2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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

 
Honorable Paul R. Michel, Chief Judge, United States *

Court of Appeals for the Federal Circuit, sitting by designation.

2

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
3

 

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
4

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
A public meeting was held on Saturday, October 5, at 1

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. 

 As noted below, it is not clear that the Town in fact

2

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

resumed. Blomquist, Belmont, Llewellyn and George Yocher, 1

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
powers.

6

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
7

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.
8

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
9

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

practicalsense, “[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
Thus, concluding that a predeprivation hearing was 3

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

provide a hearing. See Zinermon v. Burch, 494 U.S. 113, 132 3

(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
11

(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

g o o d f a ith , b ecom es a

constitutional violation, we

encourage delay and thereby

potentially increase the public’s
 Other courts have applied an even more deferential 4

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

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.” Id.; cf. Armendariz v. 4
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.

 Our analysis of whether the Town acted properly in 5

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

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

d is c r e tion.” W e conc lude that, under that 5
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
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

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
16

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
17

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
18

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
19

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
20

will be conducted. The procedures

shall not require compliance with

strict rules of evidence but shall

mandate 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
21

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
 The model version of § 121.2 provides that “[t]he board 6

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

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 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
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.

 Section 111.1 of the Property Maintenance Code refers 7

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

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
 Indeed, in 2003, the Town amended § 111 to change 8

“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

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
25

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
26

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,
27

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.