City of Madison Heights v. Gary a Sayers ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CITY OF MADISON HEIGHTS, UNPUBLISHED
November 9, 2021
Plaintiff-Appellee,
v No. 354330
Oakland Circuit Court
GARY A. SAYERS, ELECTRO-PLATING LC No. 2018-169728-CZ
SERVICES, INC., SAYERS VENTURES LIMITED
PARTNERSHIP, SAYERS ENTERPRISES, LLC,
SAYERS ENTERPRISES III, LLC, and JOHN
DOE,
Defendants-Appellants.
Before: GLEICHER, P.J., and K. F. KELLY and RONAYNE KRAUSE, JJ.
PER CURIAM.
The city of Madison Heights sued Gary A. Sayers and his various companies to abate the
nuisance caused by his dilapidated industrial buildings, housing thousands of corroding barrels of
toxic, flammable, and explosive chemicals. One building contained a large earthen pit filled with
green ooze—the highly toxic and carcinogenic hexavalent chromium—that eventually leaked
through the ground onto nearby I-696. The parties accepted a case evaluation award for the city
on its damages claims, and the city’s nuisance-abatement claim was decided in its favor after trial.
Sayers contends that the court could not exempt the equitable nuisance-abatement claim
from the case-evaluation process. However, the court issued its ruling before either side accepted
or rejected the evaluation, leaving this decision within the court’s discretion. Sayers also
challenges the trial court’s factual findings after the bench trial on the nuisance-abatement claim,
and the court’s order to remedy the public nuisance through demolition of the subject buildings.
We discern no error in these regards. We affirm.
I. BACKGROUND
This case involves three buildings located at 901, 925, 945, and 959 E. Ten Mile Road in
Madison Heights, all owned by Gary Sayers and his companies. A fourth building, located at 937
E. Ten Mile Road, had already been condemned and demolished by the time this action was filed.
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The buildings were used as a factory where metal was “plated” for industrial uses. In May 2016,
the city fire marshal investigated the properties and observed a large amount of debris that he
described as “hoarding.” Inside Building 945/959 were thousands of containers holding hazardous
waste. Some of the containers were open, some were leaking, some were severely corroded, and
some were unlabeled. Further, some were placed next to combustible materials such as gasoline
and acetylene tanks. The fire marshal further noted copious amounts of debris, blocking exits and
making it difficult to walk through the buildings. The roofs and floors were caving in, support
beams were heavily corroded and deteriorating, and stairwells had come loose. In the basement
of Building 945/959, the fire marshal found an earthen pit dug into the ground. The pit was not
lined with cement or any other protective coating, was filled with green ooze, and was located
directly beneath the vats and containers on the plating level. The fire marshal surmised that any
overflow from the plating lines travelled into the pit, which acted as a catch basin.
The fire marshal issued Sayers an extensive list of fire-code violations. He contacted the
Michigan Department of Environmental Quality (MDEQ), which has since been renamed the
Michigan Department of Environment, Great Lakes, and Energy (EGLE), and the Madison
Heights Building Department. The MDEQ had already issued Sayers numerous warnings between
2004 and 2008, and Sayers had signed a consent order to remedy many hazardous conditions, none
of which he had accomplished. In June 2016, the MDEQ issued a new notice with a laundry list
of violations. Sayers did not respond, and during a follow-up inspection in November 2016, Sayers
admitted that he had done nothing to remedy the described dangerous conditions. The MDEQ
issued a new violation warning in December 2016. Sayers responded, but did not address all the
cited violations and provided no documentation to support that any condition had been remedied.
Believing the situation posed an imminent and substantial risk to public health, the MDEQ
contacted the Department of Health and Human Services (DHHS). The DHHS agreed, and on
December 21, 2016, the MDEQ issued a cease and desist order for the plating operation at the
property.
State officials asked the federal Environmental Protection Agency (EPA) to intervene.
Jeffrey Lippert, the EPA’s on-scene coordinator, first assessed Building 945/959 on December 30,
2016. Lippert had never observed a site in such deplorable condition: clutter, drums, and
containers were everywhere; acid had eaten through an I-beam in the basement; vats were filthy,
overflowing, leaking, and severely corroded; there was a pit filled with green liquid, drums cut in
half with unknown material inside, holes in the floor, staircases “propped up” against other floors,
and entirely missing floor sections. Rudimentary plank bridges spanned gaps in the floor. Lippert
determined that a time-critical removal was needed, and his supervisors agreed.
