Crow v. City of Springfield

15 F. App'x 219
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 12, 2001
DocketNo. 00-3510
StatusPublished
Cited by8 cases

This text of 15 F. App'x 219 (Crow v. City of Springfield) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crow v. City of Springfield, 15 F. App'x 219 (6th Cir. 2001).

Opinion

PER CURIAM.

In this appeal, J. Harvey Crow seeks reversal of the district court’s decision granting summary judgment to the City of Springfield, Ohio, in an action brought under 42 U.S.C. § 1983. Crow alleged that his property was taken without due process of law when the City contracted to have his property cleaned up after finding the property to be a nuisance pursuant to local ordinance. Because we find there are no material facts in dispute, we conclude that summary judgment was properly granted and affirm.

PROCEDURAL AND FACTUAL BACKGROUND

The facts in this matter are not in dispute. This litigation arises out of the efforts of the City of Springfield to abate what it deemed to be a nuisance on a parcel of real property owned by the plaintiff-appellant J. Harvey Crow. By order dated October 10, 1994, the City notified Crow that the Code Enforcement Manager declared Crow’s property to be a public nuisance. The City ordered Crow to abate [221]*221the nuisance within 15 days of the receipt of the letter by removing a number of items, including an accumulation of tires, from the property.1 The letter also informed Crow that, if he failed to comply with the order, this would result in the City’s abating the nuisance and assessing the costs of the abatement to Crow. In addition, the order advised Crow that any appeal was required to be filed with the Code Enforcement Manager within 10 days of the order’s receipt.

Crow did not abate the nuisance, nor did he file an appeal. Instead, during the ensuing months, the parties exchanged correspondence about cleaning up Crow’s property.2 The result of this correspondence was fruitless, however.

On February 21, 1995, Mary J. Wells, the City’s Manager of Code Enforcement, wrote to Crow stating that the City was in the process of securing bids to remove the junk and debris on Crow’s- property and requested that Crow contact her if he intended to do the work himself. Wells also reminded Crow that he would be billed for the costs incurred by the City in removing the junk and debris. Crow responded by letter dated February 27, 1995, that he was making arrangements to bring the property into compliance.

There is no evidence in the record that the parties communicated after Crow sent this last letter until late October of 1995. The district court noted that there was no indication that between February 27, 1995 and May 28, 1995 Crow did anything to clean up his property.

On October 24, 1995, Crow was served with a criminal summons, charging him with two counts of operating a salvage yard without a license on his property in Springfield.

Then, in a letter dated October 31, 1995, Wells informed Crow that the property had been recently inspected; Crow had not complied with the abatement order; and that the City intended to have the exterior and interior of the building cleaned. Wells also requested that Crow remove from his real estate, by November 13, 1995, all items of personal property he wished to keep.

Crow’s attorney wrote a letter to Robin DeBell, the City’s Law Director, stating that Crow was willing to cooperate, but he would not agree to be responsible for a contract executed by the City to have the property cleaned (which was in excess of $100,000). Crow’s attorney further explained that Crow was attempting to have the tires removed for a lesser sum and requested that the City refrain from voting on or executing a contract for a period of 21 days. Crow’s attorney wrote a second letter to DeBell stating that Crow was investigating options for removing the tries and would make every effort to have signed contracts to accomplish such by January 8,1996.

The City did not respond to Crow’s attorney’s letters. Instead, on December 21, 1995, the City Commission adopted Ordinance 95-406, which authorized the City Manager to enter into a contract with Rumpke Waste Incorporated to remove and dispose of tries and shredded rubber [222]*222from Crow’s property for an amount not to exceed $122,242.00 and to seek recovery of all sums expended in the effort.

Rumpke Waste proceeded to remove not only the tires and shredded rubber, which was the basis of Ordinance 95^106 and the December 29, 1995 contract, but all of the items listed in the Order of Abatement.

On January 10, 1996, Crow filed a complaint in district court pursuant to 42 U.S.C. § 1983 alleging that the passage of the ordinance caused him to suffer a deprivation of property without due process and a denial of equal protection, in violation of the Fourteenth Amendment, and a taking of property without just compensation, in violation of the Fifth Amendment.

The City filed a counterclaim seeking to recover $122,242.00, the sum it expended on its contract with Rumpke Waste.

On cross motions for summary judgment, the district court found that the City gave Crow notice of his right to appeal and that he failed to take advantage of such. Hence, the court held that the finding by the City that Crow’s property constituted a nuisance was entitled to res judicata. The court granted summary judgment to the City and ordered Crow to pay $122,242.00 on the City’s counterclaim. Crow’s motion for summary judgment was denied.

DISCUSSION

Standard of Review

We review a grant of summary judgment de novo. See e.g., Hammon v. DHL Airways, Inc., 165 F.3d 441, 447 (6th Cir.1999). In doing so, we must view the evidence and all inferences to be drawn therefrom in a light most favorable to the non-movant. See e.g., Keever v. City of Middletown, 145 F.3d 809, 811 (6th Cir.), cert. denied, 525 U.S. 963, 119 S.Ct. 407, 142 L.Ed.2d 330 (1998). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as matter of law.” Fed.R.Civ.P. 56(c).

Notice of Crow’s right to appeal the abatement order3

Crow concedes that an administrative decision is given preclusive effect when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate. See e.g., Astoria Federal Savings and Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991); United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). Further, Crow concedes that since the City’s Counterclaim is based on an ordinance authorizing the City Manager to enter into a contract to abate a public nuisance and then collect on said contract, the above standard applies.

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15 F. App'x 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crow-v-city-of-springfield-ca6-2001.