Dowd et al v. New Castle County Delaware

Filing 48

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 4/13/2011. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHRISTINE M. DOWD, DAMON M.
MORRIS, and ROY I. MORRIS,
Plaintiffs,

v.

)
)
)
)
)
)
)

Civ. No.1 0-82-SLR

NEW CASTLE COUNTY, DELAWARE, )
Defendant.

)
)

Thomas C. Marconi, Esquire and Paul E. Bilodeau, Esquire of Losco & Marconi, P.A.,
Wilmington, Delaware. Counsel for Plaintiffs.
James H. Edwards, Esquire, Harshal Purohit-Patel, Esquire and Megan K.
Sanfrancesco, Esquire of the New Castle County Law Department, New Castle,
Delaware. Counsel for Defendant.

MEMORANDUM OPINION

Dated: April 13, 2011
Wilmington, Delaware

R~
I. INTRODUCTION
On February 1, 2010, plaintiffs Christine M. Oowd, Trustee of the Victor L. Minter
Revocable Trust flblo Damon M. Morris (the "Trust"), Damon M. Morris in her individual
capacity, and Roy I. Morris (co"ectively, "plaintiffs") filed the present action against New
Castle County, Delaware (the "County" or "defendant"). (0.1. 1) The Trust is the record
owner of the single family residence located at 414 Foulkstone Road in Wilmington,
New Castle County, Delaware (the "Premises"). (Id. at ~ 3) In their complaint, plaintiffs
argue that the defendant's instant ticketing system, which allows the County to collect
civil penalties for property code violations prior to providing a hearing on the issue,
violates the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
Plaintiffs brought this suit as a class action on behalf of a" County residents who
have been fined under the accused ordinance. (Id. at ~ 28) A motion to certify class is
pending. (0.1. 10) In their complaint, plaintiffs requested injunctive relief against the
enforcement of the accused ordinance, damages in the amount of the penalties
collected by defendant under the ordinance, punitive damages and costs. (0.1. 1 at ~
36) The court previously granted in part and denied in part defendant's motion to
dismiss for failure to state a claim. (0.1. 24) Thereafter, whereas plaintiffs did not meet
the required showing of irreparable harm, the court denied plaintiffs' request for a
preliminary injunction and, concurrently, it ordered that the parties engage in focused
discovery. (0.1. 26) Currently before the court are the parties' cross-motions for
summary judgment. (0.1. 37, 38) The court has jurisdiction over the present suit

pursuant to 28 U.S.C. § 1331. For the reasons that follow, the court denies plaintiffs'
motion and grants defendant's motion.

II. BACKGROUND
This case involves defendant's adoption and enforcement of ordinances relating
to the maintenance of private property in New Castle County. Plaintiffs Damon and Roy
Morris have resided on the Premeses for the past fourteen years. (0.1. 1 at,-r 3 & ex. M;

0.1. 5 at 3) On this property exists a "brush pile" - a pile of tree limbs and twigs constructed by Mrs. Morris fourteen years ago. 1 The brush pile existed sans concern
until May 2009, when it ignited the dispute underlying the current litigation.

A. New Castle County Code
The court's discussion of the (2008) code at issue is best framed by a review of
the laws it amended. In 2005, the County enacted "Substitute NO.4 to Ordinance No.
04-057 as amended by Floor Amendment No.1" (the "2005 Ordinance"), creating
Chapter 7 of the New Castle County Code entitled "Property Maintenance Code" (the
2005 "PM Code"). (0.1. 40 at SJ3 et seq.) The PM Code is derived from the
International Property Maintenance Code and addresses many common property
concerns, for example, accumulation of rubbish and improper maintenance of exterior
structures. The adoption of the PM Code by the 2005 Ordinance was expected to
"have no discernable fiscal impact" on the County. (Id. at SJ5 ("Fiscal Note"»

1The Delaware News Journal reported in February 2010 that the brush pile is
approximately six feet by three and a half feet in size. See
http://m.delawareonline.com/detail.jsp?key=299466&rc=ts&full=1 (last accessed May
21, 2010). Defendant has included several color photographs of plaintiffs' brush pile in
connection with its motion. (0.1. 38, ex. 1)

2

As enacted, the 2005 PM Code provided for both civil and criminal enforcement
of its provisions. Criminal actions could be initiated by either the Code Official 2 or the
County Attorney in the Courts of the Justices of the Peace, with convictions being
appealable to the Court of Common Pleas. (Section PM 106.3.2.2 (2005),3 citing 11
Del. C. § 5917) Violations of the 2005 PM Code were deemed misdemeanor offenses
and carried penalties ranging from $200 to $500 for the first criminal conviction and
from between $250 to $1000 for a second conviction. (Section PM 106.3.2.3 (2005»
Separate criminal convictions could be obtained for each day any violation of the PM
Code went unabated. (Section PM 106.3.2.4 (2005» Alternatively, the 2005 PM Code
provided that the County Attorney (or his or her designee) could initiate a civil
proceeding for injunctive relief "to prevent, restrain, correct, abate, remove, or enjoin
any violation" of the PM Code in the Court of Chancery. (Section PM 106.3.3 (2005»
Administrative enforcement was a third avenue of governmental redress
provided for by the 2005 PM Code. Under this enforcement scheme, notice of the
violation would first be provided to the owner or person{s) responsible for the property.4
(Section PM 106.3.1.1 (2005» Notice was not required where the same violation was

~he PM Code defines "Code Official" as "[t]he Department of Land Use

employee designated by the General Manager of the Department of Land Use who has
the authority to administer and enforce this Chapter, or his or her duly authorized
representative." (0.1. 40 at SJ19)
3For ease of reference, the court adopts the form of citation utilized in the PM
Code and cites the code directly. The 2005 PM Code is of record at 0.1. 40 (at Bates
nos. SJ3-SJ31).
4The PM Code refers to the "owner" of or "person responsible" for a property; for
simplicity, the court will refer simply to the "owner" to denote an alleged PM Code
violator.

3

previously noticed (at any time), or when the violation jeopardized the health and safety
of the public. (Section PM 106.3.1.1.3 (2005))
Section PM 106.3.1.2 provided for a pre-deprivation show cause hearing, as
follows:
Pre-deprivation show cause hearing. If such violations are not remedied within
the time specified, the Code Official shall schedule a Show Cause Hearing and
provide the person an opportunity to defend his ... conduct at a Show Cause
Hearing prior to any penalty being imposed. After such Show Cause Hearing,
the Code Official shall render a decision within twenty (20) days and send a
written letter to the person informing them of his or her decision and detail the
reasons for any adverse action taken. Any decision made by the Code Official is
appealable pursuant to Section PM 106.3.1.5.

