Harmon v. Sussex County et al
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 9/12/2019. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SANDRA HARMON ,
Civil Action No. 17-1817-RGA
SUSSEX COUNTY, State of Delaware
Administration , et al. ,
Sandra Harmon , Hartsville , South Carolina. Pro Se Plaintiff.
Kevin J. Connors, Esquire , and Artem io C . Aranilla , II , Esquire , Marshall , Dennehey,
Warner, Coleman & Goggin , Wilmington , Delaware . Counsel for Defendants.
Wilmington , Delaware
Plaintiff Sandra Harmon appears pro se. She commenced this lawsuit to protect
her private property and preserve her right to restore her home located in Rehoboth
Beach , Delaware .1 (D.I. 1; D.I. 1-1 at p.8). Plaintiff alleges violations of her rights under
the First and Fourteenth Amendments to peaceful enjoyment of the property, and
unlawful tactics by Sussex County government officials. Plaintiff alleges jurisdiction by
reason of diversity pursuant to 28 U.S.C . § 1332. (D .I. 1 at 1). Before the Court are the
parties' cross-motions for summary judgment. (D .I. 59 , 61). Also before the Court is
Plaintiff's motion to strike Defendants' reply brief.2 (D.I. 73). The matters have been
Plaintiff commenced this action in the United States District Court for the District
of South Carolina . All issues relate to real property located at 37533 Oyster House
Road in Rehoboth Beach , Delaware, that is owned by the "Leroy William Harmon
Heirs ," who include Plaintiff and Lefton Harmon . (D .I. 1 at 2-3). The matter was
transferred to this Court on December 19, 2017 . (D.I. 13, D.I. 14).
On April 7, 2017 , Sussex County Constable Ryan W. Stuart prepared a field
inspection report and found the property non-compliant with the Sussex County Housing
Code as "unfit for human occupancy" with an "unsafe structure" following an inspection
that found the property had been damaged due to fire. (D .I. 60-1 at 2-7). A demolition
Plaintiff did not file a verified complaint. Thus , the Court is precluded from treating it as
the equivalent of an affidavit for purposes of Fed . R. Civ. P. 56(e) . See Ziegler v. Eby,
77 F. App'x 117, 120 (3d Cir. 2003) .
The Court finds no basis to strike Defendants' reply brief. The motion will be denied .
order issued that provided the owners were to "raze" the structure by June 24, 2017 . (Id.
at 9) . If they failed to comply with the demolition order, the Sussex County Code Office
would have the structure razed and removed , the costs of razing and removal would be
charged against the real estate upon which the structure was located , and a lien would
be placed upon the real estate as provided in the Sussex County Code . (Id.). A copy of
the demolition order was sent by certified mail to the "Leroy William Harmon Heirs and
Sandra Harmon " at the address of record in New Castle , Delaware. (D.I. 60-1 at 11).
Lefton Harmon signed the return receipt. (Id.). Plaintiff alleges that she became aware
of the demolition order on June 23 , 2017 when Lefton Harmon read the contents of the
notice to her. (D .I. 1 at 2, 3) .
Plaintiff filed a case in the Superior Court of the State of Delaware in and for
Sussex County against Sussex County and Mike Castello , Harmon v. Sussex County,
Civ. A. No. S17C-06-035 ESB (Del. Super.) and sought an emergency injunction
against the demolition order for the Oyster House Road property. The parties entered
into a dismissal agreement that no action would be taken to demolish the property until
disposition of the matter by the Sussex County Board of Appeals. (D . I. 55 at 10). The
stipulation of dismissal states, "In the event [that] Sandra Harmon or any other owner of
the subject property fails to file an appeal with the Sussex County Board of Appeals
pursuant to Article Ill , Section 71-31(0) on or before August 15, 2017 , Sussex County
may proceed to enforce the Demolition Order." (Id.).
