Petition for Writ of Certiorari — Lewis v. BOCA Appeals Board of Clarksburg

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Supreme Court, U.S.

FILE D

97.23'7 JUNI9 (997,

OFFICK OF THE CLERK

No.

In the

Supreme Court of the United States

October Term, 1996

Ellis R. Lewis, Petitioner,

The BOCA Appeals Board of the City of Clarksburg; and the City

of Clarksburg, Respondents.

and

Ellis R. Lewis, Plaintiff Below, Petitioner,

John L. DePolo, individually and as agent for the City of Clarks-

burg; P. Douglas Gray, individually and as Chairman of the City of

Clarksburg Code Enforcement Appeals Board; and the City of

Clarksburg, Defendants Below, Respondents.

On Petition for a Writ of Certiorari to the

Circuit Court of Harrison County Division 2

PETITION FOR A WRIT OF CERTIORARI

Ellis R. Lewis, Pro Se

P.O. Box 2403

Riverside, Ca. 92516

(909)685-6675

QUESTIONS PRESENTED

1. Whether after condemning an apartment building under a

flood plain ordinance, denying a permit to repair, and de-

nying compensation for loss of all economic uses of the

land, a city may use its police power to: (1) order the

building demolished at the owner's expense, when no

emergency is alleged, (2) issue a criminal charge for failure

to maintain the building, (3) seek fines and incarceration if

the owner is unable to demolish the building, and (4) seek

a prospective judgment for the cost of demolition, without

violating the owner's Fifth and Fourteenth Amendment

rights?

_ Whether Fifth Amendment guarantees of due process are

violated when a state circuit court judge grants summary

judgment, without a motion by one of the parties, without

notice, without discovery, and without the right to present

evidence, when complex claims of inverse condemnation,

trespass and contract violations have been alleged?

PARTIES

The parties to the underlying proceeding for which re-

view is sought are:

Petitioner/Plaintiff below:

Ellis R. Lewis

Respondent/Defendants below:

The BOCA Appeais Board of the City of Clarksburg

The City of Clarksburg

Defendants below:

John L. DePolo, individually and as agent for the City

of Clarksburg

P. Douglas Gray, individually and as Chairman of the

City of Clarksburg Code Enforcement Appeals Board

TABLE OF CONTENTS

Page

Questions Presented.............................. i

a ye coos hase kb ueeca cece T

i, vy a kaa ccevcseecs l

sy oo ko cova tesa vdewsaeecen l

Constitutional and Statutory Provisions................ 2

Statement of the Case............................. 3

Purchase of the property ..................... 3

Initial observation of storm drainage problems. .... . 4

Condemnation notice citing the Flood

eee 6

Demolition Order without option to

repair and threats of fines and incarceration... . 7

BOCA Board ruling...................... ee

First appeal of BOCA Board's ruling to the

Circuit Court andremand................... 8

Second appeal to Circuit Court, and

Complaint for Declaratory Judgment......... 9

Lewis brings suit for breach of contract,

trespass, inverse condemnation, etc........... 9

Pretrial briefs and rulings in Division 1.......... 10

TABLE OF CONTENTS - Continued

Motions to dismiss and denial of

discovery in Division2.................... 10

Summary judgment absent motion, notice,

discovery and opportunity to respond......... 11

Appeal to Supreme Court of Appeals for

We WS to ee ee a roses. 12

Postscript: demolition and new evidence......... 13

Reasons for Granting Certioran.................... 13

1. The decision below conflicts with decisions of

this Court and other courts finding inverse con-

demnation liability because of flood plain ordi-

WI 0 a-e Gea ek ea eres ohne aa 14

Application of the flood plain ordinance...... 14

No trespass without compensation........... 15

Impact on economic use, investment backed

expectations and right torepair......... 15

Original title granted use .................. 16

Abuse of the police power................. 17

. The decision granting prospective injunctive re-

lief conflicts with this Court's decisions that

authorize such punitive destruction only in cases

of emergency or imminent danger ........... 17

3. The manner in which the Circuit Court of Harn-

son County acted denied Lewis his right to due

I GI os ia cha hte dee be as 19

Notice announced by judge on day of ruling... . !9

Discovery denied................... 20

No opportunity to present evidence..... 21

rE 5 eee 21

CE oes sea oy ee ee eee 23

Appendix App. Page #

I. Opinions, Orders, Findings of Fact and l

II.

Conclusions of Law of Circuit Court of

Harrison County Division 2

1. Stay of Judgment Order, Entered Septem- |

ber 18, 1995

2. Judgment Order, Entered August 3, 1995 3

3. Findings of Fact and Conclusions of Law, 5

Entered Nunc Pro Tunc the August 3,

1995, September 18, 1995

4. Protective Order, Entered June 8, 1995 12

5. Order, Entered May 17, 1995 14

Opinions, Orders, Findings of Fact and 17

Conclusions of Law Entered by Other

Courts and Administrative Agences

6. West Virginia Supreme Court of Appeals 17

Rejection of Leave to File Petition for Sec-

ond Petition for Appeal, Entered May 1,

1997

7. West Virginia Supreme Court of Appeals 18

Order Petition Refused, February 20, 1997

8. West Virginia Supreme Court of Appeals 20

Order to Supplement the Record, May 30,

1996

11.

12.

13.

14.

15.

Harrison County Circuit Court Order Pro-

spective on Declaratory and Injunctive

Relief, Entered July 21, 1994

. Harrison County Circuit Court, Findings

of Fact and Conclusions of Law, Entered

July 21, 1994

Harrison County Circuit Court Order Re-

garding City's Right to Demolish Building

and Institute Criminal Proceedings, En-

tered June 12, 1992

Decision of the BOCA Appeals Board of

the City of Clarksburg, November 6,

199]

Harrison County Circuit Court, Remand

Order, Entered June 11, 1991

Demolition Order, August 9, 1990

Condemnation Notice, May 23, 1986

III. Constitutional Provisions

16.

U.S. Constitutional Amendments, Article

V, Article VI, Article XIV

IV. Statutes, Ordinances and Regulations

17.

18.

West Virginia Code, Rules of Civil Pro-

cedure, Rule 56. Summary Judgment,

Rule 57. Declaratory Judgments

West Virginia Code, Chapter 29A, State

Administrative Procedures Act

. West Virginia Constitution, Article 3, §

10, Article 3, § 17

20.

oi.

