## Facts

- Melvyn and Helaine Edelhertz owned a four-unit multiple-dwelling building in the City of Middletown, New York.
- In 1995, they transferred title to the Melvyn Edelhertz and Helaine Edelhertz Revocable Living Trust (Edelhertz).
- The building was in the City’s R-1 single-family zoning district and operated as a nonowner-occupied multiple dwelling that was lawful only as a preexisting nonconforming use.
- In 2009, the City’s Common Council amended the zoning code by adopting an “Amortization Law” intended to eliminate nonowner-occupied multiple dwellings in the R-1 district (and other districts) over time.
- The City justified the amendment by finding that these uses were linked to increased code violations and police calls and were undesirable and inconsistent with the character and development goals of the R-1 district.
- Before adoption, the City provided notice of the proposed law and public hearing by publishing a public-hearing notice in the legal classified section of the Times Herald-Record, the primary local newspaper.
- The City did not mail or otherwise directly send notice of the proposed amendment to Edelhertz.
- In August 2010, Edelhertz attempted to sell the property. The prospective buyer learned of the Amortization Law through a title report.
- Edelhertz and the buyer sought confirmation from the City that the property remained a lawful nonconforming use that could continue despite the Amortization Law, but the City did not respond.
- In October 2010, the City sent Edelhertz a letter notifying him of the Amortization Law. The buyer withdrew its offer.
- Edelhertz sued under 42 U.S.C. § 1983, claiming the City violated procedural due process by failing to provide individualized notice (such as mailed notice) before enacting the Amortization Law.

## Issues

1. Whether the City violated the Fourteenth Amendment’s procedural due process requirements by enacting the Amortization Law without mailing individualized notice to a known, affected property owner.
2. Whether the Amortization Law was legislative (generally applicable) rather than adjudicative (property-specific) for purposes of determining what process was due.

## Decision

- The court denied Edelhertz’s motion for partial summary judgment on liability.
- The court granted the City’s cross-motion for summary judgment.
- The court held that enactment of the Amortization Law was a prospective, generally applicable legislative action.
- Because the action was legislative, the court concluded that published notice and the public-hearing process satisfied procedural due process; individualized mailed notice was not constitutionally required.
- Judgment was entered for the City on the procedural due process claim.

## Legal Principles

- Procedural due process requires (1) a protected property or liberty interest and (2) a deprivation of that interest without constitutionally adequate procedures.
- Notice must be reasonably calculated, under the circumstances, to inform interested persons and allow an opportunity to object.
- The Constitution distinguishes between adjudicative government action directed at specific individuals (which may require individualized procedures) and legislative action of general applicability (for which the ordinary legislative process ordinarily supplies the required process).
- For generally applicable legislative enactments such as broad zoning amendments, due process does not typically require individualized mailed notice to each affected owner; publication notice and an opportunity to participate in the legislative hearing process may suffice.
- A claimed interest in the continuation of a zoning regime or in the continuation of a nonconforming use does not, by itself, convert a broadly applicable zoning change into an adjudication requiring individualized notice.

## Conclusion

The court held that Middletown’s 2009 Amortization Law was a generally applicable, forward-looking zoning amendment adopted through a public legislative process, so the City’s published legal notice and public hearing satisfied procedural due process even though the City did not mail individualized notice to the Edelhertz Trust.


Edelhertz v. City of Middletown, 943 F. Supp. 2d 388 (2012)