Kirkpatrick v. City of Bangor
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 73
Docket:	Pen-98-341
Argued:	February 4, 1999
Decided :	May 13, 1999

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER and
	CALKINS, JJ.

LEON KIRKPATRICK et al.

v.

CITY OF BANGOR

CLIFFORD, J.

	[¶1]  The City of Bangor appeals from a judgment entered in the
Superior Court (Penobscot County, Kravchuk, C.J.), pursuant to
17 M.R.S.A. § 2851 (Supp. 1998), vacating the order of the City Council to
demolish, within 30 days, a building owned by Leon and Gertrude
Kirkpatrick that had been declared a danger and a nuisance.  The court
affirmed the City Council's finding that the building constituted a danger and
a nuisance, but concluded that due process mandates that, prior to issuing
an order of demolition, the City Council provide the Kirkpatricks with a list
of the defects that render the property dangerous and a nuisance, and a
reasonable time in which to make repairs.  Because we conclude that the
Kirkpatricks were afforded adequate due process, we vacate the Superior
Court's judgment.
	[¶2]  The Kirkpatricks purchased property located at 30 Highland
Avenue, Bangor, in the 1950's, using it as a rental property until 1983.  The
building was originally divided into five separate apartments with a shared
bathroom and no central heating.  To meet applicable housing codes for a
five unit apartment building, the Kirkpatricks installed central heating and
individual bathrooms for each apartment.  Mr. Kirkpatrick, a licensed
master electrician, has performed most of the necessary maintenance and
repairs on the premises.
	[¶3]  The property remained inhabited and in compliance with
applicable housing codes until the early 1980's when tenants, responsible
for purchasing their own fuel, failed to heat the building, causing the pipes
to freeze and burst.  Mr. Kirkpatrick, because he owned other "more
desirable" investment properties, had health problems, and was medically
advised to reduce his stress, chose not to repair the heating system.  In
1983, the property was placarded as "unfit for human habitation" for lack of
heat.  The property has remained vacant since.
	[¶4]  In early 1996, the Bangor Code Enforcement Office notified the
Kirkpatricks that it planned to conduct an inspection of the building
because it had remained vacant for a significant period of time and there was
a possibility of either structural defects or fire hazards.  Following
inspection, the City Council, on August 29, 1996, notified the Kirkpatricks
that a public hearing would be held to "decide whether to condemn the
building or structure . . . as a dangerous building . . . ."  The public hearing,
held October 28, 1996, revealed the following evidence.
	[¶5]  Beginning in 1988, the CEO was required to visit the building
39 times.  Although the majority of visits resulted from complaints that the
building was unsecured following break-ins, several complaints related
directly to the condition and safety of the building.{1}  In the CEO's opinion,
the building was dilapidated from lack of maintenance.  He described the
building as obsolete{2} and a fire hazard,{3} and estimated that rehabilitation of
the property would cost between $50,000 and $75,000.  The Housing
Inspector testified that the building had numerous problems,
including: structural problems in the foundation, rotted decks, broken
windows, missing windows, rotted fascia trim, rotted wood siding, missing
steps, rotted steps, no exterior lighting, a rotted porch overhang, and that
the building's two chimneys were in a state of disrepair.  The driveway had
grassed over, there was a retaining wall in the front yard in need of repairs,
and the inspector feared that the building was extensively contaminated
with lead paint.  Moreover, he stated that the interior of the building needed
new paint, a new electrical system, new kitchens, and new bathrooms.
	[¶6]  The City Engineer also testified concerning the structure of the
building.  He stated that there were significant structural cracks in the brick
walls that had been recently mortared over and painted, there were signs of
recent movement in the front corner of the house, and one wall had a
significant bulge.  He also noted foundation problems in the rear of the
house, a sagging roof, and movement in the rear, wooden portion of the
house.
	[¶7]  The Kirkpatricks contended that the majority of structural
defects in the building have existed since they purchased it over 40 years
ago.  They recognized that the building needed repairs, but they offered no
time frame in which the property would be rehabilitated.  The Kirkpatricks'
attorney stated that the housing market was poor and "what is the point of
spending a lot of money to fix something up in a poor market." 
Furthermore, he stated that he wished he could state that "in
6 months x will happen, in 12 months y will happen, and that in 18 months
the building will be completely rehabilitated.  I can't make that
representation to you."  The Kirkpatricks stated that they would comply
with an order by the City to make some reasonable progress, but offered no
specific plan for rehabilitating the building and expressed no intention of
completely rehabilitating it in the near future.
	[¶8]  The City Council determined that the building was structurally
unsafe and unstable, a fire hazard, and unsuitable for use as a residence. 
Accordingly, the City Council adjudged the building to be dangerous and a
nuisance, pursuant to 17 M.R.S.A. § 2851, and ordered the Kirkpatricks to
demolish the building within 30 days.  If the Kirkpatricks failed to demolish
the building, the order empowered the CEO to demolish or remove the
building at the Kirkpatricks' expense.  In response, the Kirkpatricks filed a
two-count complaint in the Superior Court, alleging in Count I, brought
pursuant to M.R. Civ. P. 80B, that the order was arbitrary, capricious, and not
supported by the evidence, and in Count II, that the City Council was taking
property without just compensation.{4}  In the Rule 80B action, the
Kirkpatricks raised three issues before the Superior Court:  (1) whether
there was sufficient evidence in the record to support the City Council's
determination that the building was dangerous and a nuisance; (2) whether
the City Council improperly relied on aesthetic concerns when condemning
the property; and (3) whether due process requires the City Council to give
the property owner a reasonable opportunity to repair the structure prior to
an order of demolition.
	[¶9]  The court rejected the Kirkpatricks' contention that the
evidence was insufficient to support the City Council's conclusion that the
building was dangerous and a nuisance.  The court also concluded that the
City Council properly relied on public safety concerns when making its
determination.  The court, however, determined that because demolition of
a building is a drastic measure with constitutional implications, the
Kirkpatricks were entitled to both a list of the structural defects that
rendered the property dangerous or a nuisance, and a reasonable
opportunity to make the necessary repairs.  The City contends that due
process requirements were met by the notice actually given and the hearing
actually provided.
	[¶10]  When the Superior Court acts as an appellate court, we review
directly the evidence presented at the administrative hearing. 
See Goldstein v. Town of Georgetown, 1998 ME 261, ¶ 5, 721 A.2d 180,
181.  Our review of issues of law decided by the Superior Court is de novo. 
See Ferraiolo Constr. Co. v. Town of Woolrich, 1998 ME 179, ¶ 9,
714 A.2d 814, 817.