Vii

Clarksburg Ordinances, Article 1725

Building Inspector, Article 1747 Flood

Control

Clarksburg Maintenance Code Appeals

Board Bylaws

. Place in the Suit or Briefs Where Consti-

tutional Issues are Raised

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

Petition for Appeal, October 25, 1995

"BOCA" BRIEF, October 6, 1994

Plaintiff's Amended Complaint, July 7,

1994

Plaintiff's Response to Defendants’ Brief

in Support of Motion to Dismiss, Decem-

ber 22, 1993

Petitioner's Response to Preemptive In-

demnication Brief, November 5, 1993

Statement of Issues, October 26, 1992

Counterclaim and Complaint for Declara-

tory Judgment, September 29, 1992

Amended Petition for Appeal June 24,

1992

Memorandum in Support of Petitioner's

Motion to Set Aside BOCA Appeals

Board Order, October 22, 1990

Petition to Modify and/or Withdraw

BOCA Citation 272 - 300 Monticello

Avenue, August 24, 1990

Vill

VI. Other Material

32. Transcript of Day of Summary Judgment

33. Notice to Redeem Delinquent Real Estate,

November 9, 1994

34. Denial of Request to Repair, May 20,

1986

35. Memo on Storm Sewer Improvements,

June 23, 1981

36. Structural Soundness, August 15, 1980

37. Compliance with Flood Plain Ordinance,

August 13, 1980

38. Right of Way Agreement, December 16,

1958

TABLE OF AUTHORITIES

ases

Agins v. City of Tiburon, 477 U.S. 255 (1980)... ..

Albert v. Mountain Home, (Idaho) 337 P2d 377... .

Anderson v. Liberty Lobby, 477 U.S. 242........

Application of Suffern, 12 App Div 2d 769, 209

taeda Fe ei ga ncaa ce ee as

Aurora v. Meyer, 38 Ill 2d 131, 230 NE2d 200....

Brooks v. Hussman Corp., 878 F. 2d 115 (3d Cir.

NS erate ene Se eIN Ny es aa re ee A

Childs v. Anderson, 344 Mich 90, 73 NW2d 280...

Colgan v. Fisher Scientific Co., 935 F 2d 1407, (3d

ee eth ed |

Cool Fuel, Inc. v. Connett (9th Cir, 1982) 685 F2d

ey patey Bia ho nat ane ea te, Ge at

Costello, Porter, Hill, Heisterkam & Bushnell v.

Providers Fidelity Life Ins. Co., 958 F 2d 836

og eos areca ea ok wa 4

DiMartini v. Ferrin (9th Cir. 1989) 889 F2d 922...

Dooley v. Town Planning and Zoning Commission

(Conn. 1964), 197 A2d770................

First English Evangelical Luthern Church of Glen-

dale v. Los Angeles County,482 U.S. 304 (1987)

FMC Corp. v. WV Human Rights Comm'n 403

oe er a ore

Goldblatt v. Town of Hempstead, 369 U.S. 590 at

Gn ea letu a feniy cae cued es eho

Hadacheck v. Sebastian (1915), 239 U.S. 394.....

20, 20n,

22n

18n, 20n

19n, 21n

2In

14n

10, 14

Hairston V. Danville & Western Ry.Co., 208 U.S.

URE AES Rc ine Gat ern one arora eee

Horton v. Gulledge, 277 N.C. 353, 177 S.E. 2d 885

Inman v New Hartford, (1986, 4th Dept) 116 App

Div 2d 998, 498 NYS2d618 ...............

Jarvis v. Baltimore, 248 Md 528, 237 A2d 446...

Loretto v. Teleprompter Manhattan CATV

Corp AOS UB. SEP CIFESD . wc 5 wis eee eee

Lucas v. South Carolina Coastal Council, 505 US,

120 L Ed 2nd 798, 112 S Cr 2886 (1992) ......

Management Investors v. United Mine Workers of

America, C.A. 6th, 1979 610 F2d 384......

Maritrend, Inc. v. Galveston Wharves, D.C. Tex.

Se Ee I cc cn Kauss an

Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 473 US. 374 (1906)... . . .. 0.2...

McClung v. Marion County, 360 S.E.2d 221 (W.

ort eo pre

Miller v. Schoene (1928) 276 U.S. 272 ..........

Newton v. Highland Park, (Tex Civ App) 282 SW2d

WR sc ntuwne ee eeeund weaGha Rue Ros ees

Ne ra tren a eee rae a

Penn Central Transportation Co. v. New York City,

oS rer rere

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

SER | Sere rere eee a ee eee

Portsmouth Square v. Shareholders Protective

Comm. (9th Cir. 1985) 770 F2d 866, 869......

Poughkeepsie v Clifford, (1986, 2d Dept) 120 App

oe we lg OG ee

Scott v. Courtesy Inns, Inc. C.a. 5th 1973, 472 F 2d

| rere en re i ee eee

15n

16n

16, 16n,

20n

2In

19n

18n

16n

13n

15,17

21n

16n

20n

eam DRE

eS a a

Sempier v. Johnson & Higgins, 45 F 3d 724 (3d 22n

OE eer ere Sere Tr rr ore

State Ex Rel State Line Sparkler v. Teach, 418 S.E. 18n

Poe A ee errr

U.S. v. J.B. Williams Co., C.A. 2d, 1974, 498 F.2d 21n

cae aK eRe eeu e tee kan eee akan

White v. Texas Am. Bank/Galleria, N.A. 958 F. 2d 20n

I SE hv oo aack'km boo oo ao

Yee v. City of Sausalito, 141 Cal. App.3d 917, 190 15, 15n

eres

Constitutional Provisions, Rules and Statutes

Clarksburg Flood Plain Ordinance 1747.......... 2, 3,6

Clarksburg Ordinance 1725................... 2, 7, 18n

Federal Rules of Civil Procedure, Rule 57........ 19

United States Constitution, Amendment 5......... 1, 2, 10,

12n, 15n,

17, 19,

United States Constitution, Amendment 6......... 2, 19, 22

United States Constitution, Amendment 14........ 2, 10,

12n, 15n,

West Virginia Adminstrative Procedures Act (Code 2, 12

TIGRE © Reel kere ne ene oka

West Virginia Code 8-16-12.................. 18n

West Virginia Rules of Civil Procedure, Rule 56... 2,9, 18

West Virginia Rules of Civil Procedure, Rule 57. . . 2, t9

xii

Miscellaneous

Ann R. Barker, "Inverse Condemnation and the New

Takings Statute," April 17, 1996, Local Govern-

ment Seminar, Austin, Texas.

