Perry, KS, for Plaintiff.
Mary B. Mudrick, City of Topeka, Legal Department, Topeka, KS, for Defendant.
Under 42 U.S.C. § 1983, James L. Bolden brings suit against the City of Topeka, Kansas alleging violation of his right to substantive due process under the Fourteenth Amendment. This matter comes before the Court on a bench trial, which the Court conducted on March 11, 2008. The Court finds that the City is entitled to judgment and makes the following findings of fact and conclusions of law, as required by Rule 52(a)(1) of the Federal Rules of Civil Procedure.
Plaintiff challenges the constitutionality of a local ordinance which allowed the City to demolish his uninhabitable properties on a finding that the repair costs of the respective properties exceeded 15 per cent of their replacement value. The Court will first set forth facts concerning the City's adoption of the 15 per cent demolition threshold, then facts concerning the City's regulation of unsafe property in general and the City's demolition of plaintiff's property in particular.
In 1955, the Kansas legislature enacted the urban renewal law, K.S.A. § 17-4742 et seq., which authorizes municipalities to adopt ordinances relating to repair and demolition of unsafe structures, see id. § 17-4759. Under the urban renewal law, municipalities are empowered to create standards for determining whether subject properties are unfit for human use or habitation, see id. § 17-4759(c), and to order the repair or demolition of properties found to be unfit, see id. § 17-4759(b)(3).
As authorized by the urban renewal law, the City adopted an unsafe structures code which provides generally that
the city council has found that there exist[] within the corporate limits of the city structures which are unfit for human use or habitation due to dilapidation, defects increasing the hazard of fires, accidents or other calamities, lack of ventilation, light or sanitary facilities or other conditions ... which render such structures unsafe, unsanitary or otherwise inimical to the welfare of the residents of the city, [and] it is hereby deemed necessary by the council to require or cause the repair, closing or demolition or removal of such structures in the manner provided in this article.
Topeka, Kan., Code art. XI, § 26-546.1 The unsafe structures code deems a structure to be uninhabitable when certain conditions are present, as follows:
(1) Whenever the building or structure, or any portion thereof, because of (i) dilapidation, deterioration or decay; (ii) faulty construction; (iii) the removal, movement or instability of any portion of the ground necessary for the purpose of supporting such building; (iv) the deterioration, decay or inadequacy of its foundation or (v) any other cause, is likely to partially or completely collapse;
(2) Whenever any portion thereof has been damaged by fire, tornado, wind, flood or by any other cause, to such an extent that the structural strength or stability thereof is materially less than it was before such catastrophe and is less than the minimum requirements of the building code for new buildings of similar structure, purpose or location;
(3) Whenever any portion or member or appurtenance thereof is likely to fail, or to become detached or dislodged, or to collapse and thereby injure persons or damage property;
(4) Dilapidation, disrepair or structural defects;
(5) Whenever any portion of a building, or any member, appurtenance or ornamentation on the exterior thereof is not of sufficient strength or stability, or is not so anchored, attached or fastened in place so as to be capable of resisting a wind pressure of one half of that specified in the building code for new buildings of similar structure, purpose or location without exceeding the working stresses permitted in the building code for such buildings;
(6) Defects therein increasing the hazard of fire, accident or other calamities;
(7) Walls, sidings or exteriors of a quality and appearance not commensurate with the properties in the neighborhood which creates an unsightly appearance and causes a blight to adjoining properties and the neighborhood;
(8) Failure to meet the minimum housing standards established by chapter 82, article II of the Code of the City of Topeka; or
(9) Any violation of fire or building or regulations which renders the structure unsafe.
Topeka, Kan., Code art. XI, § 26-550.
The urban renewal law originally instructed municipalities to order repair of uninhabitable properties which could be made habitable "at a reasonable cost in relation to the value of the dwelling," and to order demolition of uninhabitable properties which could not be so repaired. See 1955 Kan. Sess. Laws 207. In 1998, the Kansas legislature amended the urban renewal law to require municipalities to order repair of uninhabitable property if repair can be made "at a reasonable cost in relation to the replacement value of the structure" (as opposed to "the value of the dwelling") and to order demolition if it cannot. 1998 Kan. Sess. Laws 988-89. The urban renewal law requires municipalities to "fix a certain percentage of such cost as being reasonable." K.S.A. § 17-4759(b)(3)(A)-(B).
