Second Circuit: To Demolish Dangerous Property Without Notice, Don't Delay

In WWBITV, Inc. v. Village of Rouses Point, No. 08-5112 (Dec. 9, 2009), the U.S. Court of Appeals for the Second Circuit held that a property owner whose building was demolished the day after it was badly damaged in a fire was not entitled to predeprivation notice.

After the building -- an "old hotel" in up-up-upstate New York used for equipment storage -- was damaged in a fire, the Village elders met the next morning and authorized demolition of the burned portion of the building. The property owners were not notified of the meeting or of the decision to demolish. That afternoon, the burned portions were demolished and the remainder followed several months later.

The only claim left standing after a motion to dismiss was the procedural due process claim that the Village owed the owners some kind of notice that their property was to be demolished. After discovery, the district court entered summary judgment for the Village. Slip op. at 6. The property owners appealed.

The Second Circuit compared two cases involving claims that an emergency precluded notice and hearing prior to demolishing damaged buildings, Burtnieks v. City of New York, 716 F.2d 982 (2d Cir. 1983), and Catanzaro v. Weiden, 188 F.3d 56 (2d Cir. 1999). In Burtnieks, the court held that summary judgment should not have been granted to the municipality since the property owner was entitled to have a jury determine whether the emergency existed. Burtneiks, 716 F.2d at 988 ("the existence vel non of an emergency" was an issue of fact).

In Catanzaro, the court reached a different conclusion, holding that the issue was not whether there was an emergency, but whether the municipal officers abused their discretion in concluding there was an emergency:

[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording predeprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion.

Catanzaro, 188 F.3d at 63. The court reconciled the cases:

The two decisions are not inconsistent. While Catanzaro provides the substantive standard for determining when emergency action to safeguard the public in the absence of either hearing or notice constitutes a due process violation, nothing in the decision alters the standards for summary judgment in Parratt cases. Catanzaro holds that, where an adequate post-deprivation process exists, an official reasonably believing on the basis of competent evidence that there is an emergency does not effect a constitutional violation by ordering a building demolition without notice or a hearing. Whether the official abused his discretion or acted arbitrarily in concluding that a genuine emergency exists is a factual issue, subject to the usual considerations for a district court addressing a summary judgment motion. Summary judgment may not be awarded where there is a genuine issue of fact as to whether officials acted arbitrarily in declaring an emergency.

Slip op. at 11. The court concluded the situation was "much closer to Catanzaro than to Burtnieks." Slip op. at 12. Because there was no delay between the fire and the demolition order, the court held as a matter of law that "no reasonable trier of fact could conclude that the Village officials’ decision to take emergency action was arbitrary or abusive." Id. 

The court's reasoning is pretty thin, as it based its conclusion more on policy grounds (local officials should not be hampered by the threat of lawsuits when deciding whether something poses a danger) than on whether the Village officials actually abused their discretion. Id. The court concluded that the factual dispute regarding whether the hotel posed a danger was not material for purposes of summary judgment. Id. at 12-13. ("Since plaintiffs have not produced evidence sufficient to allow a reasonable finder of fact to conclude that the Village’s decision to take emergency action was arbitrary or an abuse of discretion, the district court correctly granted summary judgment to the defendants.").

The rule of law that emerges from this decision is that the only relevant fact is the time lapse between the damage to the building and the decision that the building represented a danger. Next day, no problem. Three months, you get a trial.

Another view of the opinion here, from the Section 1983 blog.