Elsmere Park Club, L.P. v. Town of Elsmere

• Decision Date: 09 September 2008
• Docket Number: No. 07-1821.,07-1821.
• Citation: 542 F.3d 412
• Parties: ELSMERE PARK CLUB, L.P., a Delaware limited partnership, Appellant v. TOWN OF ELSMERE, a Delaware municipal corporation; Ellis J. Blomquist; Eugene Boneker; John Giles.
• Court: U.S. Court of Appeals — Third Circuit

542 F.3d 412

ELSMERE PARK CLUB, L.P., a Delaware limited partnership, Appellant v. TOWN OF ELSMERE, a Delaware municipal corporation; Ellis J. Blomquist; Eugene Boneker; John Giles.

No. 07-1821.

United States Court of Appeals, Third Circuit.

Argued: April 15, 2008.

Opinion filed: September 9, 2008.

Douglas F. Schleicher, Esquire, Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, Philadelphia, PA, David S. Eagle, Esquire (Argued), Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, Wilmington, DE, for Appellant.

Edward M. McNally, Esquire (Argued), Liza H. Sherman, Esquire, Jason C. Jowers, Esquire, Morris James, Wilmington, DE, for Appellees.

Before: AMBRO, FISHER, and MICHEL,^* Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

We decide whether the Town of Elsmere, Delaware, violated Elsmere Park Club's procedural due process rights under the Fourteenth Amendment to our Constitution when the Town condemned the Club's apartment complex without offering a predeprivation hearing. We hold that the Town did not run afoul of the Constitution because postdeprivation process was all that was required given the circumstances of this case. Because the Town provided adequate postdeprivation process by way of an administrative appeal, and the Club failed to avail itself of that process, we affirm the District Court's grant of summary judgment against the Club.

I. Facts

The Club is the former owner of the Elsmere Park Apartments ("Apartments"). The Apartments are a complex of thirty-nine buildings, arranged in nine separate groups. They contain a total of 156 garden-style apartments, including one basement unit in each of the thirty-nine buildings. After severe flooding from Hurricane Hugo in 1989, the Town prohibited the Club from renting out its basement apartments, but allowed continued use of the above-ground units. The Club then boarded up the basement apartments with plywood. In 1996, after increasing incidents of vandalism, the Town instructed the Club to brick over the basement windows and seal the basement apartments.

All was relatively quiet between the Town and the Club between 1996 and 2002. Then, on Tuesday, October 1, 2002, while conducting a routine pre-rental inspection of the Apartments, the Town's Code Inspector, Ellis Blomquist, detected a strong smell of mold. Blomquist returned to the Apartments on Friday, October 4, with Kenneth Belmont, a representative from the State of Delaware Department of Public Health. They inspected two of the sealed basement units and found mold, water leaks, and raw sewage, amounting to various violations of the Elsmere Town Building Code. After observing the mold, Blomquist and Belmont sought the advice of Gerald Llewellyn, Chief Toxicologist for the State of Delaware. Llewellyn concluded that the conditions in the basements posed a serious health threat to the buildings' residents due to what he saw as the likelihood that mold spores were migrating up to the occupied units through openings such as pipe chases and ventilation ducts. Together, Llewellyn and Belmont recommended that the two buildings be condemned and vacated immediately. Blomquist agreed, and, after informing the Apartment's on-site manager (Darlene Groki) of his decision, proceeded to condemn the buildings and vacate the residents.

On Monday, October 7, the inspections of the basements resumed.¹ Blomquist, Belmont, Llewellyn and George Yocher, an environmental epidemiologist for the State of Delaware, proceeded to go through the remaining basements, along with several stairways and some unoccupied apartments, condemning each building they inspected. By Thursday, October 10, 2002, every building except the one housing the complex's rental management office had been condemned. It appears that no time in the Town's inspection did it examine any occupied apartments, and the record does not note what category of mold was present in the basements.