Removal activities spanned April through December 2017. Every container was
inventoried and sampled. The waste removed included 369,000 pounds of cyanide, 34,800 pounds
of solid waste, and 320,700 pounds of liquid waste. The green liquid in the earthen pit was
identified and quantified as 14,315 gallons of hexavalent chromium. A hidden second pit was also
discovered. This concrete pit contained liquid cyanide and sludge. After the materials were
removed from both pits, the earthen pit was filled with crushed concrete. Samples taken along the
northern edge of Building 945/959 revealed that the soil was a purplish, brownish color and was
contaminated with hexavalent chromium.
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On December 20, 2019, a major news story broke—bright green ooze was found on the
shoulder of I-696, directly behind the north edge of Building 945/959. The ooze contained
hexavalent chromium, trichloroethylene, cyanide, and other metals. All of these substances are
dangerous to humans. The EGLE immediately responded. A primary concern was that this fluid
would flow into the storm drains along the expressway. These drains do not go through sewage
treatment plants, but instead move water and debris directly into streams and lakes. To help abate
the discharge from Building 945/959 onto the freeway, the ELGE installed sump pumps in the
earthen pit and on the freeway embankment. Groundwater tests still produced concerning results,
so a 40-to-60-foot-long “interceptor trench” was installed along the I-696 service drive, along with
a 20-by-20-foot “interceptor pit.” Soil sampling around the perimeter of Building 945/959 also
preliminarily indicated that the soil was contaminated.1
Tracy Kecskemeti, an EGLE district supervisor, testified that to properly address the
contamination, its actual source to be removed—the soil under Building 945/959. The only way
to accomplish that goal was to first remove the building. Otherwise, the pumping of groundwater
would have to continue “forever.” Another EGLE manager, Alexandra Clark, reiterated that the
pumps, interceptor trench, and pit were not long-term solutions. Rather, the land had to be
remediated, which necessitated the removal of Building 945/959.
Concerned about the danger to its citizens and their property, the city of Madison Heights
filed the instant action, alleging two counts in its amended complaint: (1) nuisance requiring
abatement, and (2) damage to the land and the city’s sanitary sewer main. Sayers filed a
counterclaim, raising three counts: (1) taking of property without just compensation, (2)
deprivation of constitutional rights, and (3) declaratory relief.
The matter proceeded to case evaluation and a panel evaluated the city’s claims at
$225,000. Before either party filed an acceptance or rejection, the city filed a motion with the trial
court seeking clarification that the case-evaluation award pertained only to its claim for damages
and did not affect the equitable action of nuisance-abatement. Over Sayers’s objections, the court
ruled that the case evaluation did not dispose of the city’s equitable claims. Thus, mutual
acceptance of the award would not dispose of the equitable claim. The parties subsequently each
accepted the award, and the court entered a damages judgment of $225,000 in the city’s favor.
The judgment specifically indicated that it was not a final judgment as the nuisance-abatement
claim remained pending. Sayers renewed his objection on behalf of himself and his corporations,
asserting that the mutual acceptance of the case-evaluation award resolved the nuisance-abatement
claim as well as the damages claim, and thereby ended the case. The court rejected this argument
and the judgment remained in place.
The remaining nuisance-abatement claim proceeded to a lengthy bench trial. At the
conclusion of the trial, the court determined that Building 945/959 and two portions of Building
1
The EPA drilled 25 soil borings around all four sides of Building 945/959 and installed
groundwater monitoring wells. The results had not been “fully interpreted” at the time of trial,
“but they certainly show[ed] contaminants on all sides of the building.” The EPA planned to repeat
the testing with the testing ring set farther away from the building. This process would continue
until no more contamination was detected.