In the meantime , on July 25 , 2017 , the owners of the property received a Sussex
County violation from Defendant Kelly R. Passwater following an inspection that found a
shed on the property was illegally located and illegally being used as a dwelling. (D.I. 1-
1 at 8-9) . The owners were given an August 18, 2017 violation correction date. (Id. at
On or about August 31 , 2017 , Plaintiff was notified via email by Defendant
Michael Costello, Government Affairs Manager, Sussex County Administrative Bu ilding ,
that the demolition appeal hearing was set for September 20 , 2017 , and that there was
a $600 application fee for the hearing . (0 .1. 1-1 at 1-2) . On August 31 , 2017 , Plaintiff
sought a fee waiver due to financial hardship. (Id. at 3). Costello's email , dated
September 6, 2017, advised Plaintiff that the Board of Appeals had no process to waive
the fee and should it not be received by September 13, 2017 , the September 20 , 2017
hearing would be canceled . (Id. at 2).
On September 9, 2017 , Plaintiff emailed Costello and other Sussex County
employees stating that she had advised Costello on August 31 , 2017 that she could not
attend the September 20 , 2017 hearing due to a previously scheduled doctor's
appointment, and she asked Costello to reschedule the hearing and send her a waiver
form as an indigent citizen . (Id. at 4) . Plaintiff warned that she would seek an
emergency injunction in federal court if the hearing proceeded without her. (Id.).
Plaintiff received an email response the next day from attorney Jason Adkins , who told
[T]he scheduling is set based upon the next available date when the board
of appeals members are available. This is the same procedure for any
person requesting an appeal. . .. As was previously communicated , you are
permitted to have someone appear on your behalf and represent your
interests, even if you are unable to attend personally. The County does not
have, or offer, indigent fee waivers. Any person who requests a similar
appeal is required to pay the same fee being charged to you .
(Id. at 4) . Plaintiff did not pay the required fee and was notified on September 14, 2017
that the hearing was canceled due to her failure to pay the fee and that Sussex County
would resume its efforts to bring the property into compliance with the Sussex County
Code in accordance with the demolition order that was originally served in April 2017 .
(Id. at 5) . The Complaint alleges that demolition began on September 14, 2017. (D .I. 1
The Court takes judicial notice that on January 12, 2018 , a little over three weeks
after this case was transferred here, the Department of Finance of Sussex County filed
a monitions suit against Plaintiff and the other owners for delinquent sewer and water
bills and the demolition lien. See Department of Finance of Sussex County v. Harmon
Heirs , Civ. A. No. S18T-01 -002 (Del. Super.) at BL-1 .3 Monition was entered on
January 18, 2018 , and posted on the property on January 23 , 2018 . Id. at BL-6 .
Partnerships for Development, Inc. offered to purchase the property. (D.I. 62-6
at 1). Plaintiff rejected the offer on May 27, 2018 . (Id. at 5) . On May 30 , 2018 , a notice
of the Sheriffs sale was posted at the physical entrance of the property and , on May 31 ,
2018 , Plaintiff and the other property owners were notified by certified mail of a Sheriffs
sale of the real estate to take place on June 19, 2018 , at 9:30 a.m. See Civ. A. No.
S18T-01-002 at BL-16 , BL-17, BL-18 . According to Plaintiff in her verified motion for
injunctive relief dated June 5, 2018 , she made multiple payments on the water and
sewer bill and indicated it would be paid in full the month of June 2018 . (D .I. 27 at
10-14). In addition , she stated that Sussex County never attempted to arrange for
Court has access to the Superior Court docket via Bloomberg Law. "BL" is how
Bloomberg Law refers to docket entries.
payments on the demolition and she "just began to pay monthly on the outstanding cost
of demolition until the balance is paid in full." (Id. at
,m 15-17). Other than the County
sending Plaintiff "a bill of cost, nothing more was discussed about the demolition cost. "
(Id. at ,i 16).
On June 8, 2018 , Harmon filed a motion to dismiss and motion for injunctive
relief in the monition action , alleging violations of her constitutional rights. See Civ. A
No. S18T-01-002 at BL-10 . On June 18, 2018 , the Superior Court denied the motion
and ordered that the sale could proceed as scheduled on June 19, 2018 . Id. at BL-28 .
