## Facts

- Elsmere Park Club, L.P. (the Club) owned the Elsmere Park Apartments, a 156-unit complex consisting of thirty-nine buildings, with one basement apartment in each building.
- After Hurricane Hugo in 1989 caused serious flooding, the Town of Elsmere (Town) prohibited the Club from renting the basement apartments while allowing continued use of the above-ground units; the Club boarded up the basements.
- In 1996, after increased vandalism, the Town directed the Club to brick over basement windows and seal the basement apartments.
- On October 1, 2002, during a pre-rental inspection, the Town’s code inspector detected a strong smell of mold.
- On October 4, 2002, the inspector returned with a representative from the Delaware Department of Public Health and observed extreme mold conditions in unoccupied basement areas.
- Based on a concern that hazardous mold in the sealed basements could spread to occupied units, the Town condemned the apartment complex and ordered evacuation.
- The Town did not hold a hearing before condemning the property.
- The Town did not inspect occupied units or take air samples to confirm whether mold had migrated to those units before issuing the condemnation.
- Local ordinances provided a post-condemnation administrative appeal (including review by a Board of Adjustment) to challenge the condemnation order.
- The Club began an administrative appeal but later abandoned it.
- The Club instead filed a 42 U.S.C. § 1983 action alleging denial of Fourteenth Amendment procedural due process for lack of a pre-deprivation hearing and for allegedly inadequate process after condemnation.
- The United States District Court for the District of Delaware granted summary judgment to the Town and individual defendants, reasoning that the Club was not entitled to relief because it failed to use the available post-deprivation procedures.
- The Club appealed to the United States Court of Appeals for the Third Circuit.

## Issues

1. Whether the Town violated the Club’s Fourteenth Amendment procedural due process rights by condemning and evacuating the apartment complex without providing a pre-deprivation hearing.
2. Whether the Town provided constitutionally adequate post-deprivation process through its administrative appeal mechanism, and whether the Club’s abandonment of that process barred its § 1983 procedural due process claim.

## Decision

- The Third Circuit affirmed the district court’s grant of summary judgment for the Town and the individual defendants.
- The court held that, given the perceived emergency health and safety risk posed by hazardous mold conditions, due process did not require a pre-deprivation hearing before the Town acted.
- The court held that the Town’s administrative appeal procedure provided adequate post-deprivation process to contest the condemnation.
- Because the Club abandoned the available administrative appeal, it could not show a completed procedural due process violation or resulting constitutional injury.

## Legal Principles

- Due process generally favors pre-deprivation notice and an opportunity to be heard, but immediate government action may be permitted when officials reasonably believe prompt action is needed to address serious health or safety risks.
- When pre-deprivation process is not required because of exigent circumstances, the constitutional question turns on whether there is a meaningful post-deprivation procedure to challenge the deprivation.
- A property owner who does not pursue an available, adequate post-deprivation remedy typically cannot maintain a § 1983 procedural due process claim based on the alleged lack of process.

## Conclusion

The Third Circuit held that the Town’s mold-based condemnation and evacuation without a prior hearing did not violate procedural due process because officials reasonably treated the situation as an emergency and the Town provided an adequate post-condemnation administrative appeal; the Club’s abandonment of that appeal defeated its § 1983 claim.


Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412 (2008)