Agenda - Planning Commission - 11/04/2010

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c Zoning Bulletin September 25, 2010 1 Volume 41 No. 18 Roud Klag, issued a "stop work" order, citing certain zoning deficien- cies with the construction of the Hussein? home. In November 2006, in preparation for winter, the Husseins had a tem- porary layer of asphalt put over their gravel driveway. The Husseins said Klag gave verbal authorization for the installation. Klag denied that he gave authorization. In any case, Klag went to the Hussein' home while the asphalt was being installed. Klag informed the asphalt subcontractor of the existing "stop work" order. Klag then ordered the asphalt subcon- tractor to remove the asphalt. Klag threatened litigation unless the as- phalt was removed. The subcontractor removed the asphalt. The Husseins later filed suit against the city, Klag, Klag's superior, and the city administrator (hereinafter, collectively, "the City"). The Husseins alleged that Klag's threats of litigation and order to remove the asphalt violated their substantive and procedural due process rights. The Husseins maintained that under the United States Constitu- tion (Amendment 14), they could not be deprived of a protected prop- erty interest without due process of law —typically, notice and an op- portunity to be heard. The district court agreed with the Husseins. It held that: the Husse- ins had a protected property interest in the asphalt that was laid down in their driveway; the City had deprived the Husseins of that interest by ordering the asphalt removed; and that the deprivation was "arbi- ( trary and capricious" and was "conducted without granting the Hus- seins any notice or opportunity to be heard." The City appealed. DECISION: Reversed and remanded. The United States Court of Appeals, Sixth Circuit, held that Klag's threat of litigation and order to remove the asphalt did not deprive the Husseins "of notice and an opportunity to be heard" in violation of their constitutional due process rights The Husseins' due process rights were not violated "[b]ecause [Klag] only threatened litigation rather than removing the asphalt ...." In so holding, the court noted that the Husseins were "correct" that they could not "be deprived of a protected property interest without due process of law" —"typically, notice and an opportunity to be heard." Here, however, the court found that when Klag stated his view that the Husseins were in violation of the law and threatened litigation, that was "not a deprivation of [the Hussein'] interest without notice and an opportunity to be heard." Rather, the court found Klag's ac- tions were "the provision of notice," and if the Husseins did not com- ply with Klag's demands, the threatened litigation would have provid- ed "the opportunity to be heard." In other words, the court explained © 2010 Thomson Reuters 5 93