A two-hundred dollar ($200.00) administrative fine was assessable "for each day
that the violation continue[d] in addition to any expense incurred by the County for the
removal or abatement of the violation." (Section PM 106.3.1.4.1 (2005» The owner
was also deemed responsible for the costs of the enforcement of the 2005 PM Code as
well as the costs of removal of the violation, or remediation, abatement, demolition, and
the like. Those costs would be imposed as "liens on the property to the extent
permitted by law." (Section PM 106.3.1.3 (2005»
An appeal process was provided by the 2005 PM Code. Adverse decisions by
the Code Official following the show cause hearing could be appealed (for a fee) to the
Board of License, Inspection and Review (the "BUR") within twenty (20) days of the
written decision. 5 (Section PM 106.3.1.5.1 &2 (2005» A public hearing was then
afforded within forty-five (45) days of the filing of the appeal. (Section PM 106.3.1.5.2

5The 2005 PM Code provides for an appeal fee as set forth in an appendix to
chapter 6 of that code, which does not appear to be of record.

4

(2005» A property owner could request a stay of the action being appealed by
submitting a written request to the General Manager of the Department of Land Use,
who was to grant the stay unless the Code Official demonstrated that such a stay would
jeopardize the public welfare. (Section PM 106.3.1.5.6 (2005» The BUR was required
to render a written decision within twenty (20) days of the public hearing. (Section PM
106.3.1.5.4) The BUR's decision could be appealed by writ of certiorari to the
Delaware Superior Court. (Section PM 106.3.1.5.8 (2005»
In June 2008, defendant adopted "Substitute No.1 to Ordinance No. 08-073 to
amend New Castle County Code Chapter 7" (the "2008 Ordinance"). (0.1. 1 at 119, ex.
B)6 The recitals section to the 2008 Ordinance detail the defendant's rationale in
amending the PM Code (hereinafter, the "2008 PM Code"). Defendant asserted that
the criminal penalties imposed by the 2005 PM Code were ineffective, citing an
approximately six month wait between the filing of criminal charges by the Office of
Code Enforcement and the scheduling of a trial. (ld., ex. B) By contrast, "subjecting
property owners to civil penalties will allow for quicker resolution of code enforcement
cases, have a greater deterrent effect on this unlawful conduct, and also eliminate the
costs associated with criminally prosecuting offenders[.)" (Id.) Unpaid civil penalties

6The bill amending Ordinance No. 08-073 is of record as exhibit B to the
complaint. It was introduced on June 10, 2008, adopted by the County Council of New
Castle County on June 24, 2008 and signed by then county executive Christopher
Coons on July 1, 2008. The changes were codified through Ordinance No. 09-117 on
December 8,2009. A complete copy of the 2008 PM Code (absent the recitals) is
docketed as an exhibit to plaintiffs' opening summary judgment brief. (0.1. 39) It is also
available online at
http://library.municode.com/HTMU11287I1eveI3/PTIICO_CH7PRMACO_ART1STPRMA
.html (last accessed April 4, 2011). Hereinafter, the court will cite the 2008 PM Code
directly.

5

could be added to defendant's property tax billing for the cited property, and may give
rise to property liens. (Id.) Defendant also "intend[ed] to create a new appellate
procedure applicable to the civil penalties imposed to make the appellate procedure
more efficient and ensure the uniform and proper application of the [PM Code's]
provisions." (Id.) It was expected that the new provisions would generate over $37,000
in net revenue in the first year and enable defendant to add over $276,000 directly to
the property tax bill for collection. (Id. ("Fiscal Note"»
In enacting the 2008 Ordinance, defendant established what is commonly
referred to as the "Instant Ticketing System for Common Violations" (the "ITS"). The
ITS may be used to issue tickets to the "owner" of a property, regardless of whether he
or she resides on the premises, for violations of the 2008 PM Code sections relating to:
prohibited growth of weeds and grass; accessory structures; inoperable or unregistered
vehicles; oversized vehicle parking; parking of vehicles; outside storage of household
items; responsibility to keep shrubs and trees trimmed; swimming pools; outside
storage of debris; accumulation of rubbish; and disposal of rubbish. (Section PM
106.3.1.2 (2008»
The following ITS procedure was established by the 2008 PM Code. Upon
receipt of a complaint, a "notice of alleged violation(s)" is mailed to the owner.
(Sections PM 106.3.1.2.1 & PM 106.3.1.2.2 (2008» The owner is thereafter
responsible for correcting the violation within ten (10) calendar days. If the Code
Official determines that the violation persists beyond this point, a $50 ticket is issued by
mail. "This civil penalty shall double if not paid within thirty (30) calendar days from the
date of the citation." (Section PM 106.3.1.2.1 (2008» A Code Official is not required to

6

provide a violation notice prior to ticketing the same violation occurring within a twelvemonth period. (Id.) The 2008 PM Code (like its predecessor) provides that a separate
citation may issue for each twenty-four (24) hour period that the condition giving rise to
the initial citation continues. (Section PM 106.3.1.2.2 (2008» These additional
penalties also double if not paid after thirty (30) days. (Id.)
The appeal process for the ITS is described as follows.
Section PM 106.3.1.2.4, Appeals. The owner of a property aggrieved by any civil
penalty imposed pursuant to this Section may appeal to the Department of Land
Use Code Official by sending a detailed written explanation of the grounds for
the appeal, along with payment in full of the civil penalty, to the Code Official
within twenty-one (21) business days of the date of the citation. The Code
Official shall forward the payment to the Office of Finance, which will credit such
payment. The Code Official shall issue a written decision affirming, modifying,
reversing, revoking or vacating the civil penalty within forty-five (45) calendar
days of receipt of the written explanation of the grounds for the appeal. In the
event the civil penalty is reversed, revoked, vacated or decreased in amount, the
appellant shall be reimbursed for payment of the portion of the civil penalty
vacated or decreased. Each citation received must be appealed separately.
The decision of the Code Official must be appealed in accordance with Section
PM 106.3.1.5, Administrative Appeals.
(Section PM 106.3.1.2.4 (2008)(emphasis added»
It appears as though this citation (to PM 106.3.1.5) is incorrect, insofar as
Section PM 106.3.1.5 concerns "Administrative penalty provisions" such as fines and
the institution of remedial action, while Section PM 106.3.1.6 concerns "Administrative
appeals." According to Section PM 106.3.1.6, an appeal of the Code Official's decision
(or any enforcement action under the 2008 PM Code) may be taken to the BLiR for an
appeal fee within twenty (20) days of the issuance of the adverse written decision. A
public hearing will be held within forty-five (45) days of the filing of the appeal, and the
BLiR shall issue its decision within twenty (20) days of the hearing. (Sections PM