"Locklin v. City of Lafayette: Storm Drains - A

Property Owner's Tidal Wave," UWLA Law Re-

view, Vol. 25

The Oxford Companion to the Supreme Court of the

United States, Kermit L. Hall Ed. New York: Ox-

ford University Press, 1992

Proceedings, Washington Institute on the Federal

Rules of Civil Procedure, 1938

"Property Rights," CO Researcher, Vol.5, no.22,

513-536.

"West Virginia's Very Own Celotex Trilogy,” West

Virginia Law Review, Volume 98, Winter 1996,

Number 2.

OPINIONS BELOW

Lewis v. The BOCA Appeals Board of the City of Clarks-

burg; and the City of Clarksburg .

Lewis v. DePolo, Gray, and the City of Clarksburg

Stay of Judgment Order, Entered September 18, 1995

(Appendix No. 1)

Judgment Order, Entered August 3, 1995 (Appendix

No. 3) :

Findings of Fact and Conclusions of Law, Entered

Nunc Pro Tunc the August 3, 1995, September 18,

1995 (Appendix No. 5)

Protective Order, Entered June 8, 1995 (Appendix

No. 12)

Order, Entered May 17, 1995 (Appendix No. 14)

JURISDICTION

This case involves the unlawful taking without com-

pensation of a twenty-seven unit apartment building that for-

merly housed elderly and low-income residents. The

Respondents damaged the property by the malfunctioning of

their municipal storm drainage works and then used the dam-

age as an excuse to condemn the property without paying for

it. The petitioner sought relief under the Fifth and Fourteenth

Amendments to the U.S. Constitution because the Respon-

dents had taken his property without due process of law, and

denied him equal protection of the laws.

The federal questions were raised early in the litiga-

tion (due process was raised when this case was filed on

August 24, 1990;' claims of compensation were first raised

during the administrative hearing held by the BOCA appeals

Appendix page 82.

board,’ federal constitutional claims to compensation were

first raised on November 5, 1993°) and pursued throughout.

The Circuit Court of Harrison Country Division 2 issued

Summary Judgment orally on June 23, 1995* and by Judg-

ment Order, August 3, 1995.° The Supreme Court of Ap-

peals for West Virginia refused a petition for appeal without

explanation on February 20, 1997. This Court granted a

thirty day extension to the ninety days allowed for filing a pe-

tition for certiorari on May 13, 1997.

This Court's jurisdiction is invoked pursuant to 28

U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The following constitutional and statutory provisions appear

in the appendix hereto:

United States Constitution, Amendment 5

United States Constitution, Amendment 6

United States Constitution, Amendment 14, Section 1

West Virginia Rules of Civil Procedure, Rule 56 and

Rule 57

West Virginia Code, Chapter 29A, State

Administrative Procedures Act

West Virginia Constitution, Article 3, § 10, Article

3,817 |

: September 12, 1990 "...the City could have and perhaps should

have condemned my building, torn the building down..., and compen-

sated me for the loss of my income.” (BOCA Minutes pg. 186). On Oc-

tober 3, 1990, Lewis said, "...It is clearly a proper use of block grant

funds, ...of UDAG repayments to clear blighted areas, to tear the build-

ing down, to pay me for it even." (BOCA Minutes pg. 196).

’ Appendix page 72.

Appendix pages 84 - 106.

Appendix page 3.

oe Pine

Ra Se

oS a ah

ween?

Clarksburg Ordinances, Article 1725 Building Inspec-

tor, Article 1747 Flood Control

STATEMENT OF THE CASE

This is a case where a city's public works damaged an

apartment building and the City then used that damage as an

excuse to condemn the apartment building under a flood plain

ordinance with no compensation to the owner. The city re-

jected claims of contract responsibilities related to problems

with its own sanitary sewer line and payment for trespass due

to a faulty storm drainage system. Instead, it sought fines and

imprisonment if the owner failed to demolish the building at

his expense.

Purchase of the Property - Ellis R. Lewis (herein af-

ter Lewis) purchased a twenty-seven unit apartment building

on the eastern bank of Elk Creek in downtown Clarksburg,

West Virginia, in January 1980, and began immediate reno-

vation of the circa 1913 structure. The city certified the pro-

ject's compliance with the city's Flood Plain Ordinance 1747°

and the building's structural soundness.’ Permits were issued,

and five years of major renovations valued at over $250,000°

were undertaken. Much of the work was done by Lewis,

himself. In addition, Lewis purchased neighboring land to

provide parking and a playground. By 1982 the building was

’ Clarksburg's City Engineer Hugh Marsh issued certification on

August 13, 1980. Appendix 110.

Water Board engineer Henry Trasher approved on August 15,

1980. Appendix 109. :

. Addressing code deficiencies, providing new electrical services,

renovating kitchens and bathrooms, and installing new copper water

lines and schedule 40 wastes.

formally appraised at $301,600.’

Initial Observation of Storm Drainage Problems -

Suspecting storm drainage problems due to the presence of

large masses of ice in the street in front of the building and

observable soil settling adjoining the building's upper retain-

ing wall, in June of 1981, Lewis contacted the city manager.’

Following engineering studies by MSES Engineers, public

hearings, and a legal opinion (unknown to Lewis until well af-

ter 1990)'' that found possible liability for the city with a po-

tential condemnation of the building, the city received federal

block grant moneys to remedy the problem in October of

1984. The block grant application was specifically earmarked

¥ The parties to the suit have not agreed upon a valuation for the

building after 1982. Regular work to renovate the apartments continued

throughout 1983, 1984 and 1985.

Appendix 108.

_ Consultant to the City, Attorney J. Michael McDonald, of

McNeer, Highland & McMunn, wrote to Clarksburg’s Community De-

velopment Agency on May 8, 1985. On page 3 of his Memorandum -

Re: Monticello Avenue Water Project, he wrote "The city has been put

on notice of the existence of a condition which could endanger human

life as well as property." His nine page memorandum analysed the types

and degree of legal responsibility the city would incur if it did or did not

drill to establish the flow of surface or subsurface waters, and detailed

the parties the city should notify of potential adverse affects. On page 7

he wrote, "...it is our opinion that the City should proceed with the drill-

ing project." He recommended that if the city wanted to construct addi-

tional pipelines that they “should approach the owner and request that

he pay for the construction of the pipeline system in front of the build- 4

ing,” (page 8) or, share the cost with the apartment owner, or, “condemn

the two to three foot strip of property in front of the apartment building

necessary to install the collection system. The last alternative would not

only involve the cost of the collection system, but would also require that ]

just compensation to paid to the owner of the property for the taking of ;

this land. However, given the very expensive nature of constructing the

line on the east side of Monticello Avenue, this alternative could prove

more cost efficient." (page 8-9).

a |

for this building. The city's application stated, "A 27-unit

apartment house, occupied primarily by elderly and low in-

come residents, is being adversely affected by the water con-

ditions". The work to remedy the problem was not begun

until 1987, however, and at this writing remains unfinished.

