                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2008

Elsmere Park Club v. Elsmere
Precedential or Non-Precedential: Precedential

Docket No. 07-1821




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                                   PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


               No. 07-1821


      ELSMERE PARK CLUB, L.P.,
      a Delaware limited partnership,

                                Appellant

                     v.

TOWN OF ELSMERE, a Delaware municipal
  corporation; ELLIS J. BLOMQUIST;
  EUGENE BONEKER; JOHN GILES



Appeal from the United States District Court
        for the District of Delaware
   (D.C. Civil Action No. 04-cv-01321)
District Judge: Honorable Sue L. Robinson



          Argued: April 15, 2008
  Before: AMBRO, FISHER, and MICHEL,* Circuit Judges

               Opinion filed: September 9, 2008

Douglas F. Schleicher, Esquire
Klehr, Harrison, Harvey, Branzburg & Ellers, LLP
260 South Broad Street, Suite 400
Philadelphia, PA 19102

David S. Eagle, Esquire (Argued)
Klehr, Harrison, Harvey, Branzburg & Ellers, LLP
919 Market Street, Suite 1000
Wilmington, DE 19083

       Counsel for Appellant

Edward M. McNally, Esquire (Argued)
Liza H. Sherman, Esquire
Jason C. Jowers, Esquire
Morris James
500 Delaware Avenue, Suite 1500
P.O. Box 2306
Wilmington, DE 19899

              Counsel for Appellees




       *
       Honorable Paul R. Michel, Chief Judge, United States
Court of Appeals for the Federal Circuit, sitting by designation.

                               2
                 OPINION OF THE COURT


AMBRO, Circuit Judge

       We decide whether the Town of Elsmere, Delaware,
violated Elsmere Park Club’s procedural due process rights
under the Fourteenth Amendment to our Constitution when the
Town condemned the Club’s apartment complex without
offering a predeprivation hearing. We hold that the Town did
not run afoul of the Constitution because postdeprivation
process was all that was required given the circumstances of this
case. Because the Town provided adequate postdeprivation
process by way of an administrative appeal, and the Club failed
to avail itself of that process, we affirm the District Court’s
grant of summary judgment against the Club.

                            I. Facts

        The Club is the former owner of the Elsmere Park
Apartments (“Apartments”). The Apartments are a complex of
thirty-nine buildings, arranged in nine separate groups. They
contain a total of 156 garden-style apartments, including one
basement unit in each of the thirty-nine buildings. After severe
flooding from Hurricane Hugo in 1989, the Town prohibited the
Club from renting out its basement apartments, but allowed
continued use of the above-ground units. The Club then


                               3
boarded up the basement apartments with plywood. In 1996,
after increasing incidents of vandalism, the Town instructed the
Club to brick over the basement windows and seal the basement
apartments.

       All was relatively quiet between the Town and the Club
between 1996 and 2002. Then, on Tuesday, October 1, 2002,
while conducting a routine pre-rental inspection of the
Apartments, the Town’s Code Inspector, Ellis Blomquist,
detected a strong smell of mold. Blomquist returned to the
Apartments on Friday, October 4, with Kenneth Belmont, a
representative from the State of Delaware Department of Public
Health. They inspected two of the sealed basement units and
found mold, water leaks, and raw sewage, amounting to various
violations of the Elsmere Town Building Code. After observing
the mold, Blomquist and Belmont sought the advice of Gerald
Llewellyn, Chief Toxicologist for the State of Delaware.
Llewellyn concluded that the conditions in the basements posed
a serious health threat to the buildings’ residents due to what he
saw as the likelihood that mold spores were migrating up to the
occupied units through openings such as pipe chases and
ventilation ducts.        Together, Llewellyn and Belmont
recommended that the two buildings be condemned and vacated
immediately. Blomquist agreed, and, after informing the
Apartment’s on-site manager (Darlene Groki) of his decision,
proceeded to condemn the buildings and vacate the residents.

