by Gary Taylor
Hussein H. Mann, et. al. v. Calumet City, IL
(Federal Seventh Circuit Court of Appeals, December 7, 2009)
Post-sale inspection ordinance found constitutional.
Calumet City, Illinois has an ordinance that forbids the sale of a house without an inspection to determine whether it is in compliance with the City’s building code. The ordinance requires a property owner to notify the City government of a proposed sale of his property. The City has 28 days after receiving the notice to conduct a compliance inspection. During that period it must notify the owner of its intention to conduct the inspection. If he responds that he won’t consent to an inspection, the City has 10 days within which to get a warrant from a judge. Within three business days after conducting the inspection (whether or not pursuant to a warrant) the City must notify the owner whether the house is in compliance with the building code and, if not, what repairs are required to bring it into compliance. If the inspection discloses an unlawful conversion of the house to a multifamily dwelling, the order, instead of being a repair order, will order deconversion. After the City is notified that the repairs have been made or deconversion effected, it has three business days within which to reinspect. An owner who is in a hurry to sell the house can do so before completing the ordered repairs or deconversion if his buyer posts a bond equal to the expected cost of bringing the house into compliance. The buyer then has 180 days to complete the repairs or deconversion; if he fails to do so, the City can ask a court to order him to do so. The owner can appeal a repair or deconversion order to the City’s Zoning Board of Appeals, where he is entitled to a full hearing. The appeal stays the City’s order. An owner who loses in the board of appeals is entitled to judicial review in the Illinois state court system in the usual manner.
Plaintiffs challenged the constitutionality of the ordinance “on its face,” meaning that in any application of such an ordinance it does not meet constitutional muster. The district court dismissed the claims, and Plaintiffs appealed to the Seventh Circuit.
Plaintiffs challenged the ordinance on substantive due process grounds, arguing that there was no rational basis for the regulation. After pointing out that Plaintiffs were engaging in an “uphill fight” to prove their claim, the court examined Plaintiffs’ arguments. The court observed that building codes, to which the challenged ordinance are the most reasonable of regulations:
“They do increase the cost of property (as do other conventional regulations of property), but if reasonably well designed they also increase its value. Without them more buildings would catch fire, collapse, become unsightly, attract squatters, or cause environmental damage and by doing any of these things reduce the value of other buildings in the neighborhood. Assuring full compliance with building codes is difficult after a building is built, because most violations are committed inside the building and thus out of sight until a violation results in damage visible from the outside. …All this seems eminently reasonable….”
The Plaintiffs also raised a procedural due process claim, questioning the procedural adequacy of the method by which the City’s ordinance is enforced. The Plaintiffs argued that it fails to provide for “pre-deprivation” procedures; that the City should be required to go to court, or conduct an administrative hearing before it can order repairs or deconversion. The court dismissed this line of reasoning, pointing out that a homeowner can challenge the order, and if he does it is stayed. “That is pre-deprivation process…. All that is required is . . . notice and an opportunity to be heard before being deprived of a protected liberty or property interest.” The Seventh Circuit affirmed the district court’s dismissal.