The city's storm drainage system collected storm wa-

ters from several blocks and discharged the water from a ten

inch drain pipe into a porous channel directly opposite and

above petitioner's building. Each time it rained water flowed

across and under adjoining Monticello Avenue, saturated the

soil abbuting the building's foundation and upper retaining

wall, and increased lateral forces acting upon the wall. Five

consulting engineers and City Engineer George Duffer agreed

the retaining wall was distressed by lateral pressures.’

The city's diversion of water in its storm drain system

and failure to comply with contractual obligations for a sani-

tary sewer easement were alleged by Lewis to be proximate

causes of the progressive failure of portions of the founda-

tion,’? exacerbated when, on November 5 and 6, 1985, Elk

Creek flooded and water rose under the building, inundating

the foundation and furthering its erosion. Storm water

caused no direct damage to occupied living spaces and no

tenants were displaced.

” On August 2, 1996 George Duffer wrote a four page analysis

detailing damage to the foundation. In April of 1985, prior to the flood,

a study was done by Mountain State Environmental Services, damage

assessment after the flood was conducted by Thrasher Engineering, and

later studies were done by Onas Aliff, Larry Luttrell and Glen Dyer.

Expert testimony from Onas Aliff, Civil Engineer, and Dr.

Larry Luttrell, Civil Engineering Professor from the West Virginia Uni-

versity School of Engineering corroborate these findings, but their depo-

sitions were not allowed to be submitted into evidence.

Condemnation Notice Citing the Flood Plain Or-

dinance - Lewis requested permits to repair the flood dam-

aged foundation on May 20, 1986."* In spite of the city's role

in causing the damage, Lewis (at that time) was going to do

the repairs at his own expense. Clarksburg issued a denial to

repair or make additional renovations.’ On May 23, 1986,

the city issued a Condemnation Notice’* citing Flood Plain

Ordinance 1747.09.

Lewis paid the full cost of relocation for all of his ten-

ants. The building was vacated by August 15, 1986. Lewis

was responsible for keeping the building boarded up and safe.

It was never alleged that he failed to do so."”

Lewis was not informed of any statutory or constitu-

tional rights to compensation, nor was he allowed to salvage

valuable materials from the site to offset his losses'* or pay

for demolition of the structure. Instead he was advised that

his only recourse wes to contact the Small Business Admini-

stration (SBA) for a loan. Seeing this as a possible way to

obtain partial compensation for his loss, and unaware of Con-

stitutional rights to inverse condemnation due to loss under a

flood plain ordinance, or the attorney's memorandum to the

city regarding the city's responsibility for the storm drain sys-

tem, Lewis pursued disaster loan funding. The SBA funded

the loan, but cancelled after the city and the leinholder

The cost of repairs is in dispute. Lewis claimed under

$100,000, while the city estimates were closer to $200,000.

” Appendix 108. }

' Appendix 35.

. Lewis allowed the property to be taken for taxes on November /

23, 1992, but retained a legal interest in the building until it was pur-

chased by the Urban Renewal Authority of the City of Clarksburg on

December 1, 1994 for the value of the unpaid taxes. Lewis had paid

taxes on the property through 1991. Appendix 107.

” The lienholder bank demanded that salvage be halted.

informed the SBA that they were considering rescission of

the condemnation order. Lewis sued the SBA, and Clarks-

burg, Clarksburg Officials and the leinholder bank (the latter

three for tortious interference with his loan request) in federal

court. That court issued summary judgment ruling that the

SBA had discretion to deny loans without a reason, and

Lewis therefore had no expectancy with which to interfere.

Demolition Order Without Option To Repair

With Threats of Fines and Incarceration - Four years after

condemnation (with his federal suit against the city pending)

on August 9, 1990, a Demolition Order Without Option To

Repair"’ threatened fines and incarceration and brought Lewis

before the City's BOCA Code Enforcement Board (Board).

Lewis sought access to City files to document his over six

year relationship with the city's Community Development

(CD) office, which included two formal applications for fund-

ing. Only three letters were found in the CD files.” The En-

gineering Department files, required oy Clarksburg Ordinance

1725.03c, were entirely missing.

BOCA Board Ruling - On August 24, 1990 Lewis

filed a Petition to Modify and/or Withdraw BOCA Citation”

noting the availability of federal disaster funds to the city at

the time of issuance of the condemnation order, and asserting

that, "The city should waive or be restrained from asserting

any liens, penalties, costs or imprisonment against peti-

tioner....". On October 4, 1990, the Board, without factual

findings, ordered Lewis to begin demolition within 30 days

and complete it within 120 days after that.

Appendix 33.

Lewis retained in his own files numerous documents and two

sets of plans and specifications.

Appendix 82.

First Appeal of BOCA Board's Ruling to the Cir-

cuit Court and Remand - Lewis appealed to the Circuit

Court of Harrison County, Division 1, case number

90-C-780-1 ('90 case). The court remanded, requiring find-

ings of fact and consideration of modification evidence.”

While preparing for the next hearing, Lewis discovered a

sanitary sewer easement which contained city guarantees of

the building's structural integrity (because of the proximity of

the city's sewer line).” Reasserting the claims set forth in his

appeal, Lewis prepared a "BOCA Appeal Remand,"“ made

claims regarding the sanitary sewer, and reminded the Board

that the original condemnation was under the flood plain

ordinance. These documents were submitted to the Board,

but were never considered by the Board as called for by the

remand order. The remand resulted in a decision of the

Board affirming the Demolition Order Without Option to

“7 Remanded on April 20, 1991. Appendix 27.