       On Monday, October 7, the inspections of the basements


                                4
resumed.1 Blomquist, Belmont, Llewellyn and George Yocher,
an environmental epidemiologist for the State of Delaware,
proceeded to go through the remaining basements, along with
several stairways and some unoccupied apartments, condemning
each building they inspected. By Thursday, October 10, 2002,
every building except the one housing the complex’s rental
management office had been condemned. It appears that no
time in the Town’s inspection did it examine any occupied
apartments, and the record does not note what category of mold
was present in the basements.

      As the condemnations were occurring, the Club filed a
motion for a temporary restraining order in the Delaware Court
of Chancery, asserting, inter alia, that the Town had effected an
unconstitutional taking by condemning the thirty-eight buildings
without compensating the Club. After a hearing, the Chancery
Court denied relief. In so holding, the Court found that the
Town had been justified in invoking its emergency powers to
condemn the property.2


       1
       A public meeting was held on Saturday, October 5, at
the Elsmere Town Hall to discuss the conditions at the
Apartments and the Town's actions. We have no record of what
occurred at that meeting.
       2
        As noted below, it is not clear that the Town in fact
invoked its emergency procedures. See infra Part III.A.
Nonetheless the Chancery Court hearing proceeded under the
assumption that the Town had been acting pursuant to those

                               5
         At the end of October 2002, the Club notified the Town
that it intended to appeal the condemnation of the Apartments.
It sent a letter to the Town asking for a hearing before the
“Board of Building Appeals,” which was listed in the Elsmere
Town Code as the appropriate body for hearing such appeals.
In correspondence with the Town Solicitor, the Club was told
that the Town actually referred to its appellate body as the Board
of Adjustment. The Town Solicitor explained that the “Board
of Building Appeals” reference came from a code section that
had been borrowed from the National Building Code and
incorporated into the Town’s Code without being adjusted to
reflect the Town’s particular usage. In January 2003, the Club
and the Town Solicitor executed an agreement to stay the Club’s
administrative appeal, and the Club, by its own admission,
“abandoned its administrative appeal.” Club’s Br. 13. In April
2003, the Club sold the Apartments at a fire-sale price.

        A year and a half later, the Club brought an action under
42 U.S.C. § 1983 in the United States District Court for the
District of Delaware against the Town and several of its agents.
In its complaint, the Club alleged that the Town deprived it of
due process when the Town condemned and evacuated the
Apartments without first affording the Club the opportunity for
a hearing or the chance to cure the alleged code violations. The
Town later filed a motion for summary judgment, asserting that
exigent circumstances justified its failure to give the Club a



powers.

                                6
predeprivation hearing and that the Club had failed to avail itself
of the Town’s postdeprivation procedure.

        The District Court concluded that the Town “failed to
present sufficient evidence of exigent circumstances to justify
the absence of any pre-deprivation due process [rights].”
Elsmere Park Club, L.P. v. Town of Elsmere, 474 F. Supp. 2d
638, 647 (D. Del. 2007). The Court found it significant that
Blomquist and other Town representatives made the decision to
condemn the apartments without first inspecting any of the
occupied units or taking air samples. Id. Moreover, it noted that
“the record contains no evidence that any residents actually
complained of, or suffered from, mold-related ailments or
conditions in their units.” Id. As such, the Court concluded that
Town had violated the Club’s due process rights in not offering
a predeprivation opportunity to oppose the condemnation. Id.
at 649.

        Despite having found a procedural due process violation,
the Court went on to conclude that the Club was ineligible for
relief because it had failed to avail itself of the Town’s
postdeprivation hearing procedure. Id. at 649–650 (citing Alvin
v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000), for the proposition
that a plaintiff alleging a procedural due process violation must
have taken advantage of all available local process in order to
claim a constitutional injury). It therefore entered summary
judgment in favor of the Town. Elsmere, 474 F. Supp. 2d at
650. The Club appeals.