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901 were public nuisances that had to be demolished. The court further enjoined the use or
occupation of the remaining portion of Building 901 and Building 925 until they were brought up
to applicable local codes. However, the court included two “caveats” in its judgment: (1) if future
analysis revealed that the ground around and under Buildings 925 and the remaining portion of
Building 901 were contaminated and that remediation could not be accomplished without
demolition, then those buildings would be deemed public nuisances and removed; and (2) if the
two condemned portions of Building 901 could not be demolished in a manner that would allow
the third portion of the building to survive on its own, then the entirety of Building 901 would be
demolished.
II. EFFECT OF CASE EVALUATION ACCEPTANCE
Sayers and his corporations continue to complain that the parties’ mutual acceptance of the
case-evaluation award resolved not only the issue of damages, but also the issue of nuisance
abatement. The resolution of this issue depends on the proper interpretation of the court rule
governing case evaluation—MCR 2.403. The proper construction and application of court rules
is a question of law that we review de novo. Magdich & Assocs, PC v Novi Dev Assocs LLC, 305
Mich App 272, 275; 851 NW2d 585 (2014). We employ statutory construction principles to
interpret court rules. Id. We must apply the rule’s plain and unambiguous language as written.
CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 554; 640 NW2d 256 (2002), quoting
Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000).
MCR 2.403 governs case evaluation, and provides, in relevant part:
(A) Scope and Applicability of Rule.
(1) A court may submit to case evaluation any civil action in which the relief
sought is primarily money damages or division of property.
* * *
(3) A court may exempt claims seeking equitable relief from case evaluation
for good cause shown on motion or by stipulation of the parties if the court finds
that case evaluation of such claims would be inappropriate.
* * *
(K) Decision.
* * *
(3) The evaluation may not include a separate award on any claim for
equitable relief, but the panel may consider such claims in determining the amount
of an award.
* * *
(M) Effect of Acceptance of Evaluation.
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(1) If all the parties accept the panel’s evaluation, judgment will be entered
in accordance with the evaluation, unless the amount of the award is paid within 28
days after notification of the acceptances, in which case the court shall dismiss the
action with prejudice. The judgment or dismissal shall be deemed to dispose of all
claims in the action and includes all fees, costs, and interest to the date it is
entered . . . .
The general “purpose of MCR 2.403 is to expedite and simplify the final settlement of
cases to avoid a trial,” and acceptance of case evaluation “serves as a final adjudication . . . and is
therefore binding on the parties similar to a consent judgment or settlement agreement.” Magdich,
305 Mich App at 276 (ellipsis in original), quoting Larson v Auto-Owners Ins Co, 194 Mich App
329, 332; 486 NW2d 128 (1992). It is important to note that nuisance-abatement claims are
equitable in nature. Ypsilanti Twp v Kircher, 281 Mich App 251, 270; 761 NW2d 761 (2008).
The city delayed in filing its motion to exempt the nuisance-abatement claim from the case-
evaluation process until the evaluation had already been made. However, neither party had yet
accepted or rejected the evaluation and therefore the court still had discretion to consider this
motion. Compare CAM Constr, 465 Mich at 551-552 (in which a party waited until after both
parties had accepted the case-evaluation award to argue that certain claims were excluded from
the process). And as permitted by MCR 2.403(A)(3), on good cause shown, the court exempted
from the case-evaluation process the equitable nuisance-abatement claim. When the parties
subsequently accepted the case-evaluation award, the acceptance applied only to the damages
claim. The judgment of dismissal also only applied to the damages claim, the only claim then
before the case-evaluation panel. See MCR 2.403(M)(1). Sayers does not contend that the court
lacked good cause to exempt the nuisance-abatement claim and is not entitled to relief.2
III. PUBLIC NUISANCE RULING
Sayers next challenges the trial court’s conclusion that the conditions on his properties
constituted public nuisances. As nuisance-abatement proceedings are equitable in nature, we
review the court’s ultimate decision de novo, but review its factual findings for clear error. Capitol
Props Group, LLC v 1247 Ctr Street, LLC, 283 Mich App 422, 430; 770 NW2d 105 (2009).
A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been
made. We overstep our review function if we substitute our judgment for that of
the trial court and make independent findings. [People v Barbarich, 291 Mich App
468, 472; 807 NW2d 56 (2011) (quotation marks and citations omitted).]
Stated differently, “[c]lear error signifies a decision that strikes us as more than just maybe or
probably wrong.” In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009).
