Moore v. City of Detroit
| Decision Date | 24 February 1986 |
| Docket Number | No. 76710,76710 |
| Citation | 146 Mich.App. 448,382 N.W.2d 482 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | Annie MOORE, et al., Plaintiffs-Appellees, v. CITY OF DETROIT, a municipal corporation, Creighton Lederer, in his official capacity as Director of the Department of Buildings and Safety Engineering, Defendants-Appellants, and The CITY COUNCIL FOR the CITY OF DETROIT, a duly constituted legislative political body, et al., Intervening Plaintiffs-Appellees, v. Creighton LEDERER, in his official capacity as Director of Department of Buildings and Safety Engineering for the City of Detroit, only, Defendant-Appellant. |
Emily C. Hall and Richard A. Soble, Detroit, for plaintiffs-appellees.
Donald Pailen, Corp. Counsel, Abigail Elias, Deputy Corp. Counsel, and Joseph N. Baltimore and Patricia Irving-Cwiek, Assts. Corp. Counsel, Detroit, for defendant-appellant.
Colista & Urso by F. Philip Colista and Constance J. Allen, Detroit, for the Detroit City Council.
Before BEASLEY, P.J., and KELLY and M. WARSHAWSKY *, JJ.
Defendants appeal as of right from an order of mandamus directing the City of Detroit and Creighton Lederer, in his capacity as director of the Department of Building Safety and Engineering for the City of Detroit, to implement Ordinance No. 556-H, enacted by the Detroit City Council on July 27, 1983, and entitled the Nuisance Abatement Ordinance. Following a review of the trial court record and briefs on appeal as well as applicable statutory, municipal and appellate case law, we affirm.
This case concerns the validity of an ordinance enacted by the Detroit City Council in July of 1983. Referred to by the media as "the homesteader's ordinance", Ord. 556-H was enacted as an amendment to the Detroit Building Code, at that time codified in Chapter 12 of the Detroit Municipal Code, now Chapter 9 of the Detroit City Code. Ord. 556-H creates a mechanism or procedure whereby private individuals are authorized by the city to enter, inhabit and rehabilitate abandoned homes prior to the city's formal acquisition of title. All parties agree that the ordinance Ord. 556-H is lengthy and detailed. A complete synopsis here is not undertaken but a general outline is necessary to an understanding of the issues involved. By its express terms, the ordinance is limited in application to abandoned single-family dwellings. Abandoned dwellings are those which are "vacant, dilapidated and open at the door or window, leaving the interior of the building exposed to the elements or accessible to entrance by trespassers", and on which there are outstanding and unpaid state, county or municipal property taxes. Ord. 556-H, 12-11-46.2(a). The dwelling must also be a nuisance, which means a dangerous building as defined in the city's building code, Detroit Ordinances, 12-11-28.2.
represents an innovative attempt to arrest the spread of urban blight caused by the abandonment of single-family homes and thus has significant impact on municipal planning.
Pursuant to Ord. 556-H, a private individual may, upon identifying a single-family dwelling which is believed to be an abandoned nuisance, file an application with the Department of Building Safety and Engineering for a "nuisance abatement contract", the purpose of which is to correct the conditions resulting in the nuisance. Upon receipt of the application, the Department must inspect the dwelling and determine whether it is capable of being rehabilitated and whether it qualifies as an abandoned nuisance as defined in the ordinance. If so, the Department must determine the assessed or current market value of the property, identify those repairs required to bring the building up to code and evaluate the cost of doing so. A notice of the Department's findings is sent to both the owner of record and the nuisance abatement applicant. Ord. 556-H, 12-11-46.3(b)-(e).