A notice of lis pendens was filed on June 19, 2018 and on June 21, 2018 , Harmon filed
a motion to invalidate and to dismiss. Id. at BL-30 . On June 19, 2018 , the property was
sold for $113 ,500 to Wayne D. Hudson , Robert J. Downes , and David R. Downes , the
highest bidder and , in turn , Harmon filed an objection to the sale followed by an
amended notice of objection . Id. at BL-35 , BL-36 , BL-44, BL-60 .4 On August 9, 2018 ,
Harmon filed a motion to dismiss. Id. at BL-51 .
On November 7, 2018 , the Superior Court stayed the matter while awaiting
resolution of the related federal civil cases Plaintiff had filed , Civ. No. 18-1021-RGA and
the instant case Civ. No. 17-1817-RGA. Id. at BL-51 . Harmon then filed a petition for a
writ of mandamus in the Delaware Supreme Court to compel the Superior Court judge
to dismiss the monition action . Id. at BL-53 , BL-56. The Delaware Supreme Court
dismissed her petition on December 3, 2018. In re : Harmon, 2018 WL 6332269 (Del.
Dec. 3, 2018).
The Superior Court docket shows that the returned writ originally reported only Wayne D. Hudson as the
highest bidder, but the amended writ reported all three as being the highest bidder.
A telephone conference in the monition action was held on December 19, 2018
to discuss the wording in the Superior Court's June 18, 2018 order that denied
Harmon's motion to dismiss and/or to transfer the monition action to federal court. (0 .1.
62-2 at 1-2; D.I. 70-1 at 20-21 ; Civ. A. No. S18T-01-002 at BL-58) . The order stated
that the "monition sale sought by [Department of Finance of Sussex County] is premised
upon the Defendants' (i.e ., Harmon) alleged failure to pay sewer and water fees ." (D.I.
62-2 at 1). Because Plaintiff had paid the water and sewer bill in full at the time the
order was entered , she questioned why her motion was not granted and why the sale
was allowed to proceed . (D .I. 70-1 at 20) . During the telephone hearing , the Court
stated that although the order states that the monition sale is premised upon the alleged
failure to pay the water and sewer bill , that was not the intent of the order and the Court
did not think that when the order was signed that the matter was limited solely to water
and sewer. (Id.) . The Court explained the order included the demolition assessment
because the demolition assessment was "all part of the monition , and it was all part of
the sales execution writ that proceeded. " (Id.) . The Court went on to explain that the
wording of the order "did not in any way affect the ability of the County to seek to collect
the demolition costs ." (Id.). On June 19, 2019 , an "affidavit of non-redemption" was
filed in the monition case. It advised that: (1) the property had been sold ; (2) Plaintiff
and the other heirs had not redeemed the property by paying all taxes, interest, and
costs within 60 days of the confirmation of the sale , as was permitted by Delaware law;
(3) there had been no objections to the sale ; and (4) "the sale was automatically
confirmed as a matter of course ." See Civ. A. No. S18T-01-002 at BL-59 .
Plaintiff claims: (1) Sussex County government officials intentionally violated her
First Amendment right to the peaceful enjoyment of her private property without
government interference ; (2) Sussex County government officials engaged in unlawful
tactics to displace African American families from their beach property via suspicious
house fires during the owner's absence from his or her home ; (3) Defendant
intentionally cut off the water supply to Plaintiff's property and made it impossible for
Plaintiff to stay in a shed on the property when she came for short vacations ; and
(4) Defendants sought to remove a shed on the property that had been in the same
location for over ten years in an attempt to prevent Plaintiff from using the property.
(D.I. 1 at 2).
