Ypsilanti Charter Tp. v. Kircher

• Decision Date: 09 October 2008
• Docket Number: Docket No. 277922.
• Citation: 761 N.W.2d 761,281 Mich. App. 251
• Parties: YPSILANTI CHARTER TOWNSHIP v. KIRCHER.
• Court: Court of Appeal of Michigan — District of US

761 N.W.2d 761

281 Mich. App. 251

YPSILANTI CHARTER TOWNSHIP v. KIRCHER.

Docket No. 277922.

Court of Appeals of Michigan.

Submitted September 9, 2008, at Lansing.

Decided October 9, 2008, at 9:00 a.m.

McLain & Winters (by Dennis O. McLain and Angela B. King) for Ypsilanti Charter Township.

George E. Ward for David Kircher.

Roberts and Freatman (by Ellis B. Freatman, III) for Robert Barnes.

Before: MARK CAVANAGH, P.J., and JANSEN and KELLY, JJ.

JANSEN, J.

Defendant, David Kircher, appeals by right the circuit court's order confirming the judicial sale of his property, commonly known as the Eastern Highlands apartment complex (Eastern Highlands), to receiver Robert Barnes.¹ Defendant contends that the circuit court erred by granting the receiver a lien against Eastern Highlands, by allowing the receiver to foreclose that lien, and by confirming the subsequent judicial sale of Eastern Highlands to the receiver. In addition, defendant contends (1) that the circuit court erred by determining in the first instance that there were nuisances in need of abatement at Eastern Highlands, (2) that the circuit court unconstitutionally seized his private property without just compensation, (3) that the circuit court erred by appointing a receiver to abate the alleged nuisances, (4) that even if the receiver's appointment was proper, the circuit court nonetheless erred by approving several excessive and unnecessary expenditures by the receiver, (5) that the circuit court erred by granting attorney fees for plaintiff, and (6) that defendant's continued dispossession after the termination of the receivership constituted an additional unconstitutional taking of private property. We affirm in part, vacate in part, and remand this matter for further proceedings consistent with this opinion.

I

On or about October 13, 2004, Washtenaw County authorities discovered that there had been a sewage backup at Eastern Highlands and that defendant or his agents were pumping raw sewage from a containment area into a storm drain or catch basin that eventually led to the Huron River. After being contacted by the authorities, plaintiff sent its building director and plumbing inspector to Eastern Highlands on October 14, 2004. Plaintiff's officials informed defendant that his sewage-pumping operation was illegal, but it does not appear that defendant immediately stopped the pumping.

Plaintiff filed a complaint and emergency petition on October 15, 2004, seeking a temporary restraining order to enjoin defendant from pumping the sewage and requesting an order to show cause why Eastern Highlands should not be condemned and declared a public nuisance. With the complaint, plaintiff filed the affidavit of its building director, Ronald Fulton, in which Fulton averred that irreparable harm would result if the court did not enjoin defendant's sewage-pumping operation. Later that day, the circuit court entered an ex parte temporary restraining order, enjoining defendant from pumping raw sewage and permitting plaintiff to enter the premises and abate any immediate dangers.

In response to the temporary restraining order, defendant shut off all water service to the tenants of Eastern Highlands. Plaintiff therefore filed an emergency motion seeking an ex parte order requiring defendant to restore water service to his tenants. On October 16, 2004, the circuit court entered an ex parte order requiring defendant to immediately restore water service to the tenants of Eastern Highlands and permitting plaintiff to abate any additional dangers that might arise "in the event the restoration of water service ... results in the threat of new sewage discharge...." A hearing was set for October 20, 2004.

At the October 20, 2004, hearing, several witnesses testified concerning the nature, extent, and severity of defendant's sewage discharge. Defendant admitted that he had been aware that his employees were pumping raw sewage into a storm drain or catch basin and acknowledged that he was the sole owner of Eastern Highlands. Upon conclusion of the hearing, the court ruled:

[T]he conduct of Defendants David Kircher and Eastern Highlands in failing to provide adequate sanitary sewage discharge facilities and discharging raw sewage into a storm drain, located on or near its property, which storm drain empties into the Huron River, constitutes an immediate clear and present danger to the health, safety, and welfare, of not only the residents of Defendants' apartments, but to the public at large.