                                7
          II. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
exercise plenary review over the District Court’s grant of
summary judgment. Atkinson v. LaFayette Coll., 460 F.3d 447,
451 (3d Cir. 2006). Summary judgment is appropriate if there
is “no genuine issue as to any material fact” and the party
making the motion “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). “In determining whether a genuine issue
of fact exists, we resolve all factual doubts and draw all
reasonable inferences in favor of the nonmoving party.”
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140
(3d Cir. 2004). We may affirm the District Court’s judgment on
any grounds supported by the record. In re Teleglobe
Communications Corp., 493 F.3d 345, 385 (3d Cir. 2007).

                         III. Analysis

       The Club contends that the Town violated its rights to
procedural due process in two ways: first, in failing to provide
a hearing before condemning the Apartments, and, second, in
offering what the Club argues were inadequate means for
challenging the condemnations after they occurred.

       The Fourteenth Amendment prohibits a state from
“depriv[ing] any person of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. XIV, § 1. “A

                                8
fundamental requirement of due process is the opportunity to be
heard.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (internal
quotation marks omitted). That opportunity “must be granted at
a meaningful time and in a meaningful manner.” Id. In the
typical situation, the hearing should come before the
Government deprives a person of his property. This makes
practical sense, “[f]or when a person has an opportunity to speak
up in his own defense, and when the State must listen to what he
has to say, substantively unfair and simply mistaken
deprivations of property interests can be prevented.” Fuentes v.
Shevin, 407 U.S. 67, 81 (1972).

        Nonetheless, the Supreme Court has held that, in special
circumstances, a state may satisfy the requirements of
procedural due process merely by making available “some
meaningful means by which to assess the propriety of the State’s
action at some time after the initial taking.” Parratt v. Taylor,
451 U.S. 527, 539 (1981). Where there is “the necessity of
quick action by the State,” or where “providing any meaningful
predeprivation process” would be impractical, the Government
is relieved of the usual obligation to provide a predeprivation
hearing. Id.

      Our first task, then, is to determine whether the Town
was faced with circumstances in which it was required to
provide a predeprivation hearing. If so, then no amount of
postdeprivation process could cure the Town’s initial failure to




                               9
provide a hearing.3 See Zinermon v. Burch, 494 U.S. 113, 132
(1990) (“In situations where the State feasibly can provide a
predeprivation hearing before taking property, it generally must
do so regardless of the adequacy of a postdeprivation tort
remedy to compensate for the taking.”); Alvin v. Suzuki, 227
F.3d 107, 120 (3d Cir. 2000) (“[I]f the Constitution requires
pre-termination procedures, the most thorough and fair
post-termination hearing cannot undo the failure to provide such
procedures.”). If, on the other hand, the Town was faced with
such exceptional circumstances that no predeprivation hearing
was required, then the question becomes whether it made
adequate postdeprivation procedures available to the Club.
Parratt, 451 U.S. at 539.

       A.     Was a Predeprivation Hearing Required?

      It is beyond question “that summary administrative action
may be justified in emergency situations.” Hodel v. Va. Surface
Mining & Recl. Ass’n, 452 U.S. 264, 300 (1981); see also
Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir. 1998) (“No
one can seriously doubt that emergency conditions may exist


       3
           Thus, concluding that a predeprivation hearing was
required made summary judgment in favor of the Town not
available when that judgment was based on the Club’s failure to
avail itself of postdeprivation remedies. We nevertheless affirm
the grant of summary judgment because, as explained below, we
conclude that no predeprivation hearing was required given the
exigencies then existing.

                              10
(e.g., a severe fire hazard) that would warrant a peremptory
shutdown of a residential building.”). The Club, however, is not
disputing that, where there is a threat to public health or safety
requiring prompt action, the Government may act quickly to
eliminate that threat. Rather, the Club argues that the mold
situation did not amount to an emergency, and that, regardless,
the Town did not conduct a thorough enough investigation at the
time to justify its belief that emergency action was warranted.