After the Kansas legislature amended the urban renewal law to require the use of a ratio of repair cost to replacement value — rather than a ratio of repair cost to appraised value — the City undertook to amend its unsafe structures code to conform to state law. As part of this process, the City code compliance service prepared for the City council a matrix which detailed the practical affect of various percentages which might be used in the amended code. The matrix contained a "whole assortment of percentages" which the council members discussed at two work sessions.
On October 27, 1998, the City council held a meeting to determine which percentage it would adopt to decide whether to order repair or demolition of uninhabitable property. As originally drafted, the amended code proposed a 10 per cent demolition threshold. At the meeting, the council first considered raising the threshold to 15 per cent. The councilman who proposed 15 per cent referenced a list of 39 properties which would be demolished under the 10 per cent threshold and explained that 33 of those properties would survive a 15 per cent threshold. The councilman concluded that the change to 15 per cent would "increase property rights significantly." The council voted seven to two in favor of the 15 per cent threshold.2
Later in the meeting, the council considered increasing the demolition threshold to 25 per cent. The councilman who had proposed the 15 per cent threshold argued against the increase. Specifically, he cited a list of 21 uninhabitable properties and explained that the 25 per cent threshold would save only one more property than the 15 per cent threshold. He argued that a lower demolition threshold would more strongly encourage property owners to maintain their property. The council voted seven to two against the 25 per cent threshold, leaving the 15 per cent threshold in place. After the council rejected the 25 per cent threshold, then-mayor Joan Wagnon, who presided over the meeting, explained that "the reason this is a tough decision right now is we're the first City to try and bring our ordinance in line with the new state law that's passed and it's been difficult to determine what that equitable percentage is."
Ultimately, the council voted eight to one to adopt the entire amended unsafe structures code, including the 15 per cent demolition threshold. As amended, the unsafe structures code permitted an administrative hearing officer to order repair or demolition of uninhabitable property as follows:
(a) ... [I]f the administrative hearing officer determines that the structure ... is unfit for human use or habitation or otherwise endangers the life, health, property or safety of its inhabitants or the public, the administrative hearing officer ... shall issue ... an order which:
(1) If repair, alteration or improvement of the structure can be made at a reasonable cost in relation to the value of the structure, which cost shall not exceed 15 percent of the replacement value of such structure as established by the Shawnee County Appraiser, the owner of the structure shall, within the time specified in the order, repair, alter or improve such structure to render it fit for human use or habitation; or
(2) If repair, alteration or improvement of the structure cannot be made at a reasonable cost in relation to the replacement value, that is to say, 15 percent or less of the replacement value of such structure, which percentage is hereby deemed to be a reasonable standard by which to require either repair, alteration or improvement, or removal or demolition, the owner shall within the time specified in the order remove or demolish such structure. * * * Topeka, Kan., Code art. XI, § 26-551.3
In 1999, the City formed a committee to study the health of its neighborhoods. As part of the committee's work, City planners drafted a comprehensive metropolitan plan which included a policy framework for sustaining livable neighborhoods through the use of public and private resources. The City council adopted the plan in July of 2000 and under the plan's framework, began characterizing City neighborhoods as "healthy," "out patient," "at risk" or "intensive care." Intensive care neighborhoods are those in the most serious distress and contain the largest number of vacant and boarded-up houses.4 At trial, several City...
To continue reading
Request your trial
-
Bonner v. City of Brighton
...result of some “whimsical ipse dixit.” Yankee Springs Twp., 264 Mich.App. at 609, 692 N.W.2d 728.8 See, also, Bolden v. City of Topeka, 546 F.Supp.2d 1210, 1218–1219 (D.Kan.2008) (rejecting a substantive due process challenge to an ordinance that had a no-repair cost threshold of 15 percent......