7

106.3.1.6.2&4 (2008}) As with the prior scheme, a stay of the action being appealed
may be requested in writing to the General Manager of the Department of Land Use.
"The stay will be granted unless the Code Official can demonstrate that the granting of
the stay would jeopardize the health, safety, or welfare of the public." (Section PM
106.3.1.6.6 (2008)) (emphasis added) The BUR's decision may be appealed by writ of
certiori to the Delaware Superior Court. (Section PM 106.3.1.6.8 (2008)) These appeal
provisions do not differ from the 2005 PM Code.
The 2008 PM Code also provides for the "[a]batement of [a] violation" by the
Code Official or his designee when an owner "fails to correct the violation after due
notice, either actual or constructive, has been given to the person responsible, and
where such person has had the opportunity to be heard by an administrative tribunal or
court of competent jurisdiction on the issue of the violation." (Section PM 106.4 (2008))
(emphasis added) The County is permitted to seek reimbursement for all costs of
abatement by, inter alia, attaching a lien to the property.7 An appeal of the abatement
costs may be made to the BUR or pursued in litigation, however, an unsuccessful
litigant must pay the County's attorney fees. (Sections PM 106.4.1 &2 (2008})
A significant difference between the 2005 and 2008 PM Code concerns the
ability of an accused to contest an initial citation under the ITS. The pre-deprivation

7"The owner of the property or person responsible for the building, structure,
premises or equipment shall be responsible for all costs associated with the
enforcement of this Code and the investigation, removal, remediation or abatement of
Code violations including the costs of reports, studies and opinions prepared by design
professionals, the institution and maintenance of temporary safeguards, restoration of
unsafe buildings, structures or equipment, demOlition, and reasonable attorney fees
associated with the above. The costs shall be liens on the property to the extent
permitted by law." (Section PM 106.3.1.4 (2008})

8

show cause hearing is no longer available for these certain (more common) types of
property code violations. (Section PM 106.3.1.3 (2008) (excluding citations given under
Sections PM 106.3.1.2); compare Section PM 106.3.1.2.4 (providing procedure to
appeal instant ticket»

Plaintiffs argue that the 2008 PM Code violates the Due Process

Clause of the Fourteenth Amendment by depriving individuals of their property (Le.,
money) as a condition precedent to any opportunity to contest the charge.
The court also adds that, although there is no appeal fee associated with the first
level of review (appeal to the Code Official), see Section PM 106.3.1.2.4 (2008). the
2008 PM Code provides a fee for filing an appeal of the Code Official's decision to the

BUR. (Sections PM 106.3.1.6.7 & 101.8 (2008» It does not appear that either party
has submitted the relevant appendix containing the fee schedule, however, the parties
do not debate that the appeal fee to the BUR was, at least at the time utilized by
plaintiffs, a non·refundable fee of five hundred dollars ($ 500).

B. The 2008 PM Code as Applied to Plaintiffs
The court next describes the plaintiffs' actual experiences with defendant's ITS.
On May 8,2009, plaintiffs received a "Courtesy Letter" from the County's Department of
Land Use dated May 6, 2009 (the "courtesy letter"). (0.1. 40 at SJ36·SJ38)8 According
to Code Enforcement Officer Christopher Yasik ("Yasik"), the courtesy letter was sent in
response to a complaint for the property regarding "debris piles in the backyard where
foxes and raccoons have set up nest." (0.1. 38, ex. 4 at ~ 3) The courtesy letter

8 The court will hereinafter cite the summary judgment record where applicable.
Certain documents were not resubmitted during this round of briefing and, in those
cases, the court will cite the relevant documents in other locations in the record, for
example, exhibits to the complaint.

9

provided that, on May 6,2009, "the Office of Code Enforcement received a complaint
alleging violation{s) of [the PM Code] on [their] property." (0.1. 40 at SJ36) Plaintiffs
were informed that, on or after May 18, 2009, the property would be inspected and "a
$50 ticket will be issued for each and every violation found." The courtesy letter
provided a list of ten potential offenses,9 but did not specify which was the subject of the
May 6 complaint. Plaintiffs were advised that "[t]o avoid receiving a ticket(s) please
carefully read the Instant Ticketing Process below and make sure your property is free
from any and all of the above violations." (/d.) (emphasis added)
On May 12, 2009, Mr. Morris executed a "Request for Extension to Comply" with
New Castle County Code Enforcement. (0.1. 39, ex. B) The form request listed Yasik
as the Code Enforcement Officer, and stated that plaintiffs were "out of town until May
21,2009." (Id.) Plaintiffs requested an extension through May 31, 2009 and provided
the following "plans for project completion and code compliance;" the "brush pile will be
modified per inspector/enforcement officer's requirement. Kerns Brothers will do the
work." (Id.) On May 20,2009, the National Wildlife Federation ("NWF") sent plaintiffs a
letter recognizing the brush pile as an official Certified Wildlife Habitat site, along with
"Backyard Wildlife Habitat" certificate No. 118,999. (0.1. 1, ex. M)10
Yasik states that he met with Mr. and Mrs. Morris at their request at the property

9Specifically: (1) overgrown grass; (2) accessory structure in disrepair; (3)
vehicles or trailers stored on the property; (4) junk, debris, or trash; (5) trash and
garbage accumulation or improper disposal; (6) oversized vehicle; (7) vehicle parked on
the lawn; (8) outdoor storage of household items; (9) swimming pool maintenance; or
(10) unkept bushes, shrubs and trees. (0.1. 40 at SJ36)
10rhe details surrounding plaintiffs' application to the NWF remain unclear. The
parties do not discuss the brush pile's protected status on summary judgment.
10

on May 29, 2009 prior to the first scheduled inspection following the courtesy letter.
(D.I. 38, ex. 4 at ~ 4)
The conversation focused on the pile of yard debris being a compost pile, I
advised them that the pole needed to be better defined and within some sort of
fencing or container much like the compost bins next to their driveway. Mrs.
Morris felt the pile was acceptable, but that they would research information on
the proper construction of a compost pile.