       To assess this argument, we ask what sort of scrutiny we
should apply to an official decision that emergency action is
required. Other courts of appeals have held that such decisions
must be analyzed very deferentially. See Catanzaro v. Weiden,
188 F.3d 56, 62–63 (2d Cir. 1999); Herwins, 163 F.3d at 19;
Harris v. City of Akron, 20 F.3d 1396, 1404 (6th Cir. 1994).
This makes basic sense. As the Court of Appeals for the Second
Circuit has explained:

              The law should not discourage
              officials from taking prompt action
              to insure the public safety. By
              subjecting a decision to invoke an
              emergency procedure to an
              exacting hindsight analysis, where
              every mistake, even if made in
              good faith, becomes a
              constitu tional violation, w e
              encourage delay and thereby
              potentially increase the public’s

                               11
               exposure to dangerous conditions.
               This quandary is exactly what these
               emergency procedures are designed
               to prevent, and is the primary
               reason they are constitutionally
               acceptable.

Catanzaro, 188 F.3d at 63.

        Yet, it is important to avoid the opposite trap. That is, we
cannot apply so much deference as to allow “the government
[to] avoid affording due process to citizens by arbitrarily
invoking emergency procedures.” Id. Accordingly, we adopt
the test laid out by our colleagues in the Second Circuit: “where
there is competent evidence allowing the official to reasonably
believe that an emergency does in fact exist . . . [,] the
discretionary invocation of an emergency procedure results in a
constitutional violation only where such invocation is arbitrary
or amounts to an abuse of discretion.” 4 Id.; cf. Armendariz v.


       4
          Other courts have applied an even more deferential
standard, holding that, where government officials act pursuant
to a valid “emergency” statute, the decision to bypass a hearing
cannot be challenged. See Herwins, 163 F.3d at 19 (“Where an
official errs in declaring an emergency, the only feasible
procedure is a post-deprivation remedy.”); Harris, 20 F.3d at
1404 (holding that, where an official charged with discretion to
invoke emergency procedures perceives an emergency, it is
“impracticable to wait for a predeprivation process to run its

                                12
Penman, 31 F.3d 860, 866 (9th Cir. 1994) (“[T]he rationale for
permitting government officials to act summarily in emergency
situations does not apply where the officials know no emergency
exists, or where they act with reckless disregard of the actual
circumstances.”), vacated in part on other grounds, 75 F.3d
1311 (9th Cir. 1996) (en banc).

      Thus, in analyzing the Town’s decision to condemn
summarily the apartments, we look to whether there was
“competent evidence” supporting the reasonable belief that the
mold situation presented an “emergency,” and to whether the
Town’s actions were otherwise “arbitrary” or an “abuse of
discretion.”5       W e conclude that, under that


course”). We believe that this degree of deference is both
unnecessary and inconsistent with the Supreme Court’s
suggestion that “if a pattern of abuse and arbitrary action were
discernable from review of an agency’s administration of a
summary procedure,” the use of that procedure might be
unconstitutional. Hodel, 452 U.S. at 302 n.46.
       5
         Our analysis of whether the Town acted properly in
invoking summary procedures is complicated because the record
does not make clear which procedures the Town invoked. On
the one hand, the briefs submitted by the parties make reference
to § 109 of the Elsmere Property Maintenance Code, which
specifically addresses “Emergency Measures.” See, e.g., Club’s
Br. 26 (“In the underlying action, the Town relied on the
‘Emergency Measures’ section of the Town’s Property
Maintenance Code.”); Town’s Br. 50–51 (citing § 109.6). On

