Smith v. Village of Maywood, 84 C 3269.

• Decision Date: 19 October 1988
• Docket Number: No. 84 C 3269.,84 C 3269.
• Citation: 699 F. Supp. 157
• Parties: Frank SMITH, Jr., Plaintiff, v. VILLAGE OF MAYWOOD and Robert Grace, Defendants.
• Court: U.S. District Court — Northern District of Illinois

699 F. Supp. 157

Frank SMITH, Jr., Plaintiff, v. VILLAGE OF MAYWOOD and Robert Grace, Defendants.

No. 84 C 3269.

United States District Court, N.D. Illinois, E.D.

October 19, 1988.

Jody Ann Lowenthal, Chicago, Ill., for plaintiff.

Peter M. Rosenthal, Cary Schwimmer, Steve Hogroian, Ancel, Glink, Diamond, & Cope, Ronald S. Cope, Keith A. Dorman, Robert Scott, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

PARSONS, District Judge.

The question for decision is whether the officials of the Village of Maywood, Illinois denied plaintiff property owner procedural due process rights in violation of the Due Process Clause of the Fourteenth Amendment when they boarded up a number of rental units in the property owned by the plaintiff without giving him notice or an opportunity to be heard before they took this action. The plaintiff invokes 42 U.S.C. section 1983 in claiming that he was deprived of substantial property interests as a result of the action of defendants.

On June 28, 1982, the Village's Department of Code Enforcement conducted an inspection of plaintiff's building located at 914 St. Charles Road in Maywood. The inspection was supervised by a Robert Grace acting in his capacity as the Village's Director of Code Enforcement. Following this inspection notices to cease occupancy were posted on four of the twenty-two dwelling units in the building. The signs indicated that it was unlawful for anyone to inhabit the posted dwelling units. Shortly after the inspection the posted units were boarded-up by the Sentry Security Board-Up Service in carrying out the directions of Robert Grace.

In deciding if the "boarding-up" of the rental units by the defendants deprived plaintiff of a property interest without due process of law, the oft repeated two-pronged test of Turnquist v. Elliott is noted:

Determining whether there has been an unlawful deprivation of a constitutionally protected property interest is a two-part inquiry. First, the court must establish whether there is a property interest.... Second, if there is such an interest, the court must determine whether the person deprived was accorded due process.

Turnquist v. Elliott, 706 F.2d 809, 810-11 (7th Cir.1983).

Looking at the first prong of the inquiry, to have a property interest, "a person clearly must have more than an abstract need for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). "A property interest can be created expressly or may arise through implication from a state agency's words, actions, rules, or `mutually explicit understandings.'" Turnquist v. Elliott, 706 F.2d at 811; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

The defendants contend that they did not deprive plaintiff of a constitutionally protected property interest because plaintiff could not have legally rented the units which had been boarded up. Defendants claim that plaintiff had not obtained a rooming house license, providing approval by the Village upon a notice of intent to rent, nor had he obtained a certificate of code compliance. Wherefor, they say, he could not legally rent the units and could not have asserted in this case a "legitimate claim of entitlement" to the rent from them.

The evidence indicates that the renting of the several units of this building had been ongoing since at least 1977, and presumably since 1970. The reasonable person would not understand why the defendants had chosen not to enforce the licensing and certification ordinances for well over ten years. They knew about the property and its rental use because they had, over the time, inspected it and had issued cleanliness and upkeep citations against it. A delay this long would constitute acquiecence on the part of defendants to the use to which they knew the plaintiff was putting it. We need not reach that question, however, because, assuming defendants were not precluded from acting to cease the ongoing use violation of their ordinances, it is the manner in which defendants acted to stop the violations of their occupancy ordinances which is the source of the controversy here.

This brings us to the second prong of the Turnquist inquiry. Was plaintiff afforded due process? By boarding up the units before either a notice to the owner of the planned boarding-up was given, or a chance for the owner to be heard in opposition to it was afforded, the plaintiff was denied the opportunity to show if he could that technically or otherwise he was not in violation of the ordinances or to both correct the violations and continue the rental of the units without substantial loss of income. In addition, there is evidence in the record that other tenants in the building, seeing the boarding-up of the four units, ceased renting the units in which they were living, as a result of which plaintiff was deprived of even more income.

The way in which defendants acted, that of summarily boarding up the units before either notice or a hearing were afforded, runs contrary to the procedures that were followed by their Department of Code Enforcement when it enforced other ordinances against plaintiff and his property. Exhibits in evidence include notices of other ordinance violations on the part of plaintiff. They were sent to him. These exhibits are dated from May of 1978 to July of 1982. Each notice informed plaintiff of the specific problems he had to correct and specified a date by which the correction had to be completed. These notices were always sent to the plaintiff after an inspection of his premises had been completed. The penalty for not complying with the notice was always stated on it. If in fact the violations were not corrected within a prescribed time period, a complaint was then to issue. The notice informed the plaintiff of the ordinance he was violating and set a firm court date comfortably in the future for resolution of the matter in a court of law. Under this procedure, very clearly and unmistakably, notice and an opportunity to be heard always were provided the plaintiff property owner in this case. The testimony of the defendant Grace confirms this procedure.

According to the evidence there was an exception to this ordinary due process procedure. This exception was provided for in "life-saving" or "emergency situations" wherein, presumably, a tenant's or third person's life is immediately endangered by the condition or use to which the premises at the moment was or would be exposed. Obviously, such emergency situations were those which at the posting or boarding up time had immediately prior thereto involved work of the fire department, the police department, or both. The property effected by the emergency would summarily be boarded up and the tenants would be relocated. Neither notice nor an opportunity to be heard could be given the owner before the necessary action would have to be taken. The evidence presented in the trial of this case showed that in the instances of this boarding-up and posting there was no such emergency involved and the ordinances authorizing them are not the subject of this controversy. There simply was no fire, no natural disaster, no life threatening danger, nor violent crime that justified this particular "boarding-up" procedure that was implemented by the defendant Grace. The...