Brown v. City of Hartford

• Decision Date: 27 October 2015
• Docket Number: No. 36360.,36360.
• Citation: 127 A.3d 278,160 Conn.App. 677
• Parties: Dermoth H. BROWN v. CITY OF HARTFORD.
• Court: Connecticut Court of Appeals

160 Conn.App. 677

127 A.3d 278

Dermoth H. BROWN

v.CITY OF HARTFORD.

No. 36360.

Appellate Court of Connecticut.

Argued May 18, 2015.

Decided Oct. 27, 2015.

S. Zaid Hassan, for the appellant(plaintiff).

Jonathan H. Beamon, senior assistant corporation counsel, for the appellee(defendant).

DiPENTIMA, C.J., and LAVINE and MULLINS, Js.

LAVINE, J.

This case pits two important legal principles against one another: the right of property owners to notice prior to the taking of their property and the imperative of protecting the public from dangerous conditions posed by decrepit structures.The principal issue in this appeal is whether the defendant, the city of Hartford(city), violated the due process rights of the plaintiff, Dermoth H. Brown, when, without a predeprivation hearing, it demolished certain improvements to his real property that a city building inspector determined were in immediate danger of falling so as to endanger life.The United States Supreme Court has "recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause."Gilbert v. Homar,520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120(1997).Under the circumstances of this case, we conclude that the city's actions were constitutional given the threat of imminent harm to persons posed by the plaintiff's property.We therefore affirm the judgment of the trial court.

The plaintiff appeals from the judgment rendered in favor of the city, following a trial to the court.On appeal, the plaintiff claims that the court improperly (1) concluded that § 9–54 of the Hartford Municipal Code is constitutional, (2) denied his motion to disqualify the city's legal counsel, (3) denied him a jury trial, (4) concluded that his due process rights were not violated, (5) afforded improper deference to certain testimony, and (6) found that he had suffered no pecuniary damages.We disagree.

The following procedural history is relevant to our resolution of the plaintiff's claims.The plaintiff, acting on his own behalf, commenced the present action in May, 2011, and through counsel filed an eight count, second amended complaint on February 28, 2013.¹The plaintiff alleged that on May 22, 2009, without giving him actual or constructive notice, the city entered property he owned at 3372–3374 Main Street and 3364–3366 Main Street (collectively, premises) in Hartford and demolished porches and a stairway that were appurtenant to the main structures.²He also alleged that he operated businesses from the premises and that the demolition rendered the premises unusable.He further alleged that the demolition violated § 9–52(a) of the Hartford Municipal Code(city code), which required that the city notify him of the dangerous condition on his property prior to demolition, and, therefore, he was denied his right to due process.Moreover, the plaintiff alleged that the premises were not in a dangerous or unsafe condition and that as a result of the demolition, he suffered pecuniary damages.

The court, Hon. Richard M. Rittenband, judge trial referee, tried the case on five days in June and July, 2013.The parties agreed that the court should bifurcate the claims alleged in the second amended complaint by determining first whether § 9–54 of the city code was constitutional before adjudicating the plaintiff's other claims.In a memorandum of decision issued on August 16, 2013, the court concluded that § 9–54 was constitutional and, consequently, rendered judgment in favor of the city on count eight.The parties then submitted posttrial briefs.The court rendered judgment in favor of the city on the remaining counts in a memorandum of decision issued on November 12, 2013.The plaintiff appealed to this court.

The court made the following findings of fact and conclusions of law in its memorandum of decision.On May 22, 2009, the plaintiff was the owner of 3364–3366 Main Street (3364–3366) and 3372–3374 Main Street (3372–3374).The court found that the first floor of 3364–3366 contained an office for a liquor import business owned by the plaintiff, while the second and third floors each housed an unoccupied residential tenement.The first floor of 3372–3374 contained a florist shop owned and operated by the plaintiff, the second floor housed a hairdresser, and the third floor a residential tenement.

At approximately 10 a.m. on the day in question, Adrien Shepard, a field supervisor for Connecticut Natural Gas went to the premises and observed that gas service was "going from one building to another."Martin Jones, a lieutenant in the Hartford Fire Department who conducts investigations for city code enforcement, was called to the premises.Jones observed that gas and electric services were "going from one building to another."He took numerous photographs of the premises that were admitted into evidence.