                              13
the other hand, the condemnation notices that the Town issued
in connection with its actions referred to § 108 of the Elsmere
Property Maintenance Code, which governs non-emergency
condemnations, and the Town twice cited that provision in its
brief. Town’s Br. 46, 47.
        We do not believe that our analysis is affected either way.
Section 109 empowers a “code official,” upon a perception of an
“actual or potential danger to the building occupants,” to
condemn a building immediately. BOCA Nat'l Bldg. Code as
adopted by the Town of Elsmere §§ 109.1, 109.6 (emphasis
omitted). Section 108 permits a “code official” to “condemn”
a property upon a finding that it is “unfit for human occupancy.”
§§ 108.1.3, 108.3. The main difference between the two
sections seems to be that § 109 allows the city to make
“emergency repairs” to the property, § 109.2, and to recover
costs from the property owner, § 109.5, while § 108 requires the
Town to provide the owner with postdeprivation notice
explaining the reasons why the property was condemned and
what repairs must be made before the building can be
reoccupied, see § 108.3 (requiring notice in accordance with
§ 107.2); § 107.2 (instructing that notice include both a
“statement of reasons” and a “correction order”).
        That difference has no bearing on our analysis. Both
§ 109 and § 108 provide authority for the Town to do what it did
in this case—make an on-the-spot determination that a property
is unsafe and order it vacated without any predeprivation notice.
What triggers the kind of deference we apply here is not the
invocation of procedures labeled “emergency.” Rather, it is the
exercise of statutorily based discretion to act unburdened by the
requirement to provide a predeprivation hearing where it is

                                14
standard, the Town’s failure to provide a predeprivation hearing
did not amount to a constitutional violation.

        It is useful to compare the facts here with those presented
in Catanzaro. There, the City of Middletown, New York, used
emergency procedures to demolish two privately owned
buildings whose shared foundation had been damaged by a car
accident. Catanzaro, 188 F.3d at 58-59. The buildings’ owners
argued, as the Club does here, that the City had acted rashly,
failing both to determine fully whether the crash had affected
the buildings’ structural integrity and to explore less drastic
measures of addressing the problem. Id. at 59. The Catanzaro
Court nonetheless concluded that, even were the buildings
structurally sound, “no reasonable trier of fact could find that
[the City] acted arbitrarily[,] or otherwise abused [its] discretion,
in deciding to invoke the emergency procedure.” Id. at 63. That
is because “[t]he undisputed evidence of the damage to the
buildings provides ample support for a conclusion that [the City]
had a reasonable belief that the public was in immediate
danger.” Id.

      We believe a similar conclusion is warranted here. It is
undisputed that the sealed-off basement apartments were


judged that the situation demands urgent action. See Mackey v.
Montrym, 443 U.S. 1, 17 (1979) (“We have traditionally
accorded the states great leeway in adopting summary
procedures to protect public health and safety.”). Thus, whether
the Town acted under § 108 or § 109, our analysis is the same.

                                 15
overrun with mold. It is also undisputed that Blomquist
consulted several state experts who told him that the mold
potentially posed a substantial and immediate threat to the health
and welfare of the Apartments’ residents. Given that, we cannot
say that the Town acted unreasonably in summarily condemning
the Apartments. It is true that the investigation of the mold
situation was far from perfect. We are particularly troubled, as
was the District Court, by the failure to inspect any of the
occupied units to determine whether toxic mold was in fact
spreading up from the basements. Nonetheless, we are reluctant
to second guess the decision to act on an urgent basis. Where
government officials are faced with a situation in which a failure
to act quickly could have serious health consequences,
perfection or near perfection is not the standard. Given the mold
problem in the sealed basement apartments, and the Town’s
reliance on the advice of experts, the Town’s actions cannot be
characterized as arbitrary or an abuse of its discretion. We
therefore hold that due process did not require a predeprivation
hearing before the Town condemned the Apartments.

B.     Was an Adequate Postdeprivation Remedy Provided?

       Having concluded that a predeprivation hearing was not
required, we must nevertheless determine whether the
postdeprivation remedy the Town offered was adequate. Even
where exigent circumstances exist, it is still necessary to make
available “some meaningful means by which to assess the
propriety of the State’s action at some time after the initial
taking” in order to “satisfy the requirements of procedural due

                               16
process.”      Parratt, 451 U.S. at 539.        If an adequate
postdeprivation remedy existed, and the Club failed to avail
itself of it, then we must affirm the District Court’s grant of
summary judgment. Cf. Alvin, 227 F.3d at 116 (“In order to
state a claim for failure to provide due process, a plaintiff must
have taken advantage of the processes that are available to him
or her, unless those processes are unavailable or patently
inadequate.”).

