Bonner v. City of Brighton

Decision Date04 December 2012
Docket NumberDocket No. 302677.
Citation828 N.W.2d 408,298 Mich.App. 693
PartiesBONNER v. CITY OF BRIGHTON.
CourtCourt of Appeal of Michigan — District of US

OPINION TEXT STARTS HERE

Essex Park Law Office, P.C. (by Dennis B. Dubuc, S Lyon), and John M. Shureb, Plymouth, for Leon V. and Marilyn E. Bonner.

Law Office of Paul E. Burns, Brighton, (by Paul E. Burns and Bradford L. Maynes) and Michael M. Wachsberg, Commerce Township, for the city of Brighton.

Before: MARKEY, P.J., and MURRAY and SHAPIRO, JJ.

MARKEY, P.J.

Defendant-counterplaintiff, city of Brighton (the city), appeals by leave granted the trial court's order granting partial summary disposition in favor of plaintiffs. The trial court determined that § 18–59 of the Brighton Code of Ordinances (BCO) violates substantive due process when it permits the city to have an unsafe structure demolished as a public nuisance, without providing the owner the option to repair it, if the structure is deemed unreasonable to repair, which is presumed when repair costs would exceed 100 percent of the structure's true cash value as reflected in the assessment tax rolls before the structure became unsafe. We interpret the ordinance as only allowing the exercise of an option to repair when a property owner overcomes or rebuts the presumption of unreasonableness by proving that it is economical to do so, regardless of whether the property owner is otherwise willing and able to timely make the necessary repairs. We conclude that this standard is arbitrary and unreasonable. We additionally find that while police powers generally allow the demolition of unsafe structures to achieve the legitimate legislative objective of keeping citizens safe and free from harm, the ordinance's exclusion of a repair option when city officials deem the repairs unreasonableon the basis of expenses that the owner is able and willing to incur bears no reasonable relationship to the legislative objective. This is true because demolition does not advance the objective of abating nuisances and protecting citizens to a greater degree than repairs, even unreasonable ones. Therefore, we hold that the ordinance violates substantive due process. Moreover, by not providing a procedure to safeguard an owner's right to retain property by performing what others might consider unreasonably expensive repairs, which would burden the city to a lesser extent than demolition, the city's ordinance violates procedural due process. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiffs own two residential properties located in downtown Brighton. There is a house on one parcel of property and a house with a garage or barn on the other. According to the city, the three structures have been unoccupied and largely ignored and unmaintained for over 30 years, representing the most egregious instances of residential blight in Brighton. The city's building and code enforcement official (hereafter “building official”) informed plaintiffs in a letter that the structures on the two properties constituted unsafe structures under the BCO 1 and public nuisances under Michigan common law. The building official cited a litany of alleged defects and code violations in regard to the condition of the structures. Plaintiffs were further informed that it had been determined that it was unreasonable to repair the structures as defined in BCO § 18–59, which provides in relevant part 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.

Plaintiffs were ordered to demolish the structures with no option to repair within 60 days.

Plaintiffs appealed the determination to the city council pursuant to BCO § 18–61, which provides in pertinent 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.

In preparation for the appeal, plaintiffs retained a structural engineer and various contractors to determine the repairs necessary to bring each structure into compliance with the applicable building codes. Plaintiffs subsequently filed affidavits signed by their retained engineer and contractors that addressed the condition of the structures relative to their professional field and provided cost estimates with respect to the proposed repairs. These individuals prepared drawings and repair plans and asserted that the structures were safe, structurally sound, and readily repairable. At a hearing before the city council, plaintiffs agreed to provide the building official with an expert's report and to allow city personnel access to the structures for purposes of exterior and interior inspections. The city council tabled the appeal pending the inspections. Subsequently, plaintiffs authorized their contractors to commence some repairs, and applications for building permits were submitted to the city. In a letter to plaintiffs, the building official denied the building-permit applications and accused plaintiffs of refusing to allow inspections of the structures and of failing to provide their expert's report, contrary to plaintiffs' agreement at the city council hearing. The building official also noted that the city had the right to inspect property before granting permits. Because they were denied building permits, plaintiffs did not complete any repairs.2 Plaintiffs' alleged lack of cooperation and failure to abide by their agreements resulted in the building official obtaining administrative search warrants for the properties. The search warrants authorized a search, inspection, and examination of the interior and exterior of each structure to determine whether they were in compliance with applicable laws, codes, and ordinances. After inspecting the structures pursuant to the administrative search warrants, the city's inspectors and experts identified extensive defects and code violations, requiring numerous repairs and the replacement of certain structural features. When litigation commenced, the city filed affidavits by these individuals. In communications to plaintiffs and the city council, the building official reiterated his position that the structures were unsafe, BCO § 18–46, that it would be unreasonable to repair them, BCO § 18–59, and that therefore, demolition was required.

The pending appeal to the city council was resumed, and hearings were conducted in which the council received the reports of inspectors, contractors, engineers, and other experts, along with written repair estimates, PowerPoint presentations, testimony, and oral arguments. The building official and his experts opined that the total cost to bring the structures up to code was approximately $158,000. The city determined the cash value of the structures at approximately $85,000. One of plaintiffs' experts opined that it would cost less than $40,000 per house to make the necessary repairs and bring the structures up to code.

In Resolution 09–16, Decision on Appeal, the city council adopted the findings set forth in the building official's inspection reports, accepted his repair estimates and agreed with the oral testimony and PowerPoint presentations the building official introduced. The city council determined that plaintiffs' reports and cost estimates lacked credibility and that the structures had lost their status as nonconforming, single-family residential uses. The council concluded that the structures constituted “unsafe structures” under BCO § 18–46, that plaintiffs were in violation of BCO § 18–47 by owning and maintaining unsafe structures, and that the structures were unreasonable to repair and must be demolished under BCO § 18–59. The city councilordered plaintiffs to demolish the structures within 60 days.

Plaintiffs did not take any steps toward demolishing the structures within the 60–day period. Shortly before the 60–day period was set to expire, plaintiffs filed the instant action against the city, alleging, in a first amended complaint, a violation of procedural and 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 125.540.3 Plaintiffs' constitutional challenges were predicated on the United States Constitution, 42 U.S.C. § 1983, and the Michigan Constitution. After the complaint was filed, the city's building official, under the authority of BCO § 18–58, issued plaintiffs an order to show cause to appear before the city council where they would have the opportunity to present testimony and evidence as to why the structures should not be demolished. The order to show cause set forth an exhaustive list of defects and problems associated with the structures that rendered them “unsafe.” The city council conducted a show-cause hearing in which plaintiffs participated. The council rejected plaintiffs' position against demolition.4 Again, the show-cause proceedings occurred after the lawsuit was commenced.

The city subsequently filed its own complaint in a separate action, requesting injunctive relief in the form of an order enforcing BCO § 18–59 and requiring demolition of the structures. The trial court consolidated the cases. Plaint...

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