Agenda - Planning Commission - 10/05/2006

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Page 2 - September 10, 2006 Z.B. (~'. Demolition - City condemns, partially demolishes building City reimbursed for demolition; Owner claims constitutional violations Citation: Davet v. City of Cleveland, 6th U.S. Circuit Court of Appeals, No. 05-3832 (2006) The 6th U.S. Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee. OHIO (08/01/06) - Davet owned a building in the city of Cleveland. City in- spectors found multiple violations of the building and housing codes, and posted a condemnation notice on the building. Upon fmding the notice, Davet filed an appeal. The appeal triggered an automatic stay, preventing the city from demolishing the building until it could be decided. The city asked for, and the board approved, the stay to be lifted as the building posed an "immediate peril to life [and/or] property." Davet received a temporary retraining order to keep the city from taking further action. However, Davet withdrew his request, and the city demolished the front of the building. The city filed a counterclaim in Davet's appeal for expenses that it incurred from the partial demolition. Two hearings were held to decide Davet's appeal. The city presented evi- dence of the code violations and the steps necessary to remedy them. Davet submitted a counterproposal that the city rejected, claiming that it did not (" address the requirements in the city's order. '. Davet then sued in court, claiming constitutional due process violations and an illegal taking of his property without public purpose or just compensa- tion by the city. The city asked for judgment in its favor without a trial. The trial court found that the city had condemned the building properly, Davet's failure to appeal that decision rendered it an "established legal fact" that could not be relitigated, and adequate process was afforded to Davet at the administrative hearings. Finally, the court granted the reimbursement for demo- lition fees to the city. Davet appealed. DECISION: Affirmed. On appeal, Davet argued that the trial court concluded incorrectly that he had not exhausted all of his administrative remedies. However, this was not what the trail court stated. Because Davet did not appeal the board's ruling on the validity of the condemnation, the court found that the order became final, thus precluding further argument on the condemnation status. The final deci- sion of an administrative body where both parties were given ample opportu- nity to present their case generally was not eligible to be reargued later in court. Davet's due process claims failed because he had ample notice and oppor- tunity to be heard, and he could not establish a taking because demolition performed in compliance with the law in order to enforce zoning codes or stop a public nuisance were not considered takings under the state constitution. @ 2006 Quinlan Publishing Group. Any reproduction is prohibited~ For more information please call (617) 542-0048. 78