       The Club concedes that the regulation under which the
Apartments were condemned did provide for a postdeprivation
appeals process. It further concedes that it did not appeal the
condemnation decision. Club’s Br. 13. However, it argues that
it was not required to avail itself of the appeals process because
that process was inadequate. More specifically, the Club
contends that the body to which appeals were required to be
taken—the Board of Building Appeals—did not exist. The
Town responds that it did have a board—the Board of
Adjustment—capable of adjudicating the appeal, and,
accordingly, the Club should have pursued its appeal with the
Board before bringing a due process claim in federal court.

       1.     Understanding the Relevant Code Provisions

       To understand what type of postdeprivation relief was
available to the Club, we must look to the Elsmere Town Code
and its legislative history. In lieu of writing its own building
codes, the Town adopted, with slight modifications, various
model codes published by the Association of Building Officials

                               17
and Code Administrators (known as BOCA codes). Relevant
for our purposes is what the Town did in adopting significant
provisions of the 1996 BOCA National Building Code and the
1996 BOCA National Property Maintenance Code. The latter
provided the regulations under which the Apartments were
condemned. Section 111 of that Code specifies the means of
appeal:

             PM-111.1 Application for appeal:
             Any person affected by a decision
             of the code official or a notice or
             order issued under this code shall
             have the right to appeal to the board
             of appeals, provided that a written
             application for appeal is filed
             within 20 days after the day the
             decision, notice or order was
             served. An application for appeal
             shall be based on a claim that the
             true intent of this code or the rules
             legally adopted thereunder have
             been incorrectly interpreted, the
             provisions of this code do not fully
             apply, or the requirements of this
             code are adequately satisfied by
             other means.

             PM-111.2 Membership of the
             board: The board of appeals shall

                              18
consist of five members appointed
by the chief appointing authority as
follows: one for five years, one for
four years, one for three years, one
for two years, and one for one year.
Thereafter, each new member shall
serve for five years or until a
successor has been appointed.

....

PM-111.3 Notice of meeting: The
board shall meet upon notice from
the chairman, within ten days of the
filing of an appeal, or at stated
periodic meetings.

PM 111.4 Open hearing: All
hearings before the board shall be
open to the public. The appellant,
the appellant’s representative, the
code official, and any person
whose interests are affected shall be
given an opportunity to be heard.

PM-111.4.1 Procedure: The board
shall adopt[,] and make available to
the public through the secretary,
procedures under which a hearing

                 19
will be conducted. The procedures
shall not require compliance with
strict rules of evidence but shall
m andate that only relevant
information be received.

....

PM-111.6 Board decision: The
board shall modify or reverse the
decision of the code official by a
concurring vote of three members.

PM-111.6.1 Resolution: The
decision of the board shall be by
resolution. Certified copies shall
be furnished to the appellant and to
the code official.

PM-111.6.2 Administration: The
code official shall take immediate
action in accordance with the
decision of the board.

PM-111.7 Court review: Any
person, whether or not a previous
party of the appeal, shall have the
right to apply to the appropriate
court for a writ of certiorari to

                20
              correct errors of law. Application
              for review shall be made in the
              manner and time required by law
              following the filing of the decision
              in the office of the chief
              administrative officer.

BOCA Nat’l Prop. Maint. Code §§ 111.1, 111.2, 111.3, 111.4,
111.4.1, 111.6, 111.6.1, 111.6.2, 111.7 (emphasis in original).