Defendants move for summary judgment on the grounds that: (1) Plaintiff has
failed to adduce any evidence to support her claims ; (2) the Sussex County Code
addresses the issue of who is responsible for paying the demolition lien amount;
(3) Plaintiff has failed to cite to supporting authority or adduce evidence to support her
request for an order to reconstruct the home on the property; and (4) the challenge to
the required payment of an appellate fee to the Sussex County Board of Appeals fa ils.
Plaintiff moves for summary judgment on the grounds that: (1) she has provided proof
that Defendants violated their own policies and procedures in failing to afford her a
hearing on the demolition of her property; and (2) she has provided evidence that
Defendants intentionally denied her the right to due process and equal protection of
Sussex County policies.
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed . R. Civ. P. 56(a) . An assertion that a fact cannot be--or,
alternatively, is--genuinely disputed must be supported either by "citing to particular
parts of materials in the record , including depositions , documents, electronically stored
information , affidavits or declarations , stipulations (including those made for purposes of
the motion only) , admissions , interrogatory answers , or other materials ," or by "showing
that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact. " Fed .
R. Civ. P. 56(c)(1)(A) & (8) . When determining whether a genuine issue of material fact
exists, the court must view the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor. Scott v. Harris , 550 U.S.
372 , 380 (2007) ; Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). A dispute is
"genuine" only if the evidence is such that a reasonable jury could return a verdict for
the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242 , 247-49 (1986) .
The same standards and burdens apply on cross-motions for summary
judgment. See Appelmans v. City of Philadelphia , 826 F.2d 214 , 216 (3d Cir. 1987).
The Court liberally construes the Complaint as raising constitutional claims
pursuant to 42 U.S.C. § 1983. Section 1983 provides , "[e]very person who , under color
of any statute , ordinance, regulation , custom , or usage , of any State or Territory or the
District of Columbia , subjects , or causes to be subjected , any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights ,
privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress. "
42 U.S.C. § 1983. The statute does not create substantive rights , but instead provides
a remedy for violations of rights established elsewhere. City of Oklahoma City v. Tuttle ,
471 U.S. 808 , 816 (1985). To state a claim under Section 1983, a plaintiff must allege
that a person acting under the color of state law caused a deprivation of a right secured
by the Constitution. Parratt v. Taylor, 451 U.S. 527 , 535 (1981) ; Mark v. Borough of
Hatboro , 51 F.3d 1137, 1141 (3d Cir. 1995).
Equal Protection - Peaceful Enjoyment of Property
It appears that Plaintiff's equal protection claim to the peaceful use and
enjoyment of her property may be based upon a purported selective enforcement of the
Sussex County Code . To prevail on a claim based on an alleged selective enforcement
of the law in violation of the equal protection clause, Plaintiff must show: (1) that she
was treated differently from other similarly situated individuals, and (2) that this selective
treatment was based on an unjustifiable standard , such as race , or religion , or some
other arbitrary factor . . . or to prevent the exercise of a fundamental right. " Suber v.
Wright, 574 F. App 'x 207 , 211 (3d Cir. 2014) (internal quotation marks and citation
omitted) . Persons are "similarly situated " for equal protection purposes when "they are
alike in all relevant aspects ." Id. (internal quotation marks and citation omitted) .
There is no evidence of record to support a plausible inference of selective
enforcement of the laws, and there is no evidence that Plaintiff was treated differently
from similarly situated individuals. Instead , the evidence indicates that Sussex County
Code provisions were applied to Plaintiff as written with regard to the demolition of the
property and assessment of the demolition fee . See Sussex Cty. C. § 71-32 .5 In
addition, when Plaintiff sought to appeal , the rules were applied as written. See Sussex
Cty. C. § 71-31. 6 When Plaintiff questioned the fee required to appeal , she was told
Demolition Orders .
General. The Code Official may order the owner of premises upon which is
located any structure or part thereof which , in the Code Official's judgment, is so
old , dilapidated or has become so out of repair as to be dangerous , unsafe,
unsanitary or otherwise unfit for human habitation , occupancy or use so that it
would be unreasonable to repair the same , to raze and remove such structure or
part thereof or, if it can be made safe by repair, to repair and make safe and
sanitary or to raze and remove at the owner's option or, where there has been a
cessation of normal construction of any structure for a period of more than two
years , to raze and remove such structure or part thereof.
