including reviews of the file at each step of the process, and again before demolition is ordered. While we do not doubt the City's good faith in carrying out these checks and reviews, they cannot substitute for a review by an impartial outsider in which the property owner can participate. Even if the City were able to eliminate all conscious and unconscious biases in its reviews, those reviews remain a "secret, one-sided determination of facts" that are "no replacement for the right to a prior hearing that is the only truly effective safeguard against arbitrary deprivation of property." Id. at 81, 83.
The final factor is the governmental interest involved. It is here that the City has truly failed to present evidence to support its arguments. On the record as it now exists, there is no evidence that safety concerns about infirm buildings motivate the City's current summary demolition procedures: instead, the head of the Fast Track program has testified that properties that present an immediate danger to the public because of structural damage or deterioration are not processed through Fast Track at all. McDermott decl. PP 12, 57. The plaintiffs' evidence also shows that on several occasions the City has demolished houses that had been rehabilitated, see, e.g., Defs.' Exs. 102, 103; Third Decl. of John Wojcik, or that were in the process of active rehabilitation. See Am. Stmt. of Facts to Pls.' Reply in Supp. of Mot. for Prelim. Inj., Ex. F., Decl. of Rev. Vinson. Neither the Ordinance nor the City's Fast Track procedures require any finding that properties are a nuisance before they are eligible for demolition.
The City's focus is not the extent of deterioration of Fast Track properties, but whether the building is accessible in any manner. The City argues that it is right to focus on accessibility because open and abandoned buildings may become breeding grounds for criminal activity. While this argument has a certain intuitive appeal, the City has not provided any actual evidentiary support for it. Building Commissioner Cherryl Thomas' affidavit on this topic is based almost entirely upon hearsay, and thus cannot be considered competent evidence. The advantages of summary demolition procedures as a crime-fighting tool are simply not supported by the current record.
Nor has the City shown that alternatives to Fast Track procedures, such as seeking orders of demolition in state court, are inadequate or burdensome. The City's only evidence about the adequacy of Demolition Court proceedings is the identification of one case that was filed in 1987 and is still pending. In the absence of any evidence about the total number of cases in Demolition Court or the average length of time until these cases are resolved, this solitary example of one old case fails to establish that Demolition Court proceedings are inadequate, or even that they are particularly slow.
Instead, the record suggests that the defendants' interests in expedited demolition may stem as much from political and economic incentives as from any objective needs. The removal of vacant buildings is very popular with neighbors, and provides a relatively inexpensive way to be seen as fighting crime. The individual defendants thus may have a political interest in the continuation of the Fast Track program. Demolition may also enable the redevelopment of the newly vacant lots at lower cost to the developers--excluding, of course, the owners of the demolished buildings who may have wished to rehabilitate and "redevelop" the building themselves. The City can potentially increase its revenues from property taxes. While there is nothing inherently wrong with these possible incentives for a summary demolition procedure, they must yield to the need to insure compliance with the dictates of the constitution. The law is clear that "Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions are about to be taken." Fuentes v. Shevin, 407 U.S. 67, 90 n.22, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972).
Moreover, an adversary hearing before a neutral third party may be even more essential when the government has a direct pecuniary or political interest in the outcome. United States v. James Daniel Good Real Property, 510 U.S. 43, 55-56, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). Our review of all of these factors leads us to conclude that the plaintiffs have shown some likelihood of success under the Mathews v. Eldridge balancing test.
The defendants' motion is full of arguments about the incorrectness of our previous opinion. Many of these arguments only rehash their previous arguments, and thus are an insufficient basis for reconsideration. "Amoco Cadiz," 794 F. Supp. 261, 267 (N.D. Ill. 1992). For instance, the City's attempts to distinguish McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972), after remand, 369 F. Supp. 1391 (S.D.N.Y. 1974), merely repeat arguments that this court has already considered. The cases that the City urges us to follow are equally inapplicable to the scheme presented by the Ordinance, if not more so, and we continue to believe that McClendon provides the best example of a similar scheme's compliance (or lack of compliance) with due process.