I.

	[¶11]  A municipality may, after providing a building owner with both
notice and hearing on the matter, adjudge a building or structure to be
dangerous or a nuisance.  See 17 M.R.S.A. § 2851.{5}  It then has authority to
"make and record an order prescribing what disposal must be made of that
building or structure."  Id.  Nothing in the language of the statute limits the
remedies available to the City when ordering what disposal must be made
and we have previously recognized the authority of a municipality to order a
building or structure demolished after adjudging it to be dangerous or a
nuisance.  See Michaud v. Bangor, 159 Me. 491, 494 (1963) ("The act of
demolition, properly premised, was within the ordinant power of the city
and was, therefore, not ultra vires").  See also  Eugene McQuillin, The Law of
Municipal Corporations § 24.561 (3d ed. 1989) ("a municipality in the
exercise of its police power may, without compensation, destroy a building
or structure that is a menace to the public safety or health").  The City
therefore had the authority to issue an order of demolition.

II.

	[¶12]  The court determined that, in addition to the notice given and
the hearing provided, in order to comply with the due process
requirements of Article 1, Section 6-A of the Maine Constitution and the
Fourteenth Amendment of the federal constitution, the City was required to
provide the Kirkpatricks with a list of the specific defects that render the
property dangerous and a nuisance, and grant them a reasonable time to
make the necessary repairs.
	[¶13]  The due process clauses of the Maine and federal Constitutions
guarantee due process before the state deprives a citizen of a property
right.{6}  See Board of Overseers of the Bar v. Lefebvre, 1998 ME 24, ¶ 15,
707 A.2d 69, 73.  See also U.S. Const. amend. XIV, § 1;
Me. Const. art. 1, § 6-A.  The process due an individual will "vary from case
to case . . . to assure the basic fairness of each particular action according to
its circumstances."  Fichter v. Board of Envtl. Protection, 604 A.2d 433, 437
(Me. 1992) (quoting Secure Env'ts, Inc. v. Town of Norridgewock,
544 A.2d 319, 324-25 (Me. 1988)).  When assessing whether an individual's
due process rights have been violated, we analyze three factors:

[f]irst, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function
involved and administrative burdens that the additional or
substitute procedural requirement would entail.

Balian v. Board of Licensure in Medicine, 1999 ME 8, ¶ 10, 722 A.2d 364,
367 (quoting Mathews v. Eldridge, 424 U.S. 319, 356 (1976)).
	[¶14]  There is no dispute that destroying the Kirkpatricks' building,
valued by the City for tax purposes in 1997 at $25,600, affects an important
private property interest that implicates due process.  See Michaud v. City of
Bangor, 159 Me. 491, 494-95 (1963).
	[¶15]  Nor is there any dispute that the Kirkpatricks were entitled to
notice and a hearing before any action was taken by the City against their
property.  This is not a case, however, where the municipality failed to
provide the property owners with sufficient notice and a public hearing. 
The City Council notified the Kirkpatricks, almost two months in advance,
that a public hearing would be held to determine "whether to condemn the
building or structure . . . as a dangerous building . . . ."  At the hearing, the
City presented testimony from the CEO, the Housing Inspector, and the City
Engineer, describing in great detail the structural defects in the building. 
The Kirkpatricks had a full opportunity to present contrary evidence.  The
issue presented is, in these circumstances, whether the Kirkpatricks were
entitled to be provided with a list of the specific repairs necessary to avoid
demolition and a reasonable amount of time to make such repairs.  The
"fundamental requirement of due process is an opportunity to be heard