Order. The order shall specify a time in which the owner shall comply
therewith and specify repairs , if any. It shall be served on the owner of record or
an agent where an agent is in charge of the building and upon the holder of any
lien in the manner provided for service of a summons by a court of record . If the
owner or a holder of a lien of record cannot be found , the order may be served by
posting it on the main entrance of the building and by publishing it once each week,
for three successive weeks, in a newspaper of general circulation in accordance
with the rules of the Superior Court.
Restraining actions. Anyone affected by any such order may, within 30
days after service of such order, apply to a court of record for an order restraining
the Code Official from razing and removing such structure or parts thereof. The
court shall determine whether the order of the Code Official is reasonable , and , if
found unreasonable , the court may issue a restraining order.
Failure to comply. Whenever the owner of a property fails to comply with a
demolition order within the time prescribed , the Code Official shall cause the
structure or part thereof to be razed and removed , either through an available
public agency or by contract or arrangement with private persons, and the cost of
such razing and removal shall be charged against the real estate upon which the
structure is located and shall be a lien upon such real estate as provided in § 7133 of this Article.
Sussex Cty. C. § 71-32.
Board of Appeals ; rules and regulations. Each Board of Appeals shall adopt
and publish rules and regulations as may be necessary to govern its administrative
procedures and proceedings.
Procedure for appeals. Any person aggrieved by an action taken by the
Code Official may appeal from such action by filing written notice of appeal with
that the requirement was applied to everyone.7 When Plaintiff did not pay for the costs
of demolition , it created a lien on the property and the Sussex County sought to collect
the lien in the manner provided by its Code. See Sussex Cty. C. § 71-33 8 . The facts
are uncontroverted. There is no evidence to support a claim that Defendants
intentionally violated Plaintiff's right to the peaceful enjoyment of her private property
without government interference. Therefore, Defendants' motion for summary judgment
will be granted and Plaintiff's motion for summary judgment will be denied as to this
the appointed County Board of Appeals or any Community Board of Appeals
having jurisdiction within 10 days after the giving or posting of notice of such action .
An appeal under this subsection shall stay the effect of the notice of violation or
condemnation and shall prevent the Code Official from proceeding with the
remedies provided under this chapter pending decision by a Board of Appeals. An
appeal to the Superior Court by an aggrieved person from a decision of such Board
of Appeals shall be made in the manner provided for appeals from administrative
Sussex Cty. C. § 71-31.
The Board of Appeals provides that the owner of a structure or their duly authorized
agent may appeal from the decision of the Building Official to the Board of Adjustments
and Appeals. Rule 14.1 of Rules of Procedure of the Board of Adjustments and
Appeals of Sussex County, Delaware ; See https://sussexcountyde.gov/boardadjustments-and-appeals (last visited Aug. 5, 2019) . The notice of appeal shall be in
writing and filed within 90 days after the decision is rendered by the Building Official ,
and a $600 fee shall accompany the notice of appeal.
Creation of Tax Liens . There is hereby created a tax lien on real property for moneys
expended by the County or a community for razing , demolition , removal or repairs of
buildings or abatement of other unsafe conditions constituting a threat to the public health
and safety where the responsible party refuses or fails to comply with the lawful order of
the Code Official after due notice thereof, either actual or constructive . Upon certification
of a tax lien to the appropriate County or community official by the Code Official , the
amount of such lien shall be recorded and collected in the same manner as other County
real estate taxes and paid to the County or community, when collected , by the appropriate
Sussex Cty. C. § 71-33.