7 A copy of this document was placed in the BOCA record.

Lewis alleged that Clarksburg was in violation of the sewer easement in

that the sewer encroached within the required setbacks from the build-

ings foundation. Change order #2 (illustrated on a map) included in-

stallation of a large combination sewer bisecting the foundation. Lewis

sought the change order with a Freedom Of Information Act request, but

was informed the documents could not be found.

" It included twenty-one reasons for modification of the demoli-

tion order, and a "Factual Statement" identifying documents and deposi-

tion testimony.

65 "Mr. DePolo stated that he did not feel, that in the judge's

[McCarthy's] order, that evidence could be presented at this time that

have(sic) not been considered at the last hearings." The documents were

not found in the BOCA Board's records. However, counsel for the city

later stipulated to their inclusion in the record on appeal to the Circuit

Court on September 27, 1994. Board Attorney DePolo had advised the

Board that, "...he has the right, under the code, to appeal this decision

to the Circuit Court. The Circuit Court can then listen to every argu-

ment he has.”

Repair on November 6, 1991.”

Second Appeal to Circuit Court and Clarksburg's

Complaint for Declaratory Judgment - Lewis' Amended

Appeal to the Circuit Court of Harrison County was filed on

June 24, 1992.7” Clarksburg responded with a motion to dis-

miss and a request for declaratory judgment in the amount of

$160,000. Lewis alleged that this was an improper action

within administrative appeal,” as the adminstrative proceed-

ing was criminal in nature and the declaratory judgment ac-

tion was civil. Lewis counterclaimed arguing that Clarksburg

was responsible for the storm and sanitary sewers, could ob-

tain of federal moneys to demolish flood damaged property,

and lacked of evidence in support of the $160,000 anticipa-

tory costs for demolition.”

Lewis Brings Separate Civil Suit for Breach of

Contract, Trespass, Inverse Condemnation, Etc. In 1993,

Lewis filed a new civil suit against Clarksburg (‘93 case)”

alleging breach of contract” (Count VII), trespass (Count

= Appendix 27.

. Appendix 78.

” In FMC Corp. v. West Virginia Human Rights Comm'n, 403

S.E. 2d 729 (W.Va. 1991) that court held that, "An administrative pro-

ceeding on appeal in circuit court cannot be transformed into an action

at law for damages."

7” September 29, 1992.

7 Complaint 93-C-792-1 was filed October 7, 1993. Lewis had

lost his federal suit in 1992. Lewis was advised by Judge McCarthy that

he had the right to file such a suit. The '93 case, a civil suit, operated on

different legal principles than the '90 case and addressed issues never

raised in any court by Lewis. In the '90 case Lewis sought to show that

he was not responsible for demolition, but with the '93 he sought com-

pensation for his loss.

Lewis did not become fully aware of the degree of the breach of

contract, or that a contract existed until 1991. Minutes of the BOCA

meeting held on October 7, 1991 note that, "Mr. Rodd showed deeds for

the right-of-was(sic) acquired by the City for this sewer and there were

VI), inverse condemnation (Count IV), failure of the City's

engineering department to maintain records (Count VIII) and

other tort claims. On December 7, 1993, on the court's own

motion, the new ‘93 case was transferred to Division 2.

Pretrial Briefs and Rulings in Divisions 1 for '90

case - Judge McCarthy ordered the parties, to brief whether

the City had, under any circumstances, legal right or authority

to obtain prospective declaratory or injunctive relief requiring

an owner to undertake an affirmative act to demolish a build-

ing.” On July 21, 1994, Judge McCarthy held in favor of the

prospective declaratory or injunctive relief question, upon

findings, and transferred the '90 case to Division 2, as well.

Unfortunately, no record exists of Division 1 proceedings.”

Motions to Dismiss and Denial of Discovery in Di-

vision 2 - In Division 2, Judge Bedell entered a detailed

scheduling order for discovery and a trial date. Judge Bedell

said that orders and motions for the two cases would be con-

sidered on the same days for convenience. Lewis prepared a

brief, including arguments based in part upon this Court's rul-

ing in First English Evangelical Lutheran Church v. Los An-

geles County 482 U.S. 304 (1987) and raised Fifth and

Fourteenth Amendment claims.“ Motions to Dismiss were

filed by Clarksburg's attorneys.** Lewis filed interrogatories,

several clauses in these deeds stating that the City would have responsi-

bility for the integrity for the upper retaining wall. (Mr. Rodd produced

actual copies of the deeds) The deeds stipulated that the City would re-

tain a continuing liability for any problems associated with failure of the

storm drains." (BOCA Minutes pg. 222).

” The city filed its brief on October 7, 1993. Lewis filed a pro se

Response Brief, to which the City filed a Reply Brief.

5< Lewis alleged that this was a violation of his due process rights.

™ Appendix 69.

” Motions to Dismiss were filed on November 15, 1990, Septem-

ber 29, 1992 and November 4, 1993, but no substantive response was

made by the city to Lewis’ claims in the Counterclaim or in his 1993

requests for admissions and requests for production in both

cases. The city filed motions for protective orders, which

were granted at the April 5, 1995 hearing” resulting in a de-

nial of discovery to Lewis and his attorney. The request for

protective orders cited "“effort.., time.., expense... and the

[lack of the Court's] ruling on pending motions to dismiss."

Summary Judgment Without Motion, Notice, Dis-

covery and Opportunity to Respond - Finally, on June 23,

1995 at a hearing on the motions to dismiss, the court an-

nounced summary judgment. No motions for summary judg-

ment were filed by either party under West Virginia Rules of

Civil Procedure 56. No notice was given that summary judg-

ment would be considered as required by Rule 56. Judge Be-

dell stated that the '90 case was not a jury issue and affirmed

the BOCA Board's decision. The judge stated that under new

interpretations of Rule 56 he had discretion to change a hear-

ing for a motion to dismiss to a hearing for summary judg-

ment in the '93 case. Lewis’ attorney objected to the

summary judgment,” but the court granted summary judg-

ment for the defendants in the '93 case.

On August 3, 1995 Judge Bedell issued a Judgment

Order,* which incorporated by reference Findings of Fact

Complaint.

“5 Order entered May 17, 1995 and extended . Appendix 12.

og Trial counsel objected to the lack of notice, denial of discovery

and lack of opportunity to present argument and evidence against grant-

ing of a summary judgment motion. Judge Bedell responded by stating,

"Okay, counsel, let me note all that for the record and I have a sneaky

suspicion that someone miay look over my shoulder on this and that's

fine. Not to be glib about it, but my paycheck will come at the end of

the month whether they reverse me or whether and have me and think

that I am the world's dumbest or laziest judge like the former Justice

Neeley or whatever.” (errors of grammar in original transcript Appen-

dix page 106).

