Bonner v. City of Brighton
| Decision Date | 24 April 2014 |
| Docket Number | Docket No. 146520.,Calendar No. 3. |
| Citation | 848 N.W.2d 380,495 Mich. 209 |
| Parties | BONNER v. CITY OF BRIGHTON. |
| Court | Michigan Supreme Court |
Garan Lucow Miller, PC, Detroit (by Rosalind Rochkind and Caryn A. Gordon), Pedersen, Keenan, King, Wachsberg & Andrzejak, PC, Commerce Township (by Michael M. Wachsberg), and Law Offices of Paul E. Burns, Brighton (by Paul E. Burns and Bradford L. Maynes) for the city of Brighton.
Essex Park Law Office, PC, S Lyon (by Dennis B. Dubuc), for Leon and Marilyn Bonner.
McClelland & Anderson, LLP, Lansing (by David E. Pierson), and Vercruysse Murray and Calzone PC, Farmington Hills (by Ronald E. Reynolds) for the Real Property Section of the State Bar of Michigan.
Plunkett Cooney, Bloomfield Hills (by Mary Massaron Ross and Josephine A. DeLorenzo) for the Michigan Municipal League.
McClelland & Anderson, LLP (by Gregory L. McClell and Melissa A. Hagen, Lansing), for the Michigan Association of Realtors.
Johnson, Rosati, Schultz & Joppich, P.C., Farmington Hills (by Carol A. Rosati and Thomas R. Schultz), for the Public Corporation Law Section of the State Bar of Michigan.
This case involves two landowners' facial challenge to the constitutionality of § 18–59 of the Brighton Code of Ordinances (BCO), which creates a rebuttable presumption that an unsafe structure may be demolished as a public nuisance if it is determined that the cost to repair the structure would exceed 100 percent of the structure's true cash value as reflected in assessment tax rolls before the structure became unsafe. Specifically, we address whether this unreasonable-to-repair presumption violates substantive and procedural due process protections by permitting demolition without affording the owner of the structure an option to repair as a matter of right.
As a preliminary matter, we clarify that the landowners' substantive due process and procedural due process claims implicate two separate constitutional rights, and that we must analyze each claim under separate constitutional tests. The Court of Appeals therefore erred by improperly conflating these analyses and subsequently determining that BCO § 18–59 facially violates plaintiffs' general due process rights. Instead, when each due process protection is separately examined pursuant to the proper test, the ordinance does not violate either protection on its face.
We hold that BCO § 18–59 does not constitute an unconstitutional deprivation of substantive due process because the ordinance's unreasonable-to-repair presumption is reasonably related to the city of Brighton's legitimate interest in promoting the health, safety, and welfare of its citizens. Furthermore, the ordinance is not an arbitrary and unreasonable restriction on a property owner's use of his or her property because there are circumstances under which the presumption may be overcome and repairs permitted.
We likewise hold that the city of Brighton's existing demolition procedures provide property owners, including plaintiffs, with procedural due process. Contrary to plaintiffs' argument, the prescribed procedures are not faulty for failing to include an automatic repair option, which is, in essence, plaintiffs' substantive due process argument recast in procedural due process terms. For purposes of this facial challenge, it is sufficient that aggrieved parties are provided the right to appeal an adverse decision to the city council as well as the right to subsequent judicial review. For the facial challenge to succeed, plaintiffs must show that no aggrieved property owners can meaningfully exercise their right to review or that such review is not conducted impartially. Because they have not done so, plaintiffs have failed to establish that BCO § 18–59, on its face, violates their procedural due process rights.
We therefore reverse the judgment of the Court of Appeals and remand this case to the Livingston Circuit Court for further proceedings consistent with this opinion.