Plaintiff contends that summary judgment is proper on her behalf because
Defendants violated their own policies and procedures in failing to afford her a hearing
on the demolition of the property. She further contends that, because the Board of
Appeals did not render a decision on her appeal , it had no lawful authority to demolish
the property. Plaintiff acknowledges that Costello , Adkins, and Passwater were not
members of the Board of Appeals , but contends they, nonetheless, acted outside the
scope of their official duties in dismissing Plaintiff's appeal and demolishing her
property. 9 She further argues that Defendants unlawfully took her property and sold it at
a Sheriff's Sale and that Defendants arbitrarily and capriciously applied rules ,
procedures, and policies, all in violation of her right to due process. 10
Given this admission , summary judgment is appropriate on behalf of these
Defendants. Liability in a 42 U.S.C. § 1983 action is personal in nature, and to be liable,
a defendant must have been personally involved in the wrongful conduct. In other
words, defendants are "liable only for their own unconstitutional conduct. " Barkes v.
First Corr. Med. , Inc. , 766 F.3d 307 , 316 (3d Cir. 2014), rev'd on other grounds sub
nom. Taylor v. Barkes, 135 S.Ct. 2042 (2015).
Plaintiff argues that Defendants committed fraud under 9 Del. C. § 8722(d) when the
monitions petition was filed in State Court even though the requirements for a monition
petition had not been met, that Defendants violated 25 Del. C. § 2903(b) , a statute that
provides the time-frame for when a monitions action may be brought, that Defendants
disregarded the Superior Court Rules of Civil Procedure, and that the monitions sale
should not have taken place . These claims are not raised in Plaintiff's Complaint and
are not considered by the Court. See Amboy Bancorporation v. Bank Advisory Grp.,
Inc. , 432 F. App'x 102, 111 (3d Cir. 2011) ("A plaintiff may not amend his complaint
through arguments in his brief in opposition to a motion for summary judgment.").
Without belaboring the point, Plaintiff sought, and was denied , injunctive relief in this
Court and in the Superior Court to stop the monitions sale. Once the sale took place,
Plaintiff had the option to set aside the sale by redeeming all taxes , interest, and costs,
but she did not. Any claims Plaintiff have regarding the monitions sale are more
properly raised in the State Court action .
Plaintiff may be raising a substantive due process claim , a procedural due
process claim , or both . The Court will address both .
The elements of a substantive due process claim are (1) the deprivation of a
fundamental property interest, Nicholas v. Pennsylvania State Univ. , 227 F.3d 133, 140
(3d Cir.2000) ; and (2) governmental deprivation of that property interest in a manner
that is arbitrary or shocks the conscience. See United Artists Theatre Circuit, Inc. v.
Township of Warrington , 316 F.3d 392 , 399 (3d Cir. 2003) ('"[T]he substantive
component of the Due Process Clause is violated by executive action only when it can
properly be characterized as arbitrary, or conscience shocking , in a constitutional
sense. "' (quoting County of Sacramento v. Lewis, 523 U.S. 833 , 847 (1998)) (internal
quotations omitted)) . The use and enjoyment of real property qualifies for protection
under substantive due process . See DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592 ,
600-01 (3d Cir. 1995), overruled on other grounds by United Artists Theatre Circuit, 316
F.3d at 399-402 ; but see Greenbriar Village, L.L.C. v. Mountain Brook City, 345 F.3d
1258, 1262 (11th Cir. 2003) (citing Board of Regents v. Roth , 408 U.S. 564 , 577 (1972))
(holding that property interests like those a home owner enjoys in his residence are
created and defined by state law rather than the Constitution) ; Regents of Univ. of Mich .
v. Ewing, 474 U.S. 214 , 229 (1985) ("While property interests are protected by
procedural due process even though the interest is derived from state law rather than
the Constitution ... substantive due process rights are created only by the
It is well established that the state has the right to regulate the use and
conditions of property to ensure the public safety and health , and that the public interest
demands that dangerous conditions be prevented or abated. See Keystone Bituminous
Coal Ass'n. v. OeBenedictis, 480 U.S . 470 , 491-92 (1987) (holding that abating a public
nuisance is not a taking under the Fifth Amendment because "[l]ong ago it was
recognized that 'all property in this country is held under the implied obligation that the
owner's use of it shall not be injurious to the community, ' .. . and the Takings Clause
did not transform that principle to one that requires compensation whenever the State
asserts its power to enforce it. ") (internal citation omitted) ; Camara v. Municipal Court of
San Francisco , 387 U.S. 523 , 537 (1967) (holding that code inspections aimed at
securing city-wide compliance with minimum physical standards for private property, but
conducted without a warrant procedure , were reasonable even though they lacked the
traditional safeguards that the Fourth Amendment guaranteed , because "the public
interest demands that all dangerous conditions be prevented or abated.") .