7 Appendix 3.

and Conclusions of Law, entered on September 20, 1995,

nunc pro tunc August 3. The court: [1] affirmed the BOCA

Board rulings (which included the provision for fines and in-

carceration after April 2, 1992) applying an Administrative

Procedures Act standard; [2] dismissed with prejudice the Pe-

tition for Appeal in Civil Action No. 90-C-780-2; [3] was si-

lent on the specifics of the $160,000 declaratory judgment

action, but did find that the right to obtain prospective judg-

-- ment was the law in this case; [4] granted summary judgment

for the city in Civil Case 93-C-792-2; [5] found that con-

tractual obligations and trespass allegations, while possibility

legitimate, were filed outside the statute of limitations which

he ruled started in 1980 or 1985 at the latest; [6] was silent

on the numerous factual issues raised in Lewis' Statement of

Issues; and [7] was silent on the issue of inverse condemna-

tion.” Judge Bedell issued a stay of his order, "until a final

determination is made by the Supreme Court of Appeals of

West Virginia."

Appeal to Supreme Court of Appeals for West

Virginia - Lewis appealed to the Supreme Court of Appeals

for West Virginia on October 25, 1995.° On February 20,

1997 that court "refuse[d] said petition for appeal," without

comment. A Notice of Appeal was filed with that court on

March 19, 1997. A Renewal of Petition was filed with that

court on April 30, 1997 reasserting Constitutional claims and

apprising the court of the evidence of the faulty storm drain

and sewer system gathered when the building was demolished

- Conclusions of Law #19 (appendix page 10) states that Count

IV deals with procedural irregularities. Reference to Appendix page 61

will illustrate that Count IV deals with inverse condemnation.

. The appeal included Lewis' claim to "constitutional safeguards

when a person's property and liberty interests are potentially or actually

subject to adverse state action.” (Appeal page 17.) Argument 16 of the

Appeal repeated Lewis' takings issue argument and reasserted Fifth and

Fourteenth Amendment claims.

in 1996. The Renewal of Petition was denied on May 1,

1997.

Postscript: Demolition and New Evidence - When

the city's Urban Renewal Authority finally demolished the

building in the fall of 1996, more than ten years after condem-

nation, removal of the building and portions of the foundation

brought an immediate collapse of the adjacent Monticello

Avenue. Two sanitary sewer lines which were once under the

building had to be rebuilt. Only emergency placement of

11,000 tons of large aggregate (rock) at the site could stabi-

lize the hillside. This confirmed Lewis’ claims of storm sewer

and sanitary sewer impacts upon the building's foundation.

REASONS FOR GRANTING CERTIORARI

The facts in this case apply to the legal and financial

misfortunes of one man, but the implications of the lower

court's ruling and its actions have relevance for every Ameri-

can. We are taught to believe that in this country every per-

son has due process rights. We are taught that the

government cannot take your property without compensation

in eminent domain. We are not taught the complex nuances

of inverse condemnation. As Justice Stevens once put it,

"even the wisest of lawyers would have to acknowledge great

uncertainty about the scope of this Court's takings jurispru-

dence."*' Nor do current law or the Court's policy require

that citizens be informed of their rights. We Mirandize those

arrested, but we do not mandate informing property owners

of their rights when government acts against their financial in-

terests or threatens incarceration. If the Court fails to act on

this case it sends a dangerous message to Clarksburg, West

™ Nollan v. California Coastal Commn. (1987) 483 U.S. 825,866

(dissenting opinion).

Virginia (where media coverage has been extensive) and to

towns across America: you can condemn property, you can

violate due process, and you can reap financial rewards for

doing so, or at least you can avoid financial responsibility.

To allow the actions taken against Lewis to stand is to en-

courage other cities and states to act similarly. Thousands of

property owners - victims of flood, tornado, earthquakes and

hurricanes, and negligent city governments - could find their

property condemned, the opportunity to salvage items from

their homes and businesses or to repair them refused, and

then be sued by their government as criminals for the condi-

tion of their property.

1. The decision below conflicts with decisions of this

Court and other courts finding inverse condemnation li-

ability because of flood plain ordinances:

This case originates with a regulatory "taking." This

Court has consistently held that just compensation is guaran-

teed by the Fifth and Fourteenth Amendments when a public

entity "takes" private property without initiating eminent do-

main under several circumstances. In every non-emergency

instance appropriate due process is necessitated.

Application to Flood Plain Ordinance - The case

of First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987) is directly on

point here. In that case the Court found a rule of liability

with respect to application of flood plain ordinances. In the

issue now before this court, the "taking" is effectively perma-

nent, clearly a stronger application than that in First Evan-

gelical.*

5 See also Dooley v. Town Planning and Zoning Commission

(Conn. 1964) 197 A 2d 770, 773-774, finding a taking because of the

use prohibition in a flood plain ordinance.

No Trespass Without Compensation - Starting with

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).”

this Court has required compensation when a public right of

way, even one underground, such as the faulty storm drain

system or the sewer line in this case, trespasses upon private

land. This argument is strengthened by the ruling in Loretto

v. Teleprompter Manhattan CATV Corp. 458 U.S. 419

(1982) which found that any permanent physical occupation

of property, no matter how slight, amounted to a taking.

In a California case, Yee v. City of Sausalito, absolute

liability was imposed when diverted water from a collapsed

storm drainage scheme caused property damage.“

Impact on Economic Use, Investment Backed Ex-

pectations and Right to Repair - With Agins v. City of

Tiburon 477 U.S. 255 (1980) this Court established an im-

pact test for the application of inverse condemnation, or

regulations that have an undue impact on landowners depriv-

ing them of all practical uses, all reasonable uses, all beneficial

uses, or all economic uses of their property. Similarly, in

Penn Central Transportation Co. v. New York City (1978)

438 U.S. 104, the Court added the extent to which the regu-

lation has interfered with "distinct investment-backed expec-

tations." Lewis clearly had distinct investment-backed

expectations for an economic use of his property. He had in-

vested over $250,000 in repairs and upgrades alone. This

was a rental property. It generated an income stream and sig-

nificant tax dollars. It had been functioning as an apartment

= "...The protection of private property in the Fifth Amendment

presupposes that it is wanted for public use, but provides that it shall not

be taken for such use without compensation." A similar assumption is

made in the decisions upon the Fourteenth Amendment. Hairston v.