(Id.) According to Yasik, he performed a first inspection on June 5, 2009. Although he
determined that the pile of yard debris remained. he was not able to take adequate
pictures due to the weather and did not issue a ticket on that date. (Id. at ~ 5) Yasik
returned on June 15, 2009 and found a "Backyard Habitat" sign next to the pile. After
confirming with the Delaware Nature Society that they had issued the sign to the
Morrises, and assuming that the program was administered by the State of Delaware,
Yasik states that he closed the case as of June 18, 2009. (Id. at ~ 6)
Another complaint about the brush pile was received by defendant on July 1,
2009, on which date Yasik again inspected the property and informed plaintiffs that the
case was reopened. (Id. at ~ 7) Yasik states that he advised Mrs. Morris that he had
consulted with his superiors and the Delaware Nature Society and was informed that
backyard habitats are still required to comply with New Castle County Code. (Id.)
Yasik warned Mrs. Morris that if a violation continued he would issue a ticket. (Id.)
Yasik reinspected the property on July 3 and July 22, 2009 - dates that were
automatically generated by defendant's computer system. (Id. at ~ 8) Yasik did not
issue tickets on those dates "because [he] saw [that] the Morris[es] were trying to
resolve the issue and [he] felt a ticket was not required." (Id.) Yasik emailed Mr. Morris

11

on August 25, 2009 notifying him that he had been informed to treat the case as a
"standard debris case" and was scheduled to reinspect the property on September 8,
2009, at which time he would issue a ticket if no progress was made. (0.1. 38, ex. C)
The property was inspected on September 10, 2009, at which time Yasik did not issue
a ticket. (0.1. 38, ex. 4 at 118)
On September 18, 2009, plaintiffs (through counsel) informed Yasik that Mrs.
Morris disagreed with defendant's position on the brush pile but would "[re-]construct a
brush pile that is satisfactory to her," after which defendant would be notified regarding
reinspection. (0.1. 38, ex. D) Following another inspection on October 1, 2009, Yasik
issued an instant ticket (no. 979023) on October 2, 2009 (hereinafter, the "October 2
ticket"). (Id. at 119; 0.1. 40 at SJ39-SJ41) The ticket characterized the violation as the
"outside storage of debris," in violation of PM 302.11, and assessed a $50 fine. (Id.)
Plaintiffs were advised that, for each twenty-four (24) hour period that the violation
continued, a new civil penalty could be assessed, and that initial and additional civil
penalties would double if not paid within thirty (30) days of the respective citations. (Id.)
An information sheet provided with the ticket detailed plaintiffs' right to appeal: (1) each
penalty must be appealed separately to the Department of Land Use within 21 days of
the citation; (2) the appeal should be addressed to the Hearing Officer and consist of an
appeal form along with a "detailed explanation of their grounds for the appeal;" (3) "[t]he
ticket must be paid in order for an appeal to be received;" and (4) a decision would
issue in writing within forty-five (45) days. A website address for the "Appeals Form"
and the address to mail the appeal were provided. (Id.)
Plaintiffs (hereinafter through counsel) attempted to appeal the October 2 ticket
12

to the Department of Land Use by filing the appeal form without advance payment of
the $50 civil penalty; the form was returned on October 15, 2009 with a letter stating
that an appeal would not be considered without full payment of the civil penalty. (D.1.
38, ex. E, ex F) Also on October 15, 2009, the Office of Code Enforcement issued
instant ticket no. 984803 to plaintiffs for failure to remedy the first cited violation
(hereinafter, the "October 15 ticket"), whereby plaintiffs were informed that their civil
penalties now totaled $100. (D.1. 1, ex. H)11
Plaintiffs filed another request for an extension to comply on October 23,2009,
stating as follows:
Property owners are advised by counsel that condition is not a violation of the
New Castle County Property Maintenance Code. What the Officer characterized
as "debris" is in fact part of a Backyard Wildlife Habitat. Attached is a certificate
of recognition to that effect. To remove the "debris" would destroy the habitat. If
it is ultimately determined that our habitat is in violation it would be removed
promptly.
(D.1. 38, ex. G) Barbara Scott-Cooper ("Scott-Cooper"), a Complaints Specialist
assigned by defendant to supervise its Code Enforcement Officers, was the individual
who received plaintiffs' October 28,2009 request for an extension of time. (D.1. 38, ex.
1 at mJ 3-4) Scott-Cooper claims that she reviewed the file, containing photographs
(taken September 9, October 1, October 14, and October 26,2009) which she
considered to depict "piles of branches strewn across the property" rather than a wildlife
habitat. (ld. at 1f 6) Considering this and also the facts that Yasik had been working
diligently with plaintiffs and that plaintiffs had already received a prior extension (on May

11The court cites certain documents attached to the complaint that were not
resubmitted on summary judgment; such documents bear a citation associated with D.1.

1.
13

I

19,2009), Scott-Cooper decided to deny the request for another extension. (Id. at mI
6-8)
On October 26,2009, plaintiffs remitted $100 with an appeal form and an
explanation that the brush pile was a "Community Wildlife Habitat" per the Delaware
Nature Society. (0.1. 38, ex. H) Bya letter dated November 3, 2009, plaintiffs were
advised by Scott-Cooper that "[w]e have received your request for an extension [of time
to correct the code violation pending appeal] and this letter is to inform you that your
request has been denied." (0.1. 38, ex. I) (emphasis in original) No reason for the
denial of an extension was given in this letter. Meanwhile, a third ticket had issued to
plaintiffs on October 28,2009. (0.1. 38, ex. J) (referencing ticket no. 989332)
On November 5, 2009, Vincent G. Kowal ("Kowal"), Administrative Hearing
Officer with the Department of Land Use, issued a letter to plaintiffs entitled "New
Castle County Code Official Notice of Instant Ticket Appeal Decision" addressing
plaintiffs' appeal dated October 15, 2009 concerning the first two tickets (the
"November 5 decision"). (0.1. 38, ex. J) In denying plaintiffs' appeal, Kowal recognized
plaintiffs' "attempt to provide a habitat for friendly creatures" but expressed concern that
"brush piles can also provide an attraction for pests such as rats and snakes."12 (Id.)
Although plaintiffs' appeal for the October 5 and October 15 tickets was denied, the
October 28 ticket was vacated U[b]ecause of the crossing of [] communication via the

121n his affidavit, Kowal states that the reason for his denial of plaintiffs' appeal
was "based on the code which did not exclude wildlife habitats from the definition of
rl.lbbish." (0.1. 38, ex. 3 at 11 11) This rationale is not included in Kowal's
correspondance.

