Geftos v. City of Lincoln Park

• Decision Date: 05 April 1972
• Docket Number: Docket No. 10014,No. 1,1
• Parties: Thomas P. GEFTOS, Plaintiff-Appellant, v. CITY OF LINCOLN PARK, a Michigan municipal corporation, and Rudoni Excavating Company, a Michigan corporation, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 169

198 N.W.2d 169

39 Mich.App. 644

Thomas P. GEFTOS, Plaintiff-Appellant, v. CITY OF LINCOLN PARK, a Michigan municipal corporation, and Rudoni Excavating Company, a Michigan corporation jointly and severally, Defendants-Appellees.

Docket No. 10014.

Court of Appeals of Michigan, Division No. 1.

April 5, 1972.

Released for Publication June 8, 1972.

Leave to Appeal Denied June 28, 1972.

Jerry P. D'Avanzo, D'Avanzo & Danko, Southgate, for plaintiff-appellant.

Robert E. Butcher, Lincoln Park, for defendants-appellees.

Before LESINSKI, C.J., and J. H. GILLIS and QUINN, JJ.

J. H. GILLIS, Judge.

Plaintiff appeals as of right from a judgment on a nonjury verdict of no cause of action on his complaint for damages caused by the demolition of his home by the defendants.

On July 26, 1965 (prior to the time plaintiff assumed ownership of the house in question), the Lincoln Park City Council declared said premises a nuisance and ordered its abatement or removal upon its vacation by the present occupants. On August 15, 1966, the Council renewed its determination (the premises having been vacated) and ordered the superintendent of the department of public services to remove or abate the nuisance should the owner fail to do so within 30 days. ¹ During August of 1966, plaintiff began negotiations with the former owner for the purchase of said property. Prior to the consummation of the sale, plaintiff became aware that the City had condemned the property as a nuisance and required its removal or abatement. Having been informed that the home could be repaired to meet the requirements of the building code, plaintiff proceeded on September 22, 1966, to acquire title to the premises. At plaintiff's request the Council held up the previously ordered demolition of the structure. Subsequently, plaintiff engaged in a great deal of correspondence with various City officials in attempting to discover what steps would be necessary to repair and update the premises. A number of repairs were actually made entailing the expenditure of various sums of money.

On February 6, 1967, plaintiff attended another City Council meeting (having appeared before said Council four times prior thereto) at which the building superintendent was in attendance. The Council, having been informed that the basic defects in the structure had neither been repaired nor were proposed to be repaired, thereupon passed a resolution renewing its determination declaring the home to be a nuisance and ordering its demolition on or after March 9, 1967, if the plaintiff had not abated or removed it by that time. ²

On March 10, 1967, defendant Rudoni, at the request and order of defendant City, entered upon the premises at 734 Park Street and demolished the home thereon, plaintiff and his wife being on a Florida vacation at the time. Thereafter, plaintiff was billed by the City of Lincoln Park for costs in the amount of $1,666.50.

Two main issues are presented on appeal: (1) whether or not the plaintiff was denied procedural due process when defendants demolished his home, and (2) whether defendants can assert 'sovereign immunity' thus being absolved from tort liability in this case.

Section 10--1--1 of the Lincoln Park Code incorporated by reference the housing code of the State of Michigan, M.C.L.A. § 125.401 et seq.; M.S.A. § 5.2771 et seq., as being in full force and effect in the City of Lincoln Park. M.C.L.A. § 125.502; M.S.A. § 5.2874 ³ delineates the procedure to be followed in demolishing houses as nuisances:

'Except as herein otherwise specified, the procedure for the prevention of violations of this act or for the vacation of premises unlawfully occupied, or for other abatement of nuisance in connection with a dwelling, shall be in accordance with the existing practice and procedure. In case any dwelling, building or structure is constructed, altered, converted or maintained in violation of any provision of this act or of any order or notice of the health officer or such other appropriate public official as the mayor may designate, or in case a nuisance exists in any such dwelling, building or structure or upon the lot on which it is situated, said health officer or such other appropriate public official as the mayor may designate, may institute any appropriate action or proceeding to prevent such unlawful construction, alteration, conversion or maintenance, to restrain, correct or abate such violation or nuisance, to prevent the occupation of said dwelling, building or structure, or to prevent any illegal act, conduct or business in or about such dwelling or lot. In any such action or proceeding said health officer may by a bill or petition duly verified, setting forth the facts, apply to the circuit court in chancery for the county, or to any judge thereof, for an order granting the relief for which said action or proceeding is brought, or for an order enjoining all persons from doing or permitting to be done any work in or about such dwelling, building, structure or lot, or from occupying or using the same for any purpose until the entry of final judgment or order. In case any notice or order issued by said health officer or such other appropriate public official as the mayor may designate, is not complied with, said health officer may apply to the circuit court or to any judge thereof for an order authorizing him to execute and carry out the provisions of said notice or order, to remove any violation specified in said notice or order, or to abate any nuisance in or about such dwelling, building or structure or the lot upon which it is situated. The court or any judge thereof is hereby authorized to make any order specified in this section. In no case shall the health department, health officer, or such other appropriate public official as the mayor may designate, or any officer or employe thereof, or the city, be liable for costs in any action or proceeding that may be commenced in pursuance of this act.

The actions, proceedings and authority of the health officer shall at all times be treated as prima facie just and legal.' (Emphasis supplied.) CL 1929, § 2590.

As exemplified in the first sentence of the quoted section a procedure other than the one set forth in § 102 (M.C.L.A. § 125.502; M.S.A. § 5.2874) may be used to demolish a home as a nuisance provided it is in accordance with 'existing practice and procedure.' Therefore, it was Not necessary for the City of Lincoln Park to obtain a judicial order either declaring plaintiff's house to be a nuisance or authorizing its demolition. Furthermore, § 8 of the State Housing Law, M.C.L.A. § 125.408; M.S.A. § 5.2778, provides in part:

'The provisions of the act shall be held to be the minimum requirements adopted for the protection of health, welfare and safety of the community. Nothing herein contained shall be deemed to invalidate existing ordinances or regulations of any city or organized village or the board of health of any such city or village imposing requirements higher than the minimum requirements laid down in this act relative to light, ventilation, sanitation, fire prevention, egress, occupancy, maintenance and uses for dwellings; nor be deemed to prevent any city or organized village or the board of health of any such city or village from enacting and putting in force from time to time ordinances and regulations imposing requirements higher than the minimum requirements laid down in this act; nor shall anything herein contained be deemed to prevent such cities and organized villages or the board of health of any such city or village from prescribing for the enforcement of such ordinances and regulations, remedies and penalties similar to those prescribed herein. And every such city and organized village or the board of health of any such city or village is empowered to enact such ordinances and regulations and to prescribe for their enforcement. No ordinance, regulation, ruling or decision of any municipal body, officer of authority of the board of health of any such city or village shall repeal, amend, modify or dispense with any of the said minimum requirements laid down in this act; * * *.' (Emphasis supplied.)

It seems to us that the Legislature, in enacting § 102, specifically recognized the powers which it had given to the cities and made provision for the abatement of a nuisance through the exercise of their respective powers. However, we conclude that in order for the City of Lincoln Park to legally demolish a house other than by proceeding under § 102 (M.C.L.A. § 125.502; M.S.A. § 5.2874), it is mandatory that it comply with 'existing practice and procedure'--meaning compliance with recognized procedural due process. Thus, defendant City could adopt higher minimum requirements but under no circumstances could it adopt lower standards or 'repeal, amend, modify or dispense with any of the said minimum requirements laid down in this act.'

Again and again, due process of law is interpreted as meaning the necessity for following the procedures of law. As noted by the Supreme Court of Pennsylvania in Hess v. Westerwick, 366 Pa. 90, 96--97, 76 A.2d 745, 748 (1950):

'It is a fundamental provision of both our state and federal constitutions that no person shall be deprived of property except by the law of the land or due process of law. Without due process of law the right of private property cannot be said to exist. As said by Mr. Justice Pitney in Ochoa v. Hernandez Y. Morales, 1912, 230 U.S. 139, 161, 33 S.Ct. 1033, 1041, 57 L.Ed. 1427, 'The principle, known to the common law before Magna Charta, was embodied in that Charter (2 Coke, Inst. 45, 50), and has been recognized since the Revolution as among the safest foundations of our institutions. Whatever else may be uncertain about the definition of the term 'due process of law,' all authorities agree that it inhibits the taking of one man's property and giving it to another, contrary to settled usages and modes of...