       The Town, however, chose not to adopt verbatim § 111.1
through § 111.3 of the National Property Maintenance Code.
Instead, in its ordinance adopting the Property Maintenance
Code, the Town changed § 111.1 to read: “Any person affected
by any notice which has been issued pursuant to this Ordinance
may appeal the decision of the Code Official to the Board of
Building Appeals, pursuant to § 121.0 of the BOCA National
Building Code in effect, as amended,” and deleted §§ 111.2 and
111.3. Elsmere, Del., Ordinance § 330. All other subsections
of § 111 governing the appeals process remained in effect.

      Section 121.1 of the BOCA National Building Code
provides:

              121.1 Application for appeal: Any
              person shall have the right to
              appeal a decision of the code
              official to the board of appeals. An
              application for appeal shall be

                              21
              based on a claim that the true intent
              of this code or the rules legally
              adopted thereunder have been
              in c o rre c tly i n te rp re te d , th e
              provisions of this code do not fully
              apply, or an equivalent form of
              construction is to be used.

Section 121.2 of the BOCA National Building Code, as
amended by the Town, see Elsmere, Del. Ordinance § 329,
provides:

              121.2 Membership of board: The
              board of appeals shall consist of
              five members appointed by the
              Mayor as follows: One for three
              years, two for two years, and two
              for one year. Thereafter, each new
              member shall serve for three years
              or until his successor has been
              appointed. No member of the
              board shall be in the employ of the
              Town of Elsmere or an elected
              official of the Town of Elsmere.6


       6
        The model version of § 121.2 provides that “[t]he board
of appeals shall consist of five members appointed by the chief
appointing authority as follows: one for five years, one for four
years, one for three years, one for two years, and one for one

                                 22
Thus, the Town Code, even as amended, referred parties to the
“board of appeals,” not the Board of Adjustment, which is the
administrative body the Town claims it made available to the
Club.7

       2.     Board of Appeals vs. Board of Adjustment

        With this background in mind, we turn to the parties’
contentions. There is no dispute that when the Club filed its
appeal no entity called the “Board of Building Appeals” existed
in the Town. Nonetheless, after receiving the Club’s appeal, the
Town informed it that “while the BOCA National Building
Code refers to the Board of Building Appeals, the Town of
Elsmere refers to its appellate body as the Board of
Adjustment.” The Club contends that the Board of Adjustment
did not have the authority to sit as the Board of Building
Appeals for the condemnation action, and that therefore the
Town failed to provide adequate means for it to challenge the



year.” BOCA Nat’l Bldg. Code § 121.2. Thus, the effect of the
amendment was to alter the way in which membership terms on
the board were staggered.
       7
         Section 111.1 of the Property Maintenance Code refers
to this body as the “Board of Building Appeals,” as did the
Town and the Club in their correspondence. However, § 121
refers to the “board of appeals.” We assume that these terms
both refer to the same, nonexistent, body, and, accordingly, use
them interchangeably.

                              23
condemnations, despite directing it to the Board of Adjustment
for its appeal.

         It appears, however, that the Board of Adjustment would
have been able to hear the Club’s appeal. The Board of
Adjustment is established as part of the Town’s Zoning Code.
See Elsmere, Del., Code § 225.40 (providing for the authority of
the Board). But the membership requirements for the Board of
Adjustment are identical to the membership requirements of the
Board of Building Appeals as outlined in the amended Code:
both boards have five members, appointed by the Mayor in a
staggered fashion, with members ultimately each serving
three-year terms.       See id. (explaining the membership
requirements of the Board of Adjustment); BOCA Nat'l Bldg.
Code § 121.2 (explaining the membership requirements of the
board of appeals). This appears to have been intentional. That
is, it appears that, when the Town amended the composition of
the appeals board under both the BOCA National Property
Maintenance Code and the BOCA National Building Code, it
did so specifically in order that the Board of Adjustment could
also act as the Board of Building Appeals. See Town's Br. 53 &
n.24. It merely failed to change the name of the body referenced
in the Code accordingly.8


       8
        Indeed, in 2003, the Town amended § 111 to change
“board of appeals” to “Board of Adjustment of the Town of
Elsmere” to make clear that the latter body is empowered to hear
appeals of condemnation decisions. See Elsmere, Del.,
Ordinance 420 § 171-6(e).