upon such notice and proceedings as are adequate to safeguard the right
which the particular pertinent constitutional provision purports to protect." 
McNaughton v. Kelsey, 1997 ME 182, ¶ 6, 698 A.2d 1049, 1052 (citations
omitted).  The notice and opportunity for a hearing "must be granted at a
meaningful time and in a meaningful manner."  See Armstrong v. Manzo,
380 U.S. 545, 552 (1965).  
	[¶16]  The Kirkpatricks contend that they are entitled to something
beyond the notice they were given and the hearing they participated in. 
Although the individual property interest of the Kirkpatricks is an important
one, and the destruction of property is a drastic remedy that should 
not be ordered unless absolutely necessary, Miles v. District of
Columbia, 354 F. Supp. 577, 582, (D.D.C. 1973) (citing Childs v. Anderson,
73 N.W.2d 280 (Mi. 1955)),{7} nevertheless, in this case the action taken by
the City was justified.  Despite their property being "unfit for human
habitation" for over 15 years and despite receiving numerous complaints
and visits by the CEO, the Kirkpatricks have failed to make a significant
attempt at rehabilitating the property.  The Superior Court affirmed the
finding of the City that the building was dangerous and constituted a
nuisance within the meaning of 17 M.R.S.A. § 2851.{8}  The Kirkpatricks do
not challenge that factual finding.  The City provided the Kirkpatricks with
an appropriate forum to present a plan of rehabilitation or other alternatives
to demolition.  The Kirkpatricks failed to present any reasonable plan or
alternative.  Instead, the City Council was told that a depressed housing
market provided no incentive to the Kirkpatricks to repair and restore the
property and that they had no specific plan or intention to rehabilitate the
building.  Indeed the Kirkpatricks could not even guarantee that the
property would be rehabilitated in 18 months.  Based on the evidence before
it, the City could reasonably conclude that the Kirkpatricks had no intention
to repair and rehabilitate the property.  In the absence of such an intent and
of a plan to restore the property, the conclusion of the City that demolition
was the appropriate remedy was reasonable and due process did not impose
on the City the additional duty of providing the Kirkpatricks with a specific
list of the necessary repairs.
	[¶17]  If a building is a danger, or constitutes a nuisance, the City has
a substantial interest in eliminating that danger and that nuisance, and as
long as it comports with due process, the City, pursuant to 17 M.R.S.A.
§ 2851, may act to remove the building.  When, as here, the property has
been vacant for years, the property owners have received multiple notices of
problems with the building, and they present no plan and express no
intention to repair the building at the hearing convened for the very purpose
of determining whether the building should be condemned, due process
does not require yet another opportunity for the property owners to address
the deficiencies.  Moreover, imposing on the City in this case, the additional
responsibility of providing the owners with a list of the specific repairs
sufficient to prevent demolition would be unnecessary and an undue
administrative burden, and would allow a dangerous building to remain in
that condition for an indeterminate period of time.  The determination that
the building of the Kirkpatricks is dangerous and a nuisance was made only
after notice and a full hearing.  No reasonable alternative to the disposal of
that building was presented at that hearing.  17 M.R.S.A. § 2851 authorized
the disposal remedy chosen by the City and the due process afforded to the
Kirkpatricks was adequate.
	The entry is:
Judgment as to Count II is affirmed.  Judgment
as to Count I is vacated.  Remanded to the
Superior Court for the entry of a judgment for
the City of Bangor.
Attorney for plaintiffs:

Charles E. Gilbert III, Esq., (orally)
Gilbert Law Offices, P.A.
P O Box 2339
Bangor, ME 04402-2339

Attorneys for defendant:

John K. Hamer, Esq., (orally)
Norman S. Heitmann III, Esq.
City of Bangor Legal Department
73 Harlow Street
Bangor, ME 04401

FOOTNOTES******************************** {1} . On April 19, 1988, a City Council memo noted that the property was rapidly approaching condemnation. On August 2, 1989, a complaint was filed addressing the general condition of the building and yard. In 1993, in response to complaints, the City Council cited the Kirkpatricks for failing to remove junked cars from the premises. In 1994, neighbors complained that the Kirkpatricks failed to mow the grass and failed to remove trash from the yard. In response, the City Council issued an order to clean and mow. {2} . The Kirkpatricks had previously rented the house as a multi-dwelling residence. Because of a change in zoning laws and the loss of its legally non-conforming status, the property may only be used as a single-family or two-family dwelling. {3} . The Bangor Fire Department issued a memorandum stating that because of the property's deteriorated condition, in the event of a fire, the response should be limited to protection of exposure and that no interior attack should be undertaken. {4} . The Superior Court found in favor of the City on the claim for a taking without just compensation. {5} . 17 M.R.S.A. § 2851 provides that Whenever the municipal officers in the case of a municipality, or the county commissioners in the case of the unorganized or deorganized areas in their county, find that a building or structure . . . is structurally unsafe; unstable; unsanitary; constitutes a fire hazard; is unsuitable or improper for the use or occupancy to which it is put; constitutes a hazard to health or safety because of inadequate maintenance, dilapidation, obsolescence or abandonment; or is otherwise dangerous to life or property, they may after notice and hearing on this matter adjudge the same to be a nuisance or dangerous and may make and record an order prescribing what disposal must be made of that building or structure. {6} . "This Court 'has long adhered to the principle that the Maine Constitution and the Constitution of the United States are declarative of identical concepts of due process.'" State v. Rosado, 669 A.2d 180, 182 (Me. 1996) (quoting Penobscot Area Hous. Dev. Corp. v. Brewer, 434 A.2d 14, 24 n.9 (Me. 1981)). {7} . See also Eugene McQuillin, The Law of Municipal Corporations § 24.561 (destruction of property is a "drastic remedy" and therefore must be a remedy of last resort); City of Minot v. Freelander, 380 N.W.2d 321, 324 (N.D. 1986) (destruction of property is a remedy of last resort). {8} . The Superior Court, in affirming the findings of the City Council, noted that the record reflected that the building has "structural deficiencies, possible fire hazards and inadequate maintenance".