Sixth Circuit offers a primer to municipalities considering razing nuisance properties

Give adequate notice. Ensure the opportunity for a hearing. And if the local code provides for these two things, follow the code. 

That’s the simple message of a new Sixth Circuit Court of Appeals decision, McIntosh v. City of Madisonville, Ky., which considered whether the due process rights of mobile home owners were violated when the City of Madisonville razed the home they owned.

The McIntoshes, owners of a mobile home park, faced serious property maintenance code violations in late 2020, including evidence of water intrusion, structural weakness and mold in one of the units. Inspectors from the City of Madisonville’s building department condemned the mobile home and warned the McIntoshes that if they failed to fix the violations within 30 days, the city would demolish the property. On schedule, the city razed the home.

The owners sued, claiming both substantive and procedural due process violations, and the trial court dismissed both claims on summary judgment.

On appeal, the Sixth Circuit upheld the dismissal of the substantive due process claim but reversed the trial court on the procedural due process claim. In doing so the appellate panel give municipalities within Ohio, Michigan, Kentucky and Tennessee helpful instruction on how to ensure property owners’ rights are protected while carrying out the essential function of abating structural nuisances.

The Sixth Circuit was quick to uphold the dismissal of the substantive due process claim, recognizing that municipalities do not “shock the conscience” when they destroy buildings “found by responsible officers to be a nuisance or threat to public health or safety.” Because a city has that inherent authority, it will generally satisfy substantive due process obligations when it confronts nuisance properties.

But on the procedural due process claim, which requires (except in cases of emergency) the government to give an owner both notice and an opportunity to be heard before depriving the owner of its property, the Sixth Circuit was more circumspect of the city’s behavior.

The court noted that the city provided the McIntoshes a notice reasonably calculated to apprise them of the threatened demolition. And the notice, which pointed to the city code’s establishment of an appeals board, satisfied the government’s obligation to inform the McIntoshes of the opportunity to object.

But the city’s behavior within the 30-day period after the notice was issued warranted reversal. To begin, the court noted that while the ordinance gives owners the right to be heard before the local appeals board, the city admitted there was no board in existence. Further, when the McIntoshes asked how to appeal and claimed to have sent letters seeking an opportunity to be heard, the city confirmed there was no board—which the court found “characterize[d] the city’s statutory promise of a hearing as illusory.” Finally, the city’s uncodified, informal means of appealing—by sitting down with the building commissioner or city attorney, for example—was not enough to satisfy this aspect of procedural due process because it’s plausible that no true appeal policy existed. As a result, the Sixth Circuit sent the case back to the lower court for trial.

The facts of the McIntosh case are confined to this municipality, but the takeaways are instructive. The case delivers a good summary of every local government’s responsibilities before demolishing a structural nuisance:

• Codify the process that defines the structural nuisance, provides adequate warning to the owner of the possibility of demolition, and offers an opportunity for a hearing on any objections
• Make certain the condition of the property warrants it being deemed a structural nuisance under the code before the demolition warning is sent
• Ensure a neutral board exists to hear objections; many municipalities give these responsibilities to boards of zoning appeals or planning commissions, for example, if they don’t have separate appeals boards
• Deliver the warning and opportunity to be heard in accordance with the codified process
• Protect the owners’ appeal rights if they object

McIntosh v. City of Madisonville, Ky. can be read here. McDonald Hopkins' Public Law team, which includes current and former municipal law directors, is available to assist with due process issues for both public and private clients. Feel free to contact us.