                              24
        This allows us to understand how the Town structured its
administrative appeals system. One board would carry out the
appellate function under each of the three codes: the Property
Maintenance Code, the Building Code and the Zoning Code.
See Elsmere, Del., Code § 225.40(1)(a) (giving the Board of
Adjustment the authority “[t]o hear and decide appeals where it
is alleged there is an error in any order, requirement decision or
determination made by an administrative official in the
enforcement of appropriate laws and codes of the State of
Delaware”). When acting as the appellate board under the
Property Maintenance Code, the Board would carry out the
appellate procedures outlined in § 111.0 of that Code (as
amended). When acting as the appellate board under the
Building Code, the Board would carry out the appellate
procedures outlined in § 121.0 of that Code (as amended).
Finally, when acting as the appellate board under the Zoning
Code, it would carry out the appellate procedures outlined in
Chapter 225.40 of that Code.

        Thus, there was an administrative body empowered to
hear the Club’s appeal (the Board of Adjustment) and
procedures (those outlined in § 111) specifically designed to
address appeals of condemnation decisions. To be sure, the
Town Code did initially point the Club to a body, the Board of
Building Appeals, that did not exist. But the Town then took
appropriate steps to direct the Club to the correct body, and, in
fact, it was with the Board of Adjustment that the Club
negotiated a stay of its appeal in exchange for a waiver of the
Town’s right under its Code to issue a final decision on the

                               25
matter. We therefore conclude that the Town did provide the
Club with adequate means of appealing the condemnations.

       3. Elsmere Park Club’s Failure to Avail Itself of an
       Adequate Postdeprivation Remedy

         There was an adequate postdeprivation remedy in this
case—that of administrative appeal—and the Club concedes that
it failed to take such an appeal. Club’s Br. 13. We have held
that “[i]n order to state a claim for failure to provide due
process, a plaintiff must have taken advantage of the processes
that are available to him or her, unless those processes are
unavailable or patently inadequate.” Alvin, 227 F.3d at 116.
Thus, the Club’s failure to take advantage of that process means
that it cannot claim a constitutional injury.

       This requirement that a plaintiff avail itself of the
processes available differs from the administrative exhaustion
requirements that appear in other civil rights contexts. See id.
Administrative exhaustion is not generally required in § 1983
suits. See McGreevy v. Stroup, 413 F.3d 359, 369 (3d Cir.
2005). However, as we explained in Alvin, “exhaustion . . . is
analytically distinct from the requirement that the harm alleged
has occurred. . . . [A] procedural due process violation cannot
have occurred when the governmental actor provides apparently
adequate procedural remedies and the plaintiff has not availed
himself of those remedies.” Alvin, 227 F.3d at 116. Thus, it is
not that the Club lost its claim because it failed to litigate it fully
through local procedures before seeking federal relief. Rather,

                                  26
because the constitutional injury alleged is the Town’s failure to
provide adequate procedures to the Club, no such injury could
have occurred where the Club has failed to take advantage of the
procedures actually offered, at least not absent a showing that
the process offered was “patently inadequate.” Id.

       Here, there is nothing in the record to suggest that the
appeals process was inadequate, at least not once the confusion
regarding to which administrative body the Club was supposed
to appeal was resolved. Indeed, § 111 describes an appeals
process in which the Board holds a prompt and open hearing,
announces its resolution, and then provides for further appeal to
the Mayor. The Club could have availed itself of this facially
adequate postdeprivation process, presenting arguments about
whether the condemnations were justified in light of the
circumstances. But it did not. Instead, it abandoned its appeal
and filed suit in the District Court. Having failed to take
advantage of the available process, the Club has not
demonstrated a violation of the Due Process Clause of the
Fourteenth Amendment and thus cannot maintain a successful
§ 1983 action in federal court.

                        *   *   *    *   *

     For these reasons, we affirm the District Court’s grant of
summary judgment.




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