The circuit court declared Eastern Highlands a public nuisance and directed plaintiff to take all reasonable steps to abate the nuisance caused by the sewage backup and defendant's sewage-pumping operation. Among other things, the court permitted plaintiff to inspect "all common areas, storage rooms, maintenance rooms, power plants, unoccupied apartment units, and occupied units with permission of [the] occupants, for contamination," to oversee "the immediate cleanup of any and all unsanitary conditions," to evacuate any areas or units in which "the contamination constitutes an immediate health hazard to the occupants," and to "prohibit further occupancy of the [a]ffected units or buildings until the health hazard has been removed." The court ordered defendant "to pay Plaintiff its costs and attorney's fees ... incurred in bringing and enforcing this matter, subject to Court review of the reasonableness thereof" and noted that it would "[c]onsider ordering the appointment of a receiver for the property" if defendant did not comply with the terms of the order.²

On October 26, 2004, plaintiff filed an amended complaint, adding a count entitled "Public Nuisance, Fire, and Property Maintenance Code Violations." Plaintiff alleged that a fire had occurred in Building M at Eastern Highlands on October 22, 2004, and that firefighters had discovered several fire code violations at the premises, including the absence of smoke detectors and fire extinguishers and the absence of an operational fire hydrant on the premises. Plaintiff also alleged that its officials had inspected Eastern Highlands and had discovered numerous property maintenance code violations in several of the buildings and the common areas. Among other things, these alleged property maintenance code violations included inoperable doors, improper or broken doorjambs, inoperable thermostats, walls that were not caulked and that had separated from the abutting structure, leaking faucets, a bathtub that was not properly caulked, toilets that were broken or not properly attached to the floor, many doors and windows that were not weathertight, an improperly installed heater cover, holes in the drywall, a loose window that posed a danger of falling, trash and garbage strewn throughout the hallways, deteriorated roof shingles, missing roof flashing, numerous missing doors and windows, the presence of rodents and insect pests, defective stairways and handrails, inoperable locks, unsafe sidewalks and parking areas, exposed electrical wiring, disconnected vents in the laundry room, and washing machines that drained onto the floor.

Plaintiff set forth specific citations of its property maintenance code for each of these alleged violations. Plaintiff also attached a diagram showing the exact location of each of the alleged violations. Plaintiff requested that the circuit court (1) "[d]eclare the subject property a public nuisance" because of violations of the Ypsilanti Charter Township fire code and property maintenance code, (2) "[o]rder the nuisance abated," (3) order the immediate installation of smoke detectors and fire extinguishers, (4) grant plaintiff the authority to enter and reinspect all interior and exterior areas of Eastern Highlands to ensure compliance with the applicable fire and property maintenance codes, (5) order defendant to pay plaintiff "all costs and attorney's fees incurred by [plaintiff] in the enforcement" of the fire and property maintenance codes, and (6) "in the event Defendants fail or refuse to pay such costs, allow [plaintiff] a Judicial Lien in the full amount of its expenses incurred, plus interest, which Judicial Lien may be filed with the Washtenaw County Register of Deeds and be foreclosed...."

The same day, the circuit court entered an order directing defendant to appear at a hearing to show cause why the court "should not enter an Order declaring the property ... [a] public nuisance" for the reasons stated in plaintiff's amended complaint. At the hearing, plaintiff's counsel presented a prepared order and remarked that he and defendant had agreed to its terms. Defendant agreed with the language of the proposed order as it related to the alleged fire code violations and acknowledged that the fire code applied equally to the occupied and unoccupied apartment units at Eastern Highlands. Defendant also indicated that he "would have no problem" with the portion of the proposed order that dealt with violations of the property maintenance code "as long as it refers to occupied units...." Defendant apparently did not believe that the property maintenance code applied to unoccupied units and indicated that he was "not sure that the Property Maintenance Code requires all units in every building ... to be ready for occupancy at all times even if [the units are] not for rent." He again conceded, however, that the fire code applied to occupied and unoccupied units alike, and also acknowledged that he had "no problem" with the proposed order as it related to "major violations" that affect the safety and integrity of the structure. Defendant indicated that he would agree to the proposed order as long as he could retain the right to object in the future to any of the alleged property maintenance code violations. Plaintiff's counsel agreed to this.

Following the hearing, the circuit court issued the proposed order, which was entitled "Order to Abate Nuisance." The order declared Eastern Highlands...