14

U.S. Postal Service."13 (Id.) Plaintiffs were reminded that "a new citation can be issued
once for each twenty-four (24) hour period the condition remains" and that the
November 5 decision could be appealed to the BUR. (Id.)
Scott-Cooper states that, on November 13, 2009, she contacted the Delaware
Nature Society regarding potential resolutions to the situation. (0.1. 38, ex. 1 at 118) It
was her understanding from that call that there were many ways for plaintiffs to create a
backyard habitat without maintaining piles of branches on the property. (Id.) It was
also Scott-Cooper's understanding that the Steward for the Backyard Habitat program
(with whom she had spoken) would visit plaintiffs at the property to "work with the
occupants on creating a habitat that did not include the IJse of debris." (Id.) This was
conveyed to plaintiffs' counsel on November 13, 2009. (Id. at 119) Scott-Cooper was
not aware of plaintiffs' first appeal at this time. (Id. at 1110)
On November 16, 2009, plaintiffs attempted to appeal the November 5 decision
to the BUR by filing a form "Application for Hearing before the Board of License,
Inspection & Review" with the Department of Land Use. (0.1.38, ex. L) Plaintiffs
provided a copy of the NWF's recognition of the brush pile as a Backyard Wildlife
Habitat and an explanation that Community Wildlife Habitats were being encouraged in
the area. (Id. at ex. L, ex. N) Also on November 16, 2009, plaintiffs sent a letter to
David Culver ("Culver"), General Manager of the Department of Land Use, enclosing a
copy of their application for a BUR hearing and asking that "further enforcement be
stayed pending the Board's decision and all further proceedings in this matter pursuant

131t is Kowal's own policy to vacate tickets issued pending appeal. (0.1. 38, ex. 3
at 1112) Kowal states that he developed this policy in March 2009. (Id.)
15

to PM § 106.3.1.5.6." (0.1.40 at SJ69)
The following day, plaintiffs' appeal to the BUR was rejected and returned
because plaintiffs neglected to pay the applicable $500.00 non-refundable filing fee to
the BUR. (0.1. 38, ex. M) Plaintiffs re-filed their papers on November 20, 2009 with the
$500.00 fee. (Id., ex. N) An instant ticket (no. 995682) was issued to plaintiffs on
November 23,2009. (0.1. 40 at SJ70) Plaintiffs sent a follow-up letter to Culver on
November 30,2009 reiterating that they asked for a stay of enforcement and requesting
that the November 23,2009 ticket be withdrawn. (Id. at SJ82-83)
A hearing on plaintiffs' appeal (from the November 5 decision) was held before
the BUR on December 23,2009. (0.1.38, ex. 0) The hearing was scheduled 27 days
after defendant received the re-filed appeal, exclusive of the day of receipt. 14 (0.1. 38 at
13) At the conclusion of the December 23, 2009 hearing, the BUR announced verbally
its decision that it was reversing Kowal's decision insofar as plaintiffs did not violate the
2008 PM Code. "[C]ounsel for all concerned agreed to an extension of the date for the
publication of the Board's written decision." (Id.) No written decision issued by the date
the complaint in this case was filed on February 1, 2010. On March 1,2010, an "Instant
Ticket Statement" was mailed from defendant to plaintiffs assessing the $50 penalty
from the November 23,2009 ticket along with a $50 fee for nonpayment. (0.1. 40 at
SJ71) It is not clear whether (and when) the November 23, 2009 instant ticket and/or
the late penalty was voided, but there is no indication that these were paid nor any

14According to Elizabeth Bartholomew, Kowal's assistant, it is often difficult to
coordinate a hearing date because the BUR members are volunteers and not
defendant's employees. By implication, December 23, 2009 was the first date she was
able to schedule the panelists. (0.1. 38, ex. 5 at 11" 4)
16

allegation by plaintiffs that they are owed a refund in this regard.
The BUR issued its written decision on March 15,2010, wherein BUR noted,

inter alia, that: (1) plaintiffs tend to the brush pile daily; (2) it existed without complaint
for 25 years; (3) the brush pile has a living ecosystem and is visited regularly by birds,
rabbits and chipmunks; (4) neither snakes nor vermin have been seen or reported in
connection with the brush pile; and (5) the brush pile does not include debris or trash.
(0.1. 38, ex. 0) After noting further the County's arguments, the BUR voted (2 to 1) to
grant plaintiffs' appeal for the following concise reasons:
The materials in Applicants' back yard are not stored materials. The materials
are part of a living ecosystem and natural habitat. There is constant turnover of
the materials used in the brush pile and the materials do not fall into the category
of rubbish or debris. The Applicants' brush pile is not in violation of the Code
sections cited by the Department. The Board did not reach the constitutional
issue [raised].
(Id.) Defendant refunded plaintiffs' $100 - the amount paid in connection with

plaintiffs' October 2 and October 15, 2009 tickets - in April 2010. (0.1. 40 at SJ51)

C. The 2008 PM Code as Currently Applied
In its papers, defendant emphasizes that, in view of the current litigation, it has
effectuated certain changes in its administration of the ITS. James Smith ("Smith"), the
Assistant General Manager for the Department of Land Use, testified that defendant
modified its use of the courtesy letter in November 2009. (0.1.41, ex. 2 at 6-7) The
letter now describes which of the (ten) potential violations were actually observed on
the property. (Id.) Smith also states that a draft policy went into effect in October 2010
whereby a second ticket is not issued for thirty (30) days in order to be sure that a
ticketed party does not take appeal within the twenty-one (21) days allotted. (Id. at 110-

17

12) If an appeal is filed, "that's communicated back to the support staff and code
enforcement and they go into the case and manipulate it further to make sure that no
tickets will be heard pending the outcome of that appeal." (Id. at 112) Smith testified
that he did not believe that a stay pending appeal to the BUR need be requested under
the "new program," insofar as ticketing is already placed on hold pending appeal, or
until it's "finally resolved." (Id. at 113) As noted previously, it is also Kowal's policy not
to issue tickets during the pendency of an appeal. (0.1. 38, ex. 3 at 11 12) Finally,
defendant emphasizes Smith's testimony that Code Enforcement has never issued
tickets on a daily basis. (0.1. 41, ex. 2 at 20,46, 97) Smith stated that "we've never
used [the power to ticket daily], although we would reserve that power, as we do with all
our code violations ... And that would be for someone who's really egregious that has
significant problems that are really bringing down the community." (Id. at 97)
III. STANDARD
A court shall grant summary judgment only if "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears
the burden of proving that no genuine issue of material fact exists. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986). "Facts that

could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from
which a rational person could conclude that the position of the person with the burden
of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co.,

18

57 F.3d 300, 302 n.1 (3d Cir. 1995) (internal citations omitted). If the moving party has
demonstrated an absence of material fact, the nonmoving party then "must come
forward with 'specific facts showing that there is a genuine issue for trial. '" Matsushita,
475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e». The court will "view the underlying facts
and all reasonable inferences therefrom in the light most favorable to the party
opposing the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The
mere existence of some evidence in support of the nonmoving party, however, will not
be sufficient for denial of a motion for summary judgment; there must be enough
evidence to enable a jury reasonably to find for the nonmoving party on that issue. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails
to make a sufficient showing on an essential element of its case with respect to which it
has the burden of proof, the moving party is entitled to judgment as a matter of law.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