Michael Gompper, a city assistant building inspector licensed by the state, inspected the premises on May 22, 2009.³Prior to joining the city building department in June, 2008, he had been a building inspector in Vernon for twenty-eight years.He had never previously been to the premises and was directed to go there by his supervisor.

When he arrived at the premises, he found them in a dilapidated condition.He walked on the rear porch of 3364–3366 and 3372–3374 and noticed vibrations in the floorboards, guardrails, posts, and stair treads.The roof posts were spongy and not straight.Gompper felt nervous about walking on the back stairs as the stairway and railings were rotted.The roof on the back porch had collapsed and the porch floorboards went down when he walked on them.Gompper did not walk on the front porch of 3364–3366 because he believed that it was too dangerous to do so.On the basis of their testimony, the court found that Gompper and Jones had experience inspecting properties, including buildings that had to be demolished.They observed rotted columns and other parts of the porches and the stairway that made them unsafe.The court concluded that the city had demolished the porches and stairway in good faith and that those structures were unsafe for human use.

The plaintiff claimed that the premises were safe.Although the court found the plaintiff to be credible as to how "he saw things,"the plaintiff's view of the facts did not conform to "the reality of the facts."The court also found that the plaintiff failed to prove that he had suffered any damages as a result of the demolition.The plaintiff had failed to prove the value of the porches and stairway or the value of the premises before and after the demolition.The plaintiff also failed to sustain his burden as to the loss of income via rental of the premises, the construction of new porches, or the loss of income from the florist business.The court, therefore, found in favor of the city on the counts alleging negligence and nuisance.See footnote 1 of this opinion.

The court also found in favor of the city on the plaintiff's 42 U.S.C. § 1983 due process claims.⁴The court found that the circumstances at the premises were determined to be unsafe and to present a danger to human life pursuant to Gompper's observations and discretion.Section 9–54 of the city code and § 116.4 of the State Building Code granted Gompper such authority, and, therefore, his decision did not constitute a city policy constituting a due process violation pursuant to Monell v. New York City Dept. of Social Services,436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611(1978).See footnotes 4, 6 and 7 of this opinion.The court stated that in emergency circumstances it is not necessary for government to hold a predeprivation hearing, but that the property owner is entitled to a postdeprivation hearing.⁵The court concluded that the present action provided the plaintiff the requisite postdeprivation hearing.SeeDanziger v. Demolition Board,18 Conn.App. 40, 46, 556 A.2d 625(person claiming harm under municipal order may seek redress by commencing plenary action), cert. denied, 211 Conn. 805, 559 A.2d 1139(1989).The court also concluded that the plaintiff suffered no pecuniary loss as a consequence of the demolition.Additional facts will be included as necessary.

We now turn to the plaintiff's claims on appeal.

I

The plaintiff first claims that the court improperly concluded that § 9–54 of the city code is constitutional.⁶The plaintiff claims that § 9–54 and the city code are unconstitutional because they do not provide for a postdeprivation hearing or other avenue to challenge the demolition of his property.We disagree.

The standard of review of a challenge to the constitutionality of a legislative enactment is well-known."[A]party attacking the constitutionality of a validly enacted [ordinance] bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt....We will indulge in every presumption in favor of the [ordinance's] constitutionality ... and, when called upon to interpret [an ordinance], we will search for an effective and constitutional construction that reasonably accords with the [town council's] underlying intent."(Citations omitted; internal quotation marks omitted.)Ramos v. Vernon,254 Conn. 799, 814, 761 A.2d 705(2000)."[I]n passing upon the constitutionality of a legislative act, we will make every presumption and intendment in favor of its validity...."(Internal quotation marks omitted.)Bottone v. Westport,209 Conn. 652, 657, 553 A.2d 576(1989).

"[A]plaintiff claiming due process protection under the Fourteenth Amendment must possess a property or liberty interest that is somehow jeopardized by governmental action, necessitating a pre- or post-deprivation hearing as a safeguard."(Emphasis added; internal quotation marks omitted.)Hunt v. Prior,236 Conn. 421, 436, 673 A.2d 514(1996).

In count eight of the second amended complaint, the plaintiff sought a...