Danville & Western Ry. Co., 208 U.S. 598, 605, 28 S. Sup. Ct. 331, 13

Ann. Cas. 1008.

™ Yee v. City of Sausalito, 141 Cal. App.3d 917, 190 Cal. Rptr

595 (1983).

building for decades, and Lewis knew that when he bought it.

When the city denied him a permit to repair, they de-

nied him the opportunity to repair the foundation even at his

own expense. The decisions of the West Virginia courts up-

holding this denial conflict with other state court decisions.

Those decisions reflect a general presumption that where no

emergency exists, owners must be afforded the opportunity to

repair damaged structures. While the cost of allowable re-

pairs relative to value of the structure varies, there appears

general consensus that the structure must be beyond reason-

able repair before the government can deny a repair permit.“

Original Title Granted Use - In Lucas v. South

Carolina Coastal Council this Court summarized and ex-

panded upon its previous rulings and held that inverse con-

demnation only applied if the original title to the property

allowed the desired use. This case satisfies the Lucas formu-

lation,’ Lewis’ original title included the right to an apartment

building; he was not attempting to use the property for a new

purpose. If, as called for in Lucas, “case-specific inquiry"

were applied, one would find that Lewis had suffered a

"physical invasion" of his property. And finally, as called for

” Inman v New Hartford (1986, 4th Dept) 116 App Div 2d 998,

498 NYS2d 618; Poughkeepsie v Clifford (1986, 2d Dept) 120 App Div

2d 695, 502 NY S 2d 768; Albert v. Mountain Home (Idaho) 337 P2d

377, Aurora v. Meyer, 38 Ill 2d 131, 230 NE2d 200; Childs v. Ander-

son, 344 Mich 90, 73 NW2d 280; Application of Suffern, 12 App Div 2d

769, 209 NYS2d 599; Newton v. Highland Park (Tex Civ App) 282

SW2d 266; Jarvis v. Baltimore, 248 Md 528, 237 A2d 446. Horton v.

Gulledge 277 N.C. 353, 177 S.E.2d 885, 890 (1970).

- Lucas v. South Carolina Coastal Council 505 US 1003, 120 L

Ed 2nd 798, 112 S Cr 2886 (1992):

ss "...the state may resist an asserted right to compensation ...only

if the logically antecedent inquiry into the nature of the owner's estate

shows that the proscribed use interests were not part of the owner's title

to begin with..."

in Lucas, Lewis was denied “all economically beneficial or

productive use of land."

Abuse of the Police Power - In the present case the

West Virginia courts did not stop at denial of inverse con-

demnation claims, they went further to allow an abuse of the

police power. As noted by Justice Holmes in Pennsylvania

Coal Co. v. Mahon,

"When this seemingly absolute protection [Fifih

Amendment] is found to be qualified by the police

power, the natural tendency of human nature is to

extend the qualification more and more until at last

private property disappears."

Further clarification of when police power can be ap-

plied was given in Goldblatt v. Town of Hempstead, 369 U.S.

590 at 593 (1962). This Court held that federal or state regu-

lations prohibiting the use of property to protect the "...health,

morals or safety of the community..." were an appropriate ap-

plication of the police power when, "legislation does not dis-

turb the owner in the control or use of his property for lawful

purposes, nor restrict his right to dispose of it...". Here,

Lewis has been prevented from continuing a perfectly lawful

use of his property. The city took advantage of damage

caused by its own storm drain system to condemn the prop-

erty under its flood plain ordinance. Such an action takes

Lewis’ property without either due process or just compensa-

tion. It is illegal.

2. The decision granting prospective injunctive relief con-

flicts with this Court's decisions that authorize such puni-

tive destruction only in cases of emergency or imminent

danger - The cases discussed in point one above illuminate

the need to provide compensation for taking of the type ap-

plicable to the case before this Court. But, there is a related

issue: whether the city can order the building demolished - at

the owner's expense and under threat of criminal prosecution

- if there is no emergency. This Court's standard teaching is

that it may not.“

The Circuit Court erred when it upheld Judge McCar-

thy's rulings granting prospective relief requiring Lewis to un-

dertake an affirmative act to demolish a building, in the

absence of factual development® and without distinguishing

emergency police power considerations from those applicable

to this case.”

The West Virginia Code and Ordinances of the City

of Clarksburg, which explicitly provide a remedy if the owner

fails to comply with the municipality's code enforcement ac-

tion, state that the remedy "shall be a lien against the real

property upon which such costs were incurred."*' While the

Building Commission may order demolition, the only express

provision in the Code or the Ordinance, for recovery of costs,

is the placing of a lien upon the property "after the sale of any

and all salvageable material is credited to the account."* No

such proper salvage occurred and no credits could be given

sas See for example, Hadacheck v. Sebastian (1915) 239 U.S. 394

where a brickyard creaied a nuisance for its neighbors and Miller v.

Schoene (1928) 276 U.S. 272 where cedar disease threatened a commer-

cial apple crop.

= Judge McCarthy's recommendation was contingent upon a find-

ing that the defects in the BOCA proceedings were not material nor

prejudicial. This did not occur because the appeal was denied in the "90

case, and summary judgment was rendered in the "93 case.

“ The West Virginia Supreme Court's ruling in State Ex Rel

State Line Sparkler v. Teach, 418 S.E. 2d 585 W.Va. (1992) is distin-

guishable as that case involved the hazardous manufacture of explosive

products after issuance of stop orders.

- W.Va. Code 8-16-12, and Codified Ordinances of the City of

Clarksburg Section 1725.02(f).

” Id. 1725.02(f).

to Lewis.

Moreover, according to both Federal Rules of Civil

Procedure Rule 57 and West Virginia Rules of Civil Proce-

dure 57 Lewis was entitled to a jury” hearing on these mat-

ters. The ruling in the '90 case denies Lewis' Constitutional

rights to due process under the Fifth and Sixth Amendments

of the United States Constitution. Additionally, Lewis was

denied the opportunity to present full evidentary support for

his complaint.

Absent his Sixth Amendment nghts Lewis faces 30

days in jail for each day he failed to demolish the building af-

ter April 1992. Since the Circuit Court merely upheld the

BOCA Board ruling granting a right to incarceration and stat-

ing no maximum penalty, Lewis, now fifty-five, could spend

the rest of his life in jail.