IV. DISCUSSION

A. Applicable Law
Plaintiffs bring the current action under 42 U.S.C. § 1983 alleging that the
enforcement of the 2008 PM Code using the ITS violates the Fourteenth Amendment,
which provides that a State may not "deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1. A court must evaluate a
procedural due process claim in two stages. It must determine whether the plaintiff has
"a property interest protected by procedural due process" and, thereafter, determine
"what procedures constitute 'due process of law.'" See Schmidt v. Creedon, -

19

F.3d -,

2011 WL 1134259, *6 (3d Cir. 2011) (citation omitted). The court has previously found
that
[p]laintiffs have established protectable property interests, both in the
unrestricted use and enjoyment of their land, see Acierno v. New Castle County,
Civ. No. 93-579,1995 WL 704976 at *17-18 (D. Del. Nov. 1, 1995), and in
maintaining the use of their money between "(a) the time of paying the [instant
ticket] and (b) the time of [review.]" See City of Los Angeles v. David, 538 U.S.
715-17 (2003).
(D.1. 24) The court now further evaluates plaintiffs' claim that due process requires a
hearing prior to the deprivation of either property right. 15
Under Mathews v. Eldridge, 424 U.S. 319 (1976) (hereinafter, "Mathews"), the
following factors must be considered in determining what process should be afforded:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the 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 the
fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.
424 U.S. at 335. Further,
[a]n "as-applied" challenge consists of a challenge to a regulation's application
only to the party before the court. City of Lakewood v. Plain Dealer Publ'g Co.,
486 U.S. 750,758-59 [] (1988). If an as-applied challenge is successful, the
statute may not be applied to the challenger, but is otherwise enforceable. Id.

Newsom ex reI. Newsom v. Albemarle County School Bd., 354 F.3d 249, 257 nA (4th

15Plaintiffs do not argue that the ITS is unconstitutional on its face. (D.1. 45 at 2)
Rather, plaintiffs argue that, as applied, the 2008 PM Code violates their procedural
due process rights according to the standards set forth in Mathews.
The court agrees with defendant that plaintiffs commingled arguments relating to
a facial challenge of the Code with an "as applied" procedural due process theory.
Insofar as plaintiffs clearly state in their reply papers that they do not pursue a facial
challenge, the court will evaluate only whether defendant's enforcement of the 2008
PM Code (using the ITS) violates procedural due process.
20

Cir. 2003); Accord, e.g. U.S. v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) ("An asapplied [constitutional] attack [] does not contend that a law is unconstitutional as
written but that its application to a particular person under particular circumstances
deprived that person of a constitutional right.") (emphasis added). Therefore, the
court's review of the Mathews factors focuses on the 2008 PM Code as it was applied
to plaintiffs in this case, not as it was or may be applied to other individuals.
B. Mathews Factors

1. Private interests
According to plaintiffs, "[t]he private interests at stake are the homeowner's right
to use their property as they wish, and keep the money they earn, until they have some
opportunity to be heard in defense of defendant's charge that they have committed a
violation." (0.1.39 at 15; see also 0.1. 45 at 3) (emphasis added) Here, plaintiffs paid
$100 in civil penalties for their October 2 and 15, 2009 tickets in order to appeal their
tickets to the Kowal. 16 The Supreme Court has previously held that the deprivation of a
monetary interest - or "the private individual's interest in maintaining the use of money
between (a) the time of paying [the ticket(s)] and (b) the time of the hearing" - is far less
serious a harm than, for example, the deprivation of employment. See City of Los

16Plaintiffs do not specifically identify which fees make up the monetary interest
at stake here. Plaintiffs' argument that fees must be paid before they have any
opportunity to be heard appears to target the prepayment of civil penalties before the
first round of appeal pursuant to 2008 PM Code Section 106.3.1.2.4. (0.1. 43 at 10-11;
0.1.45 at 4) Plaintiffs address the $500 BUR appeal fee paid by them in the context of
the risk of erroneous deprivation. (0.1. 45 at 5) While plaintiffs discuss the risk of
"thousands of dollars in fines and non-payment penalties" and potentially the ultimate
loss of a home at Sheriff's sale, these consequences were not borne by plaintiffs, and
the court is not asked to undertake a facial review of the statute. (0.1. 39 at 17)
21

Angeles v. David, 538 U.S. 715 at 717-18 (2003) (finding that the city's 27-day delay in
affording a vehicle impound hearing did not violate federal due process); see also
Mathews, 424 U.S. at 340-41 (distinguishing the deprivation of monetary benefits "not
based upon financial need" and assistance "given to persons on the very margin of
subsistence"). Here, $100 is a small interest. Plaintiffs' monetary private interest is
further minimized by the fact that plaintiffs do not allege that the deprivation worked a
serious harm upon them. See City of Los Angeles, 538 U.S. at 718 (endorsing the
government's view that "any loss in the time value of the money can be compensated
by an interest payment").
Plaintiffs mention briefly their property right in the unrestricted use and
enjoyment of their land. See Acierno v. New Castle County, Civ. No. 93-579,1995 WL
704976 at *17-18 (D. Del. Nov. 1, 1995) (citing Parratt v. Taylor,451 U.S. 527, 536-37
(1981». Insofar as defendant did not remediate or abate plaintiffs' brush pile,17 or
otherwise disturb the brush pile, no deprivation of plaintiffs' rights occurred in this
sense. Plaintiffs point to no case law establishing a right to the unrestricted enjoyment
of land free of risk or threat of future governmental action vis a vis the property.
2. Risk of erroneous deprivation
Plaintiffs' arguments on this factor are not entirely clear. Plaintiffs assert that
"continuous ticketing for the same violation and the threat thereof creates a substantial
risk of an erroneous deprivation regardless of the frequency." (D.1. 45 at 4)
(emphasis added) Plaintiffs also assert that, as no oral hearing is provided at the first