2
If applicable, we encourage case evaluators to specifically note on case evaluation forms that any
equitable claims were not subjected to case evaluation. This “best practice” would have avoided
the case evaluation controversy before us today.
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The city brought a common-law public nuisance action.
A public nuisance is an unreasonable interference with a common right
enjoyed by the general public. The term “unreasonable interference” includes
conduct that (1) significantly interferes with the public’s health, safety, peace,
comfort or convenience, (2) is proscribed by law, or (3) is known or should have
been known by the actor to be of a continuing nature that produces a permanent or
long lasting, significant effect on these rights. [Cloverleaf Car Co v Phillips
Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995).]
We discern no error in the trial court’s findings that all of Sayers’ buildings presented
current or possibly impending public nuisances. Abundant evidence supported that Building
945/959 significantly interfered with public health and safety. The earthen pit filled with
hexavalent chromium was found in the basement of this building. Experts testified that the only
way to safely and permanently remove the highly contaminated soil from under and around this
building was to completely remove the building. While waiting for a decision regarding the
removal of the building, several toxic and carcinogenic chemicals seeped through the ground and
onto I-696, where these highly dangerous materials could be washed away into streams and lakes
through stormwater drains. Several extensive remediation efforts were made in the meantime, but
the danger persisted. Regardless of any other condition in Building 945/959, the leakage of these
dangerous chemicals “significantly interfere[d] with the public’s health” and “safety,” rendering
it a public nuisance that required abatement.
Building 901 was harder for the court to assess as it was divided into three sections and
one section could, at that point, be remediated and used. Sayers challenges the treatment of the
building as three distinct pieces. However, the city’s expert structural engineer testified that the
building had three different roof structures that separated the building into three distinct portions.
Further, an aerial view clearly shows that the three sections have separate and identifiable
“footprints.” Although 901 was recorded as a single address, the safety of the structure had to be
considered piecemeal.
And the evidence sufficed to find that two of the three Building 901 sections were currently
public nuisances that required abatement. The court found the city’s structural expert more
credible than Sayers’s, an assessment with which we may not interfere. See MCR 2.613(C);
Fletcher v Fletcher, 229 Mich App 19, 24; 581 NW2d 11 (1998). The city’s expert noted that the
structure of building section 901C was extremely unstable, such that it could fall down in heavy
winds. He opined that the building’s foundation was not sufficiently buried and was likely to shift
and lose strength when the ground froze. Moreover, significant portions of 901C’s roof was
missing and the heating system did not work. The city’s expert stated that he had the same
foundation concerns for the building section labeled 901A. The high probability that these
building sections could collapse without notice posed a serious threat of danger to public safety
and the court did not err in ordering their demolition to abate the nuisance.
The experts opined that it was possible that portion 901B could be saved and continue to
be used. The city’s expert noted some cracks in the wall and floor of 901B, but the roof deck and
steel joists were still in good condition. However, we discern no error in the court’s determination
that dangers likely could arise during the demolition of portions 901A and 901C necessitating the
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demolition of 901B as well. There already existed structural damage presenting a danger of
collapse with tremors and shifting of nearby demolition. The court could have more specifically
stated that 901B could become a public nuisance during demolition of 901A and 901C. But there
is no need to return this issue to the trial court simply to more artfully rework the language of its
judgment. The court’s intention and factual conclusions are clear given the context.
We also discern no error in the court’s finding that Building 901B and Building 925 could
be deemed public nuisances in the near future as ground contamination tests continued. The
experts testified that ground contamination samples would continue for years into the future in an
ever-expanding ring extending from Building 945/959. That testing would reveal how far the toxic
ground saturation spread. The fact that the soil was contaminated under Building 945/959 sufficed
to require removal of those buildings. Should the toxic chemicals seep into the soil under Building
901B or Building 925, removal of that building would be required to safely and completely abate
the nuisance as well. The court’s order was directly supported by evidence that the radius of the
ground contamination was still growing and the size of the public nuisance would continue to grow
along with it. This evidence was not speculative or conjectural; it was based on current
observations of the spreading danger. “ ‘[A]n injunction may issue to prevent a threatened or
anticipated nuisance which will necessarily