3. The manner in which the Circuit Court of Harrison

County acted denied Lewis his right to due process of

law.

Notice Announced by Judge on Day of Ruling -

The Judge announced summary judgment. This deviates

from Rule 56 which calls for a motion by one of the parties.

Additionally, oral motions (or in this case oral notice) for

summary judgment are not authorized under Rule 56.~ When

a motion for summary judgment is made, the moving party

bears an initial burden of,

"informing the district court of the basis for its mo-

tion, and identifying those portions of the 'plead-

ings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if

wg In McClung v. Marion County, 360 S.E.2d 221 (W. Va. 1987)

the state court ruled that these rights exist.

” Cool Fuel, Inc. v. Connett (9th Cir. 1982) 685 F2d 309, 311.

any,’ which it believes demonstrate the absence of a

genuine issue of material fact."*

The judge did not fulfill these requirements.

Rule 56(c) also provides that : "the motion shall be

served at least 10 days before the time fixed for the hearing."

Several courts have ruled® in support of the ten day notice

requirement. In Celotex Corp. v. Catrett, this Court held that

lower courts could, "...enter summary judgment sua sponte,

so long as the losing party was on notice that she had to

come forward with all her evidence." (Emphasis added.) In

this case there wasi_ notice.

Discovery Denied - In Anderson v. Liberty Lobby,

477 U.S. 242 this Court ruled that the party opposing sum-

mary judgment must have had sufficient opportunity through

discovery to gather the evidence necessary to avoid summary

judgment, and that,

"a continuance of summary judgment is mandatory

upon a good faith showing by affidavit that the

continuance is needed to obtain facts essential to

justify opposition to the motion."

No such opportunity was afforded Lewis despite his counsel's

objections. The decision below conflicts with the decisions of

numerous other courts, holding that a motion to dismiss

could not be converted to motion for summary judgment if a

- Celotex Corp. v. Catrett, 477 U.S. 317 (at 323).

- Management Investors v. United Mine Workers of America,

C.A. 6th, 1979 610 F2d 384: White v. Texas Am. Bank/Galleria, N.A.,

958 F.2d 80 (Sth Cir. 1992); Brooks V. Hussman Corp., 878 F.2d 115

(3d Cir. 1989).

In Scott v. Courtesy Inns, Inc., C.A. 5th 1973, 472 F 2d 563.

the court held that it was an error to treat defendant's motion to dismiss

as a motion for summary judgment without first giving plaintiff at least

ten days notice as required by the rules.

Stay prevented the plaintiff from conducting discovery.” A

failure to allow discovery has also been found to require re-

versal,” as this is a violation of constitutionally guaranteed

due process rights.

Finally, rule 56(f), allows a summary judgment motion

to be denied, or the hearing on the motion to be continued, if

the nonmoving party has not had an opportunity to make full

discovery. Lewis had been denied discovery by the protective

order. The city's inability to locate records germain to the

building similarly undermined discovery efforts.

No Opportunity to Present Evidence - A full and

fair opportunity to develop and present facts and legal argu-

ments in support of one's position is a critical part of a sum-

mary judgment ruling. Several cases illustrate broad support

for this principle.”

Burden of Proof - Had evidence been submitted to

defend against a motion for summary judgment the burden of

proof would have required that the court consider the persua-

siveness of evidence and plausibility of nonmovant's claim.”

Additionally, while the nonmoving party bears the burden of

persuasion at trial, the moving party may meet its burden on

summary judgment by showing that the nonmoving party's

evidence is insufficient to carry its burden of persuasion at

wid Maritrend, Inc. v. Galveston Wharves, D.C. Tex. 1993 152

F.R.d. 543. and DiMartini v. Ferrin (9th Cir. 1989) 889 F2d 922.

- Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fi-

delity Life Ins. Co., 958 F.2d 836 (8th Cir. 1992).

i Portsmouth Square v. Shareholders Protective Comm. (9th Cir.

1985) 770 F2d 866, 869; Cool Fuel, Inc. v. Connett (9th Cir. 1982) 685

F2d 311-312. In US. v. J.B. Williams Co., C.A. 2d, 1974, 498 F.2d 414

the court found a right to adduce testimony of live witnesses and cross-

examine opponent's witnesses, if the party opposing summary judgment

raises any triable fact questions.

U.S. 574 (1986).

trial."’ The nonmoving party creates a genuine issue of mate-

rial fact if it provides sufficient evidence to allow a reasonable

jury to find for him at trial.

That's the way it is supposed to work. However,

when the trial court considers the matter without notice and

then refuses to permit discovery to allow the responding

party to demonstrate the validity of his position, there has

been an evident denial of due process.

The matter before the court involves numerous dis-

puted material facts. Among them are: the property's con-

demnation under a floodplain ordinance (a type of inverse

condemnation); breach of contract regarding the sewer; and

trespass regarding the storm drain. Additionally, numerous

matters including timeframes and cost, are in dispute. To al-

low summary judgment, as it was applied in this case, to

stand is to set a precedent that will take summary judgment

law into territory unforseen by its creators in 1938, and un-

charted by any current law.

Had the city of Clarksburg addressed its responsibili-

ties with regard to the storm and sewer systems the property

would never have been condemned, all subsequent litigation

could have been avoided, and abuses of Fifth, Sixth and Four-

teenth Amendment mghts would not have taken place.

Clarksburg, West Virginia is a small town and a county seat.

If this city's actions, and the county circuit court rulings

" Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.

2548, 2552-53 (1986). See also, Sempier v. Johnson & Higgins, 45 F.3d

724, 727 (3d Cir.), cert. denied, 115 S. Ct. 2611 (1995). Fed. R. Civ. P.

56(c). Sempier, 45 F.3d at 727; Colgan v. Fisher Scientific Co., 935

F.2d 1407, 1413 (3d Cir.), cert. denied, 502 U.S. 941 (1991). IIL.

” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510 (1986).

upholding them are allowed to stand it will send a message.

The message will be your city can violate your constitutional

rights and the right to earn and hold private property fought

for since the time of John Locke. The message, especially to

citizens in small town America, will be you can't fight city

hall, so don't even try.

CONCLUSION

For the foregoing reasons, I respectfully request that

the petition for writ of certiorari be granted.

Respectfully submitted,

Ellis R. Lewis, Pro Se

P.O. Box 2403

Riverside, Ca. 92516

(909)685-6675

June 20, 1997

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.