17{Section PM 106.3.1.4 (2008»
22

stage of review, "many times all of the issues considered by the [official] in the appeal
are not addressed in the homeowner's letter." (ld. at 5) Plaintiffs do not identify why
this is so. At her deposition, Mrs. Morris could only recall one thing that she omitted
from her letter - a comment about rats and snakes, which would be, in hindsight,
responsive to Kowal's ultimate denial of the appeal. (0.1.38, ex. C2 at 40-42) Mrs.
Morris testified, however, that in her mind the letter was "the best we could do" at the
time it was sent. (ld. at 48-49) Mr. Morris testified that "Mr. Marconi sent in [ ]
everything that we could have sent in at the time," and there was nothing that could
have been added to the letter. (0.1. 38, ex. C1 at 45) While plaintiffs argue that "many
times the written submissions of the accused homeowner do not address everything
submitted by the code inspector in support of the charge," they do not point out what
information was available to Kowal but allegedly withheld from them at that stage. (0.1.
43 at 6; 0.1. 45 at 5) It is not disputed that, at the first level of appeal, there are no
limitations imposed on the type or quantity of material submitted as the "written
explanation" for the grounds of appeal. (Section PM 106.3.1.2.4 (2008»
Plaintiffs also argue that the "second level of appeal does nothing to reduce the
risk of an erroneous deprivation, [as the non-refundable $500 filing fee to the BUR]
deters appeals because the fee is at most times higher than the amount of the fines at
stake in the appeaL" (0.1. 45 at 5) Plaintiffs emphasize that their appeal was the only
appeal taken to the BUR, and it was successful. (0.1.40 at SJ-92) Between July 2009
and November 2010, 1474 counts (from 557 tickets) were appealed to the first stage, of
which 709 counts were overturned and 720 were upheld - a ratio of approximately 1: 1.
(Id. at SJ91-SJ92) Plaintiffs further argue that the ITS post-deprivation proceedings are

23

not prompt, nor was the return of their money in this case. (D.1. 45 at 5) Plaintiffs
suggest alternatives by which defendant could improve upon its ITS procedure, in their
view. 18 (D.I. 39 at 18; D.1. 43 at 11-12)
Defendant points out that the violations subject to the ITS are relatively
straightforward - for example, overgrown grass, unkept bushes, shrubs, and trees,
structures in disrepair or debris on the premises. (D.1. 40 at SJ36; Section PM Code
106.3.1.2 (2008» The violation is photographed and reviewed before a ticket is issued.
(D.1. 41, ex. 2 at 21; D.1. 43 at 6 19) The foregoing should indicate that the risk that a
ticket will be issued incorrectly in the first instance is relatively low, however, the near
1:1 reversal of ticketed counts at the first stage of review (by Kowal) cuts against this
proposition.

3. Governmental interest

18Under the heading of erroneous deprivation, plaintiffs "suggest that defendant
could easily implement some or all of the following: (i) staying all fines while a timely
appeal is pending and informing the accused at the time of ticketing that an appeal will
stay further enforcement; (ii) conducting a pre-deprivation Show Cause hearing [ ]; (iii)
reducing the amount of time by which the homeowner must file their appeal to ten (10)
days, and require the [code official] to decide the appeal within 20 days of the hearing;
(iv) use the same administrative methods for the pre-deprivation hearings (Le.
scheduling hearings, setting up files and hearing rooms) as are currently used with
Show Cause hearings; (v) do not require the Code inspectors to attend the
pre-deprivation hearings and allow the [code officer] to thoroughly cross examine the
accused homeowner on behalf of defendant; and (vi) dispense with the BUR appeal
and go directly from the [code official] to the Superior Court on writ of certiorari. These
substitute procedures will allow a homeowner with an honest disagreement with
defendant over the alleged violation to have an opportunity for a fair hearing, and not
materially affect defendant's ability to ensure reasonably prompt compliance by those
guilty of a violation." (D.1. 39 at 18)
19A1though the copies of the citations of record do not appear to contain the
photographs, plaintiffs concede that they are issued with the citations and do not
dispute that this occurred in their case.
24

Plaintiffs do not dispute that defendant has a legitimate interest in enforcing the
ITS to promote the public health, safety and welfare, with one exception. (D.I. 39 at 19)
Plaintiffs indicate that "it appears unlikely that defendant really considers the common
violations to be all that dangerous[, o]therwise, maintenance corporations owning
property in residential subdivisions would not be totally exempt from the ITS[.]" (Id.) At
his deposition, Smith explained that maintenance corporations, or corporations that
generally own the common element in a neighborhood, are exempt from the ITS for
several reasons: (1) boards of such corporations are volunteers; (2) once they become
aware of a violation, it takes time for the volunteers to figure out who in the community
is responsible; (3) the boards generally need to obtain members' approval before they
take action, such as spending money to remediate the violation; and (4) by the time the
corporation has control to act, several tickets may have issued. (D.1. 41, ex. 2 at 54-55)
Plaintiffs do not address this evidence in their reply papers. (D.1. 45)
Currently, defendant employs 15 code enforcement officials, 2 of which do rental
property inspections, and 13 of which are tasked with code enforcement, including the
2008 PM Code and ITS. (D.1. 40 at SJ84) Kowal, the sole Administrative Hearing
Officer for the Department of Land Use, testified that he spends 15% of his time on ITS
appeals. While plaintiffs suggest that Kowal can spend more of his time on such
appeals, Kowal also testified that he spends the remainder (and the majority) of his time
on rule-to-show-cause hearings, or bond process enforcement. (ld. at SJ75-SJ76)
Smith testified that, in order for defendant to conduct full evidentiary hearings, another
hearing office must be hired at Kowal's pay grade, which is between $80,000 and

25

$100,000 per year. 20 (0.1. 41, ex. 2 at 80-81) Defendant frames its interests as follows:
The government interests include protecting the health, safety and welfare of the
public. [0.1. 41, ex. 2 at 102] Providing for a full-fledged hearing on the record
would require having to hire another hearing officer, adding support staff for the
hearing officer, costs associated with keeping the building open late, including
staffing security. [Id. at 85] It would require additional computer equipment,
phone, desks and office space. [/d. at 91-92] It would require the Code
Enforcement Officers to prepare for the hearing, wait for the hearing to convene
and be present to give testimony through the hearing. [0.1. 38, ex. B6 at 1113]
(0.1.38 at 23; 0.1.41 at 11-12)21 Plaintiffs do not point to contrary evidence. (0.1. 41,
0.1. 43) Plaintiffs argue primarily that defendant: (1) did not specify the alleged fiscal
burden; (2) derives significant revenue from the ITS; and (3) provided for hearings
under the 2005 PM Code. (0.1. 39 at 20) Nevertheless the foregoing evidence weighs
strongly in defendant's favor. See City of Los Angeles, 538 U.S. at 719 (holding that a
27-day delay in holding a hearing regarding the deprivation of $134.50 in automobile
towing fees "reflects no more than a routine delay substantially required by
administrative needs" and noting that such hearings would be "impossible if the city is to
be able to enforce [its] parking rules").

4. Discussion
As discussed above, plaintiffs had a diminutive interest in maintaining the use of
their $100 prior to Kowal's review of the first appeal. With respect to the third Mathews
factor, the parties agree that the government has a legitimate interest in enforcing the
ITS to promote the public health, safety and welfare. (0.1. 39 at 19) The record

2°Kowal currently has one administrative assistant, who scheduled the BUR
hearing in this case. (supra n. 15; 0.1.40 at SJ80)
211n so arguing, defendant relies on Smith's testimony and, additionally, that of
Martin Kirk, the Community Governing Administrator for New Castle County.