As the condemnations were occurring, the Club filed a motion for a temporary restraining order in the Delaware Court of Chancery, asserting, inter alia, that the Town had effected an unconstitutional taking by condemning the thirty-eight buildings without compensating the Club. After a hearing, the Chancery Court denied relief. In so holding, the Court found that the Town had been justified in invoking its emergency powers to condemn the property.²

At the end of October 2002, the Club notified the Town that it intended to appeal the condemnation of the Apartments. It sent a letter to the Town asking for a hearing before the "Board of Building Appeals," which was listed in the Elsmere Town Code as the appropriate body for hearing such appeals. In correspondence with the Town Solicitor, the Club was told that the Town actually referred to its appellate body as the Board of Adjustment. The Town Solicitor explained that the "Board of Building Appeals" reference came from a code section that had been borrowed from the National Building Code and incorporated into the Town's Code without being adjusted to reflect the Town's particular usage. In January 2003, the Club and the Town Solicitor executed an agreement to stay the Club's administrative appeal, and the Club, by its own admission, "abandoned its administrative appeal." Club's Br. 13. In April 2003, the Club sold the Apartments at a fire-sale price.

A year and a half later, the Club brought an action under 42 U.S.C. § 1983 in the United States District Court for the District of Delaware against the Town and several of its agents. In its complaint, the Club alleged that the Town deprived it of due process when the Town condemned and evacuated the Apartments without first affording the Club the opportunity for a hearing or the chance to cure the alleged code violations. The Town later filed a motion for summary judgment, asserting that exigent circumstances justified its failure to give the Club a predeprivation hearing and that the Club had failed to avail itself of the Town's postdeprivation procedure.

The District Court concluded that the Town "failed to present sufficient evidence of exigent circumstances to justify the absence of any pre-deprivation due process [rights]." Elsmere Park Club, L.P. v. Town of Elsmere, 474 F.Supp.2d 638, 647 (D.Del.2007). The Court found it significant that Blomquist and other Town representatives made the decision to condemn the apartments without first inspecting any of the occupied units or taking air samples. Id. Moreover, it noted that "the record contains no evidence that any residents actually complained of, or suffered from, mold-related ailments or conditions in their units." Id. As such, the Court concluded that Town had violated the Club's due process rights in not offering a predeprivation opportunity to oppose the condemnation. Id. at 649.

Despite having found a procedural due process violation, the Court went on to conclude that the Club was ineligible for relief because it had failed to avail itself of the Town's postdeprivation hearing procedure. Id. at 649-650 (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000), for the proposition that a plaintiff alleging a procedural due process violation must have taken advantage of all available local process in order to claim a constitutional injury). It therefore entered summary judgment in favor of the Town. Elsmere, 474 F.Supp.2d at 650. The Club appeals.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court's grant of summary judgment. Atkinson v. LaFayette Coll., 460 F.3d 447, 451 (3d Cir.2006). Summary judgment is appropriate if there is "no genuine issue as to any material fact" and the party making the motion "is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In determining whether a genuine issue of fact exists, we resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir.2004). We may affirm the District Court's judgment on any grounds supported by the record. In re Teleglobe Communications Corp., 493 F.3d 345, 385 (3d Cir.2007).

III. Analysis

The Club contends that the Town violated its rights to procedural due process in two ways: first, in failing to provide a hearing before condemning the Apartments and, second, in offering what the Club argues were inadequate means for challenging the condemnations after they occurred.

The Fourteenth Amendment prohibits a state from "depriv[ing] any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1. "A fundamental requirement of due process is the opportunity to be heard." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) (internal quotation marks omitted). That opportunity "must be granted at a meaningful time and in a meaningful manner." Id. In the typical situation, the hearing should come before the Government deprives a person of his property. This makes practical sense, "[f]or when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented." Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

Nonetheless, the Supreme Court has held that, in special circumstances, a state may satisfy the requirements of procedural due process merely by making available "some meaningful means by which to assess the propriety of the State's action at some time after the initial taking." Parratt v. Taylor, 451 U.S. 527, 539, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Where there is "the necessity of quick action by the State," or where "providing any meaningful...