Here, the record reflects that the property was in a dangerous condition (D .1.60-1
at 2-7 ("Field Inspection Report" dated April 7, 2017 , and accompanying photographs))
and Plaintiff has provided no evidence otherwise . In addition , the record reflects that
the property was demolished in accordance with the procedures of the Sussex County
Code. There is no evidence to the contrary. Given the unsafe structure and that the
property was unfit for human occupancy, no reasonable jury could find that the
demolition in accordance with Sussex County Code rules and procedures shocks the
conscience . See Oavet v. City Cleveland, 456 F.3d 549 , 552 (6th Cir. 2006) (affirming
district court's holding that plaintiff's substantive due process claim failed because he
could not establish that municipal actions taken pursuant to a valid condemnation order
and in accordance with the procedures mandated by city and state law shocked the
conscience or were arbitrary and capricious) .
Procedural due process normally requires that a governmental deprivation of life,
liberty or property be preceded by notice and opportunity for hearing appropriate to the
nature of the case. Logan v. Zimmerman Brush Co., 455 U.S. 422 , 428 (1982) . "The
Due Process Clause permits persons whose interests may be adversely affected by
government decisions to participate in those decisions. " Matthias v. Bingley, 906 F.2d
1047, 1051 (5th Cir. 1990).
The record reflects that Plaintiff received notice that the property was unsafe and
unfit for human occupancy, a demolition order issued , and it provided a deadline to raze
the structure . Plaintiff was advised that the Sussex County Code Office would have the
structure razed and removed if the deadline was not met, and that the costs would be
charged against the real estate. When Plaintiff became aware of the demolition order,
she sought an emergency injunction in the Sussex County Superior Court as allowed
under the Sussex County Code. The parties then entered into an agreement that there
would be no action to demolish the property until the matter was heard by the Sussex
County Board of Appeals.
The Board of Appeals requires an appeal to be in writing and that a $600 fee
accompany the notice of appeal. The Board of Appeals adopts its own rules and
regulations to govern its adm inistrative proceedings and has no provision for waiver of
the fee. See Sussex Cty. C. § 71 -31 C. Plaintiff was notified of the fee requirement,
requested a waiver, advised that the Board of Appeals had no provision for a fee
waiver, that the Board of Appeals must receive the fee by September 13, 2017 , or the
September 20 , 2017 hearing would be canceled . When Plaintiff did not pay the fee , the
hearing was canceled , the Board of Appeals considered the appeal closed , and the
demolition proceeded .
Plaintiff asserts that her rights were violated because the Board of Appeals did
not waive the required $600 fee and then it dismissed her appeal when she did not pay
the fee . She relies upon§ 52-32.A of the Sussex County Code to support her position
that the Board of Appeals may vary the application of any provision of its Code. Title
52 , however, is inapplicable to the instant case . Its provisions refer to the Building
Code , not the Sussex County Housing Code found at Title 71.
As discussed , the Board of Appeals requ ires a $600 fee to file an appeal. Fixed
fees , such as the $600 fee , serve to deter the filing of frivolous appeals. See In re
Anderson , 511 U.S. 364 , 365-66 (1994) . And , in general , the payment of filing fees is a
precondition to docketing or opening a case . See Porter v. Department of Treasury,
564 F.3d 176, 179 (3d Cir. 2009) . When a litigant fails to pay the fees , the appellate
review may be dismissed . See, e.g., Barner v. Williamson , 461 F. App 'x 92 , 95 (3d Cir.