26

indicates that hundreds of instant tickets are issued under the ITS annually. Defendant
has provided uncontraverted evidence that providing pre-deprivation hearings would
effect a hardship upon it in terms of increased personnel and administrative costs. (D.I.
38 at 23; D.1. 41 at 11-12)
There are several arguments to be addressed with respect to the second

Mathews factor, or risk of erroneous deprivation through the procedures used and the
value of additional safeguards. As an initial matter, the ITS is not flawless. As the data
indicates, the ticketing procedures used, which include photographing the violation
following the code enforcement officer's visual inspection, do not avoid inappropriate
ticketing almost 50% of the time. 22 Moreover, defendant states that it modified its use
of the courtesy letter in November 2009 to better identify and describe the precise
violation which may be subject to ticketing. (D.1. 41, ex. 2 at 6-7) While subsequent
and duplicative tickets in certain cases could impart an improper deprivation of the civil
penalties pending appeal, it is not clear from the record how often this has occurred.
Notwithstanding, the focus in this case is not on the accuracy of the ITS or the
2008 PM Code as applied to others, but as it was applied to plaintiffs. As discussed
above, plaintiffs had a diminutive interest in maintaining the use of their $100 prior to
Kowal's review of the first appeal. Plaintiffs argue that the lack of a stay in the 2008 PM
Code pending the first stage of review increases the risk of an erroneous deprivation of
ticket moneys pending appeals, insofar as property owners may continue to be ticketed
until a stay pending appeal to the BUR may be requested pursuant to Section PM

22For example, thus far in fiscal year 2011, of 88 counts appealed, 45 have been
upheld and 43 reversed. (D.1. 40 at SJ91-SJ92)

27

106.3.1.6.6) (2008). (0.1. 45 at 6) While an express stay provision at the first stage
would be valuable in preventing repeated ticketing and, potentially, the risk of erroneous
deprivation of monetary interests, Kowal and Smith testified that they routinely stay
further ticketing. 23 (0.1. 38, ex. 3 at 11 12; 0.1. 41, ex. 2 at 110-13) In plaintiffs' case,
only two tickets were received following the initiation of their appeal, spaced apart by
several weeks.24 The October 28,2009 ticket was voided by Kowal, and while there is
no specific indication that the November 23, 2009 ticket was voided, there is also no
indication that it was paid (or pursued by defendant).
Certain safeguards inherent to the ITS - photographs and/or pre-issuance
review - were insufficient to prevent plaintiffs' initial ticketing in this case. However, the
conflict here was not borne of false information or description, rather, disputed opinion
regarding statutory interpretation. The court discerns no additional or substitute
procedural safeguards that would be useful under these circumstances. As detailed
supra, Yasik spoke with plaintiffs before even the first ticket was issued. Although

plaintiffs would prefer a predeprivation hearing, they had an opportunity to discuss their
concerns with Yasik in person.
Plaintiffs generally complain that the $500 BUR filing fee is unreasonable, both

23The court's primary concern in this case has been the tension between an
owner's right to appeal and the provision in the 2008 PM Code allowing ticketing during
the appeal process.
24This is consistent with Smith's (unrebutted) testimony that Code Enforcement
has never actually issued tickets on a daily basis. (0.1.41, ex. 2 at 20,46,97)
Defendant's computer system automatically generates dates upon which subsequent
inspections (and ticketing) may occur, and there is no indication that the reinspections
are scheduled daily. (0.1. 38, ex. 4 at 11 4)
28

as excessive vis a vis the $50 civil penalty for the original citation and because it is
nonrefundable even in the event of a successful appeal. However, plaintiffs do not
specifically address the $500 fee in the context of the second Mathews factor. (0.1. 39
at 17-18; 0.1. 43 at 11-12) Plaintiffs concede that "allowing the homeowner to appeal
without prepaying the fines will likely increase the number of appeals above the current
rate of 2.2% of citations." (0.1. 43 at 11) Under this rationale, allowing appeals to the
BUR with a lower (or with no) filing fee would, if anything, increase the number of
appeals to that reviewing body. As discussed above, defendant has proffered evidence
that predeprivation hearings would increase its administrative burden. Defendant
contends that eliminating the $500 appeal fee would encourage frivolous appeals, and
an increased number of appeals would be "unmanageable for the BUR and [would]
require numerous additional attorneys and support staff to process effiCiently and
quickly." (0.1. 40 at 15) Plaintiffs disagree, but do not point to contrary evidence or
suggest an alternate regime. 25 (0.1.43 at 12) There is no indication that the $500 filing
fee worked a hardship on plaintiffs in this case.
The 2008 PM Code does not expressly provide timelines or other parameters for
the repayment of fines. Plaintiffs in this case received their $100 about two and a half
months after the issuance of the BUR's written decision (by plaintiffs' count, 82 days).

25The court notes a lack of evidence of record specific to plaintiffs' proposals
(supra n.18), for example, reducing the window for appeal from 20 to 10 days and
lowering the number of days by which decisions need be rendered. While plaintiffs'
suggestions appear practical, there is no testimony to this effect, and it is not clear
whether (and how) they would impact defendant. While good ideas may exist to
improve the 2008 PM Code, the court is not tasked with maximizing its efficiency - only
with determining whether it satisfies procedural due process as contemplated under the
Constitution.
29

(D.1. 40 at SJ51) There is no indication of why such delay occurred, and additional
safeguards to this effect would be valuable in preventing the erroneous deprivation of
monetary interests. Notwithstanding, the delay in this regard is not excessive.
Having evaluated the relevant Mathews factors, the court finds that the additional
costs associated with providing a predeprivation hearing in this context outweigh its
utility in reducing the risk of error, and that plaintiffs' interest in the prompt repayment of
their civil penalty falls short of justifying a requirement that a predeprivation hearing be
constitutionally required. See City of Los Angeles, 538 U.S. at 717-18 (2003); Reich v.
Beharry, 883 F.2d 239, 243 (3d Cir.1989) (delay in receiving payment pending litigation

of breach of contract claim relating to services contract with public entity did not justify
predeprivation procedures).

V. CONCLUSION
For the foregoing reasons, the court denies plaintiffs' motion for summary
judgment26 and grants defendant's motion for summary judgment. An appropriate order
shall issue.

26While plaintiffs' motion was captioned a "motion for partial summary judgment,"
a review of plaintiffs' complaint indicates that their 42 U.S.C. § 1983 claim is plaintiffs'
only count and, therefore, judgment for defendant is appropriate. The court will deny
plaintiffs' pending motion for class certification in view of its holding.
30