Agenda - Planning Commission - 03/04/2010

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January 10, 2010 I Volume 41 No.1 Zoning Bulletin prior to ordering repairs or deconversion; and (2) be more detailed so as to anticipate possible abuses or irregularity in enforcement-:such as orders for purely cosmetic changes to houses. They asked. the court to . enjoin (i.e., legally prohibit enforcement of) the Ordinance. The. district court dismissed the Manns' case and Smiley's case for "failure to state a claim." The Homeowners appealed. Their cases were consolidated on ap- . peal (i.e., consolidated into one case heard by the appellate court). The Court's Decision: District court's decision affirmed. The United States Court of Appeal, Seventh Circuit, held that the Ordinance did not violate homeowners' due process rights because it provided adequate "conventional procedural safeguards." The. court .said it could not "think of what more could reasonably be required to protect the homeowner's rights. .. ." The court found the Homeowners' argument for a "pre-depriva- tion" procedure was "frivolous." The Ordinance already provided a "pre-deprivation" process by allowing a homeowner to challenge a re- pair or deconversion order. As. to the Horneowners' argument that the Ordinance had to be more detailed so as to anticipate possible abuses or irregullarity in en- forcement, the court said that would result in an Ordinance that would be "a thousand pages long." The Constitution, said the court "does not require such. detail." Instead, if the Homeowners were concerned about an abuse or irregularity in the enforcement of the Ordinance they should have challenged its constitutionality "as-applied"-which they did not. See also: Hometown Co-op. Apartmentsv. City of Hometown, 515 E Supp. 502 (N.D. Ill. i981). . See also: Currier v. City of Pasadena, 48 Cal. App. 3d 810, 121 Cal. Rptr. 913 (2d Dist. 1975). Case Note: In its decision, the court noted that a regulation could "so constrict the rights of a property owner as to be deemed a 'regulatory taking,' entitling the owner to compensation uJ;lder the takings clause of the Fifth Amendment for diminution of the' mar- ket value of his property." However here, the Homeowners did not proceed under the takings clause; rather their action was un- . der the due process clause. 6 @ 2010 Thomson Reuters ('i (; ~~ ( .... : ".'.'-7"-.._~._--~~--' III '.:" .. ~ ".' ;. ". a . . 58 .:. :". """- . .-. . . .' ,~- t:"J<!. .:_"C.Ot '.