2012) (court of appeals acted within its power and authority in dismissing notice of
appeal for failure to pay filing fee) . In addition , an appellant's failure to take any step
other than the timely filing of a notice of appeal is grounds for the Board of Appeals to
take action it considers appropriate , including dismissal of the appeal or canceling the
appeal hearing . See, e.g., Barner, supra. As discussed , once the hearing was
canceled , Sussex County notified Plaintiff that it was resuming its efforts to bring the
property into compliance with the Sussex County Code .
Of note is that there is no evidence of record that Plaintiff appealed the fee issue
to the Superior Court following the closure of the appeal as provided in the Sussex
County Code. See Sussex Cty. C. § 71-31 .D (an appeal to the Superior Court by an
aggrieved person from a decision of such Board of Appeals shall be made in the
manner provided for appeals from administrative decisions) . Instead , she sought other
avenues to obtain the relief she sought. Thus, the evidence of record does not support
a finding that Defendants violated Plaintiff's right to procedural due process.
The record fails to establish that Defendants violated Plaintiff's right to due
process . Therefore , the Court will grant Defendants' motion for summary judgment and
deny Plaintiff's motion for summary on this issue .
Depriving African Americans of Beach Property
Plaintiff argues that there is a conspiracy afoot to deprive African Americans of
their beach property. She alleges , without evidentiary support, that Defendants doused
the property with gasoline and set it on fire for the purpose of obtaining it for financial
benefit and for the benefit of wealthy developers . She contends that once she rejected
the offer to purchase the property she was immediately served with the notice of the
Sheriff's Sale , and the property was sold .
The purchase offer was made by Partnerships for Development, Inc., which did
not purchase the property at the Sheriff's Sale . Instead, the property was purchased by
Wayne D. Hudson, Robert J. Downes , and David R. Downes . Plaintiff claims that West
Rehoboth Community Land Trust and its registered agent disguised themselves as
Partnerships for Development, Inc. , a non-existing Delaware Corporation . The Court
takes judicial notice that the official website for the State of Delaware indicates that
Partnerships for Development, Inc. does exist and that it was incorporated in the State
of Delaware on July 11 , 2014 . See
https://icis.corp .delaware.gov/Ecorp/EntitySearch/NameSearch .aspx (last visited Sept.
12, 2019) . Plaintiff provides no evidence to support her claim that entities or individuals
disguised themselves to purchase the property in a surreptitious manner.
There is no evidence of record to support Plaintiff's allegations. Therefore , the
Court will grant Defendants' motion for summary judgment and deny Plaintiff's motion
for summary judgment on this issue.
Interference in Use of Property
The Complaint alleges that Defendants: (1) intentionally cut off the water supply
to the property and made it impossible for Plaintiff to stay in a shed on the property
when she came for short vacations; and (2) Defendants sought to remove a shed on the
property that had been in the same location for over ten years in an attempt to prevent
Plaintiff from using the property.
Plaintiff's claims are unsupported by anything in the record . There is no evidence
that Defendants intentionally cut off the water supply. With regard to the shed , Plaintiff
and the other property owners received a violation notice because a recent site
inspection had verified that a shed on the property was being used and occupied in
violation of the Sussex County Code. The property owners were directed to cease the
activity and to conform to the Sussex County Code. The violation notice does not,
however, state the shed would be removed from the property.
Plaintiff's unsupported assertions do not suffice to defeat Defendants' motion for
summary judgment. Nor do they suffice for her to prevail on these claims . Therefore ,
the Court will grant Defendants' motion for summary judgment and deny Plaintiffs
motion for summary judgment on these issues.
Based upon the above discussion , the Court will : (1) grant Defendants' motion to
for summary judgment (D .I. 59); (2) deny Plaintiffs motion for summary judgment (D .I.
61) ; and (3) deny Plaintiff's motion to strike (D .I. 73) .
An appropriate order will be entered .
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