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City will pay for "emergency" demo

Chalk one up for the Constitution: U.S. District Judge Xavier Rodriguez ruled against the City Wednesday in a lawsuit over its 2008 demolition of Chance Kinnison's Tobin Hill fixer-upper. The City razed the historic bungalow that April, a little more than a week after Kinnison bought it from Richard Brownlee, who has sued the City over its condemnation of another Tobin Hill home. Kinnison learned of the demolition the day the bulldozers arrived from the foundation-repair crew he had hired to level the house.

 

In its defense the City argued that the house was in such a state of disrepair that it was impractical to give notice to Kinnison -- an argument the Judge noted was undercut by the City's own dilly-dallying: approximately nine days passed between the day a dangerous-premises officer first inspected the property and the day it was torn down. (And the house, of course, did not get that way overnight; read on.)

 

The City was within its rights to declare the house a nuisance and demolish it as part of its police powers, the Judge said, but, "If no emergency situation existed to justify the City's demolition of the structures on Kinnison's property without notice, then the City's actions failed to provide Kinnison with procedural due process." It was a case for the Dangerous Structure Determination Board, in other words, not emergency demolition. Because the City acted without affording Kinnison due process, Rodriguez concluded, its actions constituted an unreasonable seizure in violation of the Fourth Amendment.


"Imminent danger just was not present in this case," said attorney Tyler Rutherford, who represents Kinnison.

 

"I think I'm still in shock," Kinnison said. "It makes me sort of feel like a citizen finally, that there is a reason for the Constitution to exist."

 

A public outcry following the demolition of Kinnison's house (and a rash of other "emergency" demos) prompted the City to update the code that governs those actions in October 2008. The code now distinguishes between emergency conditions caused by catastrophic events, such as fire or flooding, and long-term deterioration. In the case of the latter, it requires City officials to take more meaningful steps to notify the property owner, who then has up to 72 hours to produce a plan of action to stabilize the structure.

 

City Attorney Michael Bernard says those changes were prompted by Mayor Phil Hardberger  -- "If I recall correctly, [the Mayor] just said we ought to do more," Bernard said -- not by a realization that the City was legally out of bounds. (It is perhaps worth noting here that Mayor Hardberger is a former chief justice of the Fourth Court of Appeals.)

 

As the Current reported earlier this year, a number of problems with the system remain, including questions about the qualifications of the Dangerous Premises Officers and building inspectors who initiate and second demolition orders, and substantive conflicts of interest on the Dangerous Structure Determination Board, which consists entirely of City staff. 

 

A former Peace Corps volunteer, Kinnison was 31 when the City demolished his dream rehab project, and he refers to the ensuing lawsuit as "a really dark part of my life." Now, with some legal vindication, he might be ready for another renovation project. "I'm always thinking of finding great old houses that need some attention," he said. "That's just what I want to do with my life."

 

The City may have become an unintentional investor in his next project. The lawsuit now proceeds to trial on damages, and Kinnison will be seeking punitive as well as actual damages. "This little blunder by the City could get pricy for them," Rutherford said.

 

Posted by Elaine Wolff on 7/23/2010 6:48:30 PM
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