Plaintiffs Leon and Marilyn Bonner own two residential properties, 122 E. North Street and 116 E. North Street, both located in downtown Brighton. Situated on these properties are three structures—two former residential homes and one barn/garage—all of which have been unoccupied and generally unmaintained for over 30 years. In January 2009, defendant city of Brighton's (the City) building and code enforcement officer, James Rowell (the building official), informed plaintiffs via written notice that these three structures had been deemed “unsafe” in violation of the Brighton Code of Ordinances, and further constituted public nuisances in violation of Michigan common law.1Plaintiffs were also informed of the building official's additional determination that it was unreasonable to repair these structures consistent with the standard set forth in BCO § 18–59, which provides in its entirety as follows:
Whenever the city manager, or his designee, has determined that a structure is unsafe and has determined that the cost of the repairs would exceed 100 percent of the true cash value of the structure as reflected on the city assessment tax rolls in effect prior to the building becoming an unsafe structure, such repairs shall be presumed unreasonable and it shall be presumed for the purpose of this article that such structure is a public nuisance which may be ordered demolished without option on the part of the owner to repair. This section is not meant to apply to those situations where a structure is unsafe as a result of an event beyond the control of the owner, such as fire, windstorm, tornado, flood or other Act of God. If a structure has become unsafe because of an event beyond the control of the owner, the owner shall be given by the city manager, or his designee, reasonable time within which to make repairs and the structure shall not be ordered demolished without option on the part of the owner to repair. If the owner does not make the repairs within the designated time period, then the structure may be ordered demolished without option on the part of the owner to repair. The cost of demolishing the structure shall be a lien against the real property and shall be reported to the city assessor, who shall assess the cost against the property on which the structure is located.2
Consequently, plaintiffs were ordered to demolish the structures within 60 days of the date of the building official's letter.
Because demolition had been ordered without an option to repair, plaintiffs appealed the building official's determination to the Brighton City Council (city council) pursuant to the appellate process set forth in BCO § 18–61, which provides in relevant part:
An owner of a structure determined to be unsafe may appeal the decision to the city council. The appeal shall be in writing and shall state the basis for the appeal.... The owner or his agent shall have an opportunity to be heard by the city council at a regularly scheduled council meeting. The city council may affirm, modify, or reverse all or part of the determination of the city manager, or his designee.
Initially, the city council stayed its review pending the building official's interior inspection of the structures. However, despite having previously agreed to allow the building official interior access, plaintiffs thereafter refused entry, causing the City to petition for and obtain administrative search warrants. On May 27, 2009, the building official and several other representatives of the City inspected the structures and found over 45 unsafe conditions therein. The hearing resumed on June 4, 2009, and June 18, 2009, during which the city council received written reports and heard oral testimony from both parties on the issues of the City's findings and conclusions pursuant to the interior and exterior inspection of the premises, as well as its cost estimates for the structures' repair versus their demolition. On July 16, 2009, the city council unanimously affirmed the building official's determination that the structures were unsafe under all ten of the standards set forth in BCO § 18–46.3 The city council likewise found that plaintiffs had been maintaining unsafe structures in violation of BCO § 18–47,4 that the structures were unreasonable to repair under BCO § 18–59, and that demolition was required within 60 days of its decision.5
Rather than appeal the city council's decision to the Livingston Circuit Court as an original action per BCO § 18–63,6 plaintiffs instead filed this independent cause of action against the City, alleging violations of due process, generally, as well as substantive due process; a violation of equal protection; inverse condemnation or a regulatory taking; contempt of court; common-law and statutory slander of title; and a violation of Michigan housing laws under MCL 125.540.7 The City subsequentlyfiled its own complaint against plaintiffs in a separate action, requesting injunctive relief in the form of an order enforcing BCO § 18–59 and requiring demolition of the structures.
After consolidating these cases, the circuit court denied the City's request for injunctive relief and likewise denied relief to plaintiffs on several of the theories they had advanced. However, the circuit court did address the constitutionality of the ordinance, determining that, on its face, BCO § 18–59 violates substantive due process by permitting the City to order an unsafe structure to be demolished as a public nuisance without providing the owner the option to repair it when the structure is deemed unreasonable to repair as defined under the ordinance. The circuit court thus granted plaintiffs' renewed motion for partial summary disposition under MCR 2.116(C)(10) on the substantive due process claim and thereafter denied reconsideration.8
After granting the City's application for leave to appeal, the Court of Appeals affirmed the circuit court in a split...
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