Orion Charter Tp. v. Burnac Corp., Docket Nos. 104987

• Decision Date: 10 November 1988
• Docket Number: 105542,Docket Nos. 104987
• Citation: 171 Mich.App. 450,431 N.W.2d 225
• Parties: ORION CHARTER TOWNSHIP, Plaintiff, v. BURNAC CORPORATION, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 225

431 N.W.2d 225

171 Mich.App. 450

ORION CHARTER TOWNSHIP, Plaintiff, v. BURNAC CORPORATION, Defendants.

Docket Nos. 104987, 105542.

Court of Appeals of Michigan.

Submitted June 20, 1988.

Decided Sept. 8, 1988.

Released for Publication Nov. 10, 1988.

Eric J. McCann, P.C. by Eric J. McCann, Bloomfield Hills, for plaintiff Charter Tp. of Orion.

Honigman, Miller, Schwartz & Cohn by Norman C. Ankers, Detroit, for Burnac Corp.

Before CYNAR, P.J., and SULLIVAN and ERNST, ^* JJ.

PER CURIAM.

Defendants-appellants, Burnac Corporation and Appeal Investments Limited, appeal as of right the December 3, 1987, order of Oakland Circuit Judge Hilda R. Gage permitting demolition of the Indianwood Condominiums Complex, located in Lake Orion, Michigan. We affirm.

Construction of the complex began sometime in 1973 or 1974. After 2 or 2 1/2 years of work, all construction ceased. No more work has followed to the date of trial (August 31, 1987). Plaintiff attempted to have the then-owners complete the project. Two consent agreements were entered into with respect to the completion of the buildings. Neither of the consent agreements have been honored.

As a result of no progress on the completion of the complex, the township filed suit in August, 1979, seeking to demolish the complex as a means of abating a nuisance. On January 20, 1982, the circuit court ordered that the structures be demolished. This Court affirmed. Orion Twp. v. Preferred Realty Co., Inc., unpublished opinion per curiam of the Court of Appeals, decided October 3, 1984 (Docket No. 68182), lv. den. 422 Mich. 979, 374 N.W.2d 262 (1985), reconsideration den. January 15, 1986.

Subsequently, appellants filed suit in federal district court in 1985, seeking a declaratory judgment that they were denied due process in the state court proceedings because appellants had not been named in the state suit. Apparently, Appeal Investments had assumed ownership of the complex by foreclosing on the mortgage from the previous owners, Low Burn Incorporated. Appeal Investments then merged with Burnac. The federal district court granted summary judgment in favor of appellants finding that they had been denied due process of law by lack of notice and an opportunity to be heard. The district court also permanently enjoined enforcement of the 1982 demolition order until appellants were accorded due process. In addition, the parties in the federal court action stipulated to the dismissal of all claims and counterclaims without prejudice. An order to that effect was entered on December 17, 1986.

The instant case went to trial on August 31, 1987, before Judge Gage. The first witness on behalf of plaintiff was the township supervisor, Joanne VanTassel. In her opinion, the five buildings were in worse shape at that time than they had been in 1979. She visited the site in June, 1987, and noticed that the site was not enclosed on all sides by a fence and was open to trespassers. She saw evidence of vandalism, including damaged walls, fixtures that have been removed, markings on the walls and broken glass. Numerous complaints have been lodged by nearby residents and adjoining landowners. Although the land values in the township have generally increased since the late 1970s, the property assessment of the complex has not changed. The deteriorating buildings of the complex have adversely affected the township and held the township up to public ridicule in the newspapers.

Glen Bartoni, the township's building official, testified that there was no current building permit for the complex. Bartoni had sent appellants a notice of unsafe structures on April 8, 1987. Bartoni had inspected the site several times and he was especially concerned about the unfinished buildings that were really open basements full of debris and the other buildings that had broken basement windows. He did not believe that the buildings were salvageable because the foundations were deteriorating.

Bartoni described building one as ninety-five percent complete, but the beam supporting the roof was beginning to fail because of rotting. In addition, the building lacked proper flashing, which had damaged the dry wall because water was seeping in. There was evidence of vandalism. The fence on the south side of the complex was down and there were other openings in the fence. Many windows were broken and broken glass was strewn about.