Nor are the City's factual arguments compelling. While those who are at risk of deprivation here may not always be the "uneducated, uninformed consumer[s]" described in Fuentes, 407 U.S. at 83 n.13 (and also posited in McClendon, 369 F. Supp. at 1394), it is undeniable that the property owners here face significant hurdles in availing themselves of the "opportunity for a hearing" permitted by the Ordinance. An owner seeking a hearing must first realize that he is permitted one--nothing in the notices required by the Ordinance tells him this essential fact. Indeed, it is quite possible that this deficiency itself renders the Ordinance's notice requirements unconstitutional. See id. at 80. Second, the owner must figure out what is meant by an "objection" and where he is supposed to file it, a task that experienced attorneys would have difficulty with, and in which he is given no help at all from those responsible for enforcing the Ordinance. He must then assemble this "objection" and file it within 30 days of the date of notice. Even if he is able to secure legal assistance, such a speedy filing deadline would be difficult to meet. In the event that he is not able to afford the filing costs for his "objection," he must pursue the process to have those fees waived--a process that in the local courts could easily extend beyond the 30-day window the Ordinance allows. In light of the hurdles inherent in the Ordinance's scheme for allowing the property owner a pre-deprivation hearing, we remain firmly of the opinion that the plaintiffs have shown some likelihood of success in their challenge to the Ordinance as written.
Addressing the challenge to the Ordinance as applied, the City relies heavily on Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), arguing that any errors in the Fast Track process with regard to particular properties would render those demolitions "random and unauthorized," and thus state tort remedies are constitutionally sufficient process. There are several flaws in this argument. First, one of the most important reasons to provide meaningful pre-deprivation hearings is to prevent mistaken deprivations in the first place. On several occasions the Supreme Court has noted that the purpose of the Fourteenth Amendment's requirement of notice and a hearing "is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment--to minimize substantively unfair or mistaken deprivations of property." Fuentes, 407 U.S. at 80-81. See also United States v. James Daniel Good Real Property, 510 U.S. 43, 53, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993) (quoting this passage). The current procedure for filing an "objection" is rarely used: thus far, the City has only identified two cases in which property owners have obtained full hearings by filing an "objection" as proposed by the Ordinance. It is a reasonable inference that the Ordinance's poor description of the objection process, coupled with the City's refusal to provide any information on that process, have discouraged property owners from seeking the hearing to which they are entitled.
Second, Parratt is not applicable here, where the deprivations of property that result from the Ordinance's implementation are foreseeable. See Zinermon v. Burch, 494 U.S. 113, 138-39, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990). Just as in Zinermon, id. at 134, "the very risks created by" the Fast Track program's procedures "are borne out by the facts alleged in this case," in which the City's lack of adequate procedures predictably resulted in some of the losses experienced by the plaintiffs. The fact that erroneous demolitions may be "unauthorized" in the sense that such demolitions are not the goal of the Ordinance is not dispositive; rather, the key question is whether, under the particular situation at hand, it is feasible to provide a pre-deprivation hearing. Id. at 138-39. Because there is little question that improved pre-deprivation procedures could avert many of the erroneous demolitions of which the plaintiffs complain, the City's reliance on Parratt is misplaced.
The City's arguments in its motion are flawed, and the overarching principles that control the eventual outcome of this case--the Mathews v. Eldridge balancing test--indicate that the plaintiffs have a more than negligible chance of prevailing on the merits. Accordingly, we deny the City's motion to reconsider the grant of preliminary injunction.
The Motion for a Stay Pending Appeal
Failing in its bid to have us vacate our prior order, the City alternatively asks for a stay of the preliminary injunction pending its appeal. Such a stay may be requested pursuant to Federal Rule of Civil Procedure 62(c). "The factors regulating the issuance of a stay are . . .: (1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987). As the first part of this opinion indicates, the City has not met this standard. Indeed, the City did not bother to identify the applicable federal rule or the relevant test, present any arguments directed to their request for a stay, or cite any case law. The only references to a request for a stay pending appeal appear in the title of the motion and its one-sentence "conclusion." Nevertheless, a desire to avoid encountering the same request at a later date drives this court to address the City's motion for a stay on its merits.
In light of the evidence adduced so far, this court finds that the City has not met the first requirement, "a strong showing that [it] is likely to succeed on the merits." Id. Perhaps reasonable jurists could debate whether this standard has been met here. Even if a strong showing had been made, however, the City completely failed to identify, let alone document, any irreparable injury that it would suffer in the absence of a stay. The last two factors, the harm to the plaintiffs if a stay were granted and the public interest, either favor the plaintiffs or are neutral, as discussed in our earlier opinion. As the City's bare-bones request for a stay of the preliminary injunction pending appeal does not meet the requirements for such a stay, the court denies it.
The court denies the City's Emergency Motion to Reconsider or Alternatively to Stay Order of Preliminary Injunction Pending Appeal.
United States District Judge
June 24, 1997