533 F.Supp.3d 512
E.D. Ky.2021Background
- Emma Stewart owned 135 Hustonville Street; a 2008 fire rendered the outer house uninhabitable and the property was largely abandoned; heirs did not administer her estate or maintain the property.
- From August 2017 to early 2019 the City issued seven notices/citations for nuisance (overgrown vegetation, dilapidation); Brown (the caretaker/heir) received notices but did not contest citations or pay fines; City repeatedly abated at its expense and placed liens.
- On April 11, 2019 Code Enforcement Officer Jeff Knouse declared the structure an imminent danger after observing a large roof hole, animal infestation, structural collapse risk, and prior demolition order; the City demolished the outer house on April 13, 2019 without separate prior notice and discovered an inner log cabin dated to 1811–1812.
- Heirs learned of the demolition via media, then sued the City and Knouse under 42 U.S.C. § 1983 (takings, due process), Kentucky constitutional provisions, trespass, and the Kentucky Eminent Domain Act; both sides moved for summary judgment.
- The court concluded the demolition was an exercise of the police power addressing an imminent danger, applied the Parratt emergency/postdeprivation framework, found available postdeprivation remedies adequate, and granted defendants' motion while denying the Estate's.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal takings claim (per se) | Demolition was an uncompensated taking of private property | Demolition was police-power nuisance abatement, not a compensable taking | Held for defendants: demolition under police power is not a compensable taking (no per se taking) |
| Procedural due process (pre/post notice) | Plaintiffs contend inadequate process and sought a hearing before demolition | Defendants invoke Parratt emergency exception; contended predeprivation process impractical and postdeprivation remedies adequate | Held for defendants: emergency declaration justified summary action; postdeprivation remedies and prior notice history satisfied due process; alternatively predeprivation process would have sufficed given long history of citations |
| Kentucky constitutional & Eminent Domain Act claims | Plaintiffs argue state-constitutional property rights and that condemnation procedures should have been used | Defendants argue no state constitutional tort remedy for money damages and actions were authorized emergency abatement, not condemnation | Held for defendants: Kentucky provides no separate damages remedy under state constitution; procedures for emergency abatement apply, so claims fail |
| Trespass | Plaintiffs allege unauthorized entry/demolition after Brown protested | Defendants assert privilege to enter to determine/abate nuisances and demolition occurred before protest | Held for defendants: entry/demolition privileged under nuisance-abatement authority and demolition preceded Brown's April 16 protest; trespass claim fails |
Key Cases Cited
- Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162 (2019) (owner may bring takings claim under § 1983 without awaiting state process)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (per se taking for a permanent physical occupation)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (regulatory takings balancing framework)
- Parratt v. Taylor, 451 U.S. 527 (1981) (postdeprivation remedies adequate when predeprivation process impractical)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (balancing test for what process is due)
- Harris v. City of Akron, 20 F.3d 1396 (6th Cir. 1994) (deference to emergency demolition determinations and application of Parratt)
- Embassy Realty Invs., Inc. v. City of Cleveland, [citation="572 F. App'x 339"] (6th Cir. 2014) (police-power nuisance abatement not compensable under Takings Clause)
- Davet v. City of Cleveland, 456 F.3d 549 (6th Cir. 2006) (adequacy of notice and opportunity to be heard in demolition/condemnation context)