The final witness for the township was John Hughdock, a licensed residential builder and building inspector. At that time, he was employed as a building inspector for the Cities of Bloomfield Hills, Huntington Woods and Pleasant Ridge. On June 17, 1987, he visited the complex and inspected the construction of the condominiums. He described building one as ninety to ninety-five percent complete. The building had a problem with flashing on the roof since there was evidence of water leaking into the structure. He found clothes laying around, empty wine bottles, graffiti on the walls, and evidence of vandalism: to wit, missing cabinets, a missing water heater and ripped out pipes.

Buildings three and four were only basement walls with plywood decks on top. The decks were "shot" because of the accumulation of snow and ice for several years. There were cracks in the foundation walls, dirt floors and Hughdock believed that the buildings were not usable in their current condition. He opined that it would be cheaper to start over.

Buildings two and five were in the rough construction stage, with a roof on five and the exteriors of both enclosed. The first floor in five had rotted along with some of the headers (beams over and around the doors and windows). There were cracks in the basement walls. Building five would have to be torn down. Building two was described as having cracks in the foundation, windows and basement walls. The roof of two was sagging and the floors were spongy so that a person could fall through. On cross-examination, Hughdock admitted that he only visually inspected the buildings and that building one was not in any danger of collapse.

Appellants presented three witnesses in defense. Fernando Souto, a civil engineer whose specialty was soil and foundation engineering, investigated the foundation walls of the complex and took core samples from the walls.

Souto stated that there were other ways short of demolition that could render the buildings suitable and safe for their intended use. He testified that building one was not in imminent danger of collapse. The cracks in the foundation were not structurally serious and could be filled in with epoxy injections.

Building two was also not in imminent danger of collapse. If the settlement of the foundations was not moving, the cracks could be repaired by use of grout to seal them and epoxy injections, along with installation of foundation subdrains. Building three's foundations were not in imminent danger of collapse, but portions of one of the foundation walls and one of the great beams would have to be removed and replaced. Building four was also not in imminent danger of collapse and the existing foundation cracks could be sealed with grout and epoxy. Building five had suffered the most damage. The basement walls would need to be supported with temporary shoring.

On cross-examination, Souto admitted that there was a potential for collapse especially in buildings two and five. Buildings three and four had unsafe floors to walk on. Trees were growing in building four.

Dr. Isaac Sheppard, Jr., a professional engineer, testified that he inspected the complex three times over the past two to three years prior to trial. Building one was not in imminent danger of collapsing within a month, but he could not say if it would collapse within six months. A variety of cosmetic repairs were needed on building one. Building two's framing was rotted and needed to be done in a workmanlike manner. The floors in buildings three and four needed to be removed and replaced. In building five, the laminated plywood should be removed and replaced along with the rotted joists and studs. Sheppard did not think that general demolition was necessary. On cross-examination, he stated that the covering over the basements was not safe to walk on and a person had a reasonable chance of falling through.

The final defense witness was Frank Presto, a self-employed licensed builder. Presto was in charge of safekeeping the site for defendants. He had repaired the fence and put holes in the walls of one of the buildings to repair the plumbing. On cross-examination, Presto admitted that he did not know if some parts of the fence were up. At this point, the defense rested.

After visiting the site, the trial judge issued her opinion on September 29, 1987. The crux of her opinion stated:

"Therefore, this Court orders that the plaintiff, CHARTER TOWNSHIP OF ORION, may demolish the condominiums at the expense of the defendants unless the defendants do the following:

"1. The defendants shall immediately post at least one security guard on the premises 24 hours per day, seven days a week. A security guard shall continue on the premises until further order of this Court.

"2. The defendants shall immediately commence enclosing the buildings by a continuous chain link fence, which fence must be completed within 14 days from the date this opinion is issued.

"3. Within 63 days from the date of this opinion is issued, the defendants shall complete the following repairs:

"A. The basements for buildings 3 and 4 shall be filled in with dirt, sand or gravel;

"B. All broken windows in buildings 1, 2 and 5 shall be repaired and locked, or shall be securely boarded over;

"C. All exterior doors, sliding doors and garage doors shall be repaired and locked, or shall be securely boarded over;

"D. All incompleted window openings, exterior doorways, sliding doorways and garage doorways shall be completed and locked, or shall be securely boarded over;

"E. Any...