If the dwelling qualifies for the nuisance abatement program, the Department has 30 days to conduct a hearing before a departmental hearing officer. An order to show cause must be issued to the property owner of record and testimony must be presented at the hearing by the building inspector and city appraiser. Following the hearing, the officer enters his or her findings and recommendation for disposition of the property, with copies to the owner and applicant. If a nuisance abatement contract is recommended, the owner has 20 days to respond. At the expiration of the 20 days, the hearing officer files a copy of his or her findings and recommendation with the city council. Within 30 days after receipt of the hearing officer's recommendation, city council must conduct a hearing, upon notice to the owner and to the applicant, at which it approves, disapproves or modifies the officer's recommendation. If the city council determines that the dwelling should either be demolished or rehabilitated under a nuisance abatement contract, notice of the decision is served on the owner who is provided a specified period of time within which to respond. The city must then wait 20 days before entering into the contract with the nuisance abatement applicant. Ord. 556-H, 12-11-46.3(f)-(j).
A properly executed nuisance abatement contract is treated as a temporary permit under the building code and operates as a stay of all taxes due on the property for the duration of the 36-month contract period. The contract must specify the necessary repairs, estimate the reasonable value of labor, materials and services and provide for the periodic inspection of the dwelling by the Department. The value of the repairs becomes a lien on the property which must be satisfied as part of the owner's redemption costs. Ord. 556-H, 12-11-46.5. The ordinance also requires the city, whenever practicable, to institute actions to quiet title on property subject to a nuisance abatement contract for the purpose of passing title to the abatement contractor. Ord. 556-H, 12-11-46.6.
Ord. 556-H was to become effective on September 2, 1983. In August and in October of that year, Annie Moore, Johneece Lynn and Jeryl Davis appeared at the Department of Building Safety and Engineering and sought to apply for nuisance abatement contracts on dwellings which they On November 23, 1983, defendants filed their answer and a motion for accelerated and/or summary judgment under GCR 1963, 116.1(2) and 117.2(1). Defendants alleged that plaintiffs had failed to state a claim for which relief could be granted and that the trial court lacked subject matter jurisdiction on the ground that Ord. 556-H was invalid under the laws of this state.
identified as appropriate for the program. On both occasions plaintiffs were informed that the city did not have such a program and their applications were refused. On November 1, 1983, Moore, Lynn, the Association of Community Organizations for Reform Now (ACORN) and Hubbard Farms Community Group filed this complaint for mandamus in an effort to compel implementation of Ord. 556-H. Simultaneous to the filing of the complaint, plaintiffs sought and obtained an order for defendants to show cause why a writ should not issue and a hearing was scheduled for December 9, 1983.
At the hearing conducted on December 9, 1983, the trial court denied defendants' motion for dismissal and delayed ruling on the request for mandamus upon being informed by counsel that defendants and city council were close to settling on compromise amendments to the ordinance. On January 18, 1984, however, council unanimously passed a resolution stating that it had not considered and was not then considering any amendments to Ord. 556-H.
Following various hearings and interim orders, the trial court on May 16, 1984, entered a final judgment and order awarding mandamus as follows:
The court's order of February 1, 1984, had specifically ordered defendant Lederer to accept application forms from nuisance abatement applicants and to inspect the identified properties pursuant to Sec. 46.3(c) of Ord. 556-H.
On May 24, 1984, the trial court signed and entered an order granting city council's motion to intervene and appointed special corporation counsel for the city council.
Defendants preliminarily argue on appeal, as they did below, that a writ of mandamus is unavailable to plaintiffs because the duties sought to be enforced are created by an invalid ordinance and are therefore contrary to law. Plaintiffs respond that defenedants' attack on the validity of the ordinance is not a proper defense in a mandamus action and that if defendants wish to challenge the legality of the ordinance, the appropriate procedural course for them is to commence an action for declaratory judgment. Plaintiffs further argue that as long as the ordinance was enacted in good faith and is regular on its face and there is no pending petition for declaratory relief, the duty of the judiciary is to order defendants to implement its provisions.
Our review of the applicable case law persuades us that in Michigan, public officials may defend against a mandamus action by challenging the legality of the legislation creating the duty to act. There is no doubt that plaintiffs in a mandamus action may raise...
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