Agenda - Planning Commission - 01/03/2019

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Zoning Bulletin December 10, 2018 I Volume 12 I Issue 23 The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin. SEVENTH CIRCUIT (ILLINOIS) (10/19/18)—This case addressed the is- sue of whether a municipality violated a property owner's due process rights as a result of a delay in issuing a citation for a municipal ordinance violation. The Background/Facts: In 2015, Nanette Tucker ("Tucker") purchased from the City of Chicago (the "City") a vacant lot on her neighborhood block. Tucker intended to convert the lot into a community garden. In June 2015, a City inspector determined that Tucker's property was in violation of the City's yard weed ordinance, which required all weeds not exceed an average height of 10 inches. The inspector took two photographs of Tucker's lot from the street to document the vegetation. Six months later, in December 2015, Tucker received notification of the al- leged June yard weed ordinance violation. Subsequently, Tucker appeared at a hearing before an administrative law judge to contest the alleged violation. Tucker argued that the the City failed to present evidence of the "average height" of the weeds in order to prove violation of the City ordinance. Tucker testified that her practice was to have the property "cut and cleaned" every other week. She presented no other evidence to the administrative law judge. The judge ultimately ruled in favor of the City and imposed a $640 fine against Tucker. Tucker paid the fine under protest. She then filed a putative class action against the City. In that action, she alleged that the City's six-month delay in notifying her of the yard weed citation unconstitutionally denied her due process. The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due pro- cess of law." (U.S. Const. amend. XIV, § 1.) The district court dismissed Tucker's claim. The court found that Tucker had failed to state a plausible claim that the City denied her of due process. Tucker appealed. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Seventh Circuit, held that the six- month delay between the City property inspection and the City's notice to Tucker of the municipal ordinance violation did not violate Tucker's due pro- cess rights. In so holding, the court explained that to succeed on her procedural due process claim, Tucker would have to show: (1) deprivation of a protected interest; and (2) insufficient procedural protections surrounding that deprivation. While Tucker acknowledged that she received a hearing on the alleged mu- nicipal ordinance violation, she argued that here there was a "prehearing denial of due process." Tucker asserted that the City's delay in issuing her notice of the alleged violation caused her "prejudice in that she was unable 'to make any measurements of the average height of the vegetation on her lot at or near the time of inspection' or to use `photographs taken contemporaneously with the date of the alleged violation.' " In other words, she argued that the delay in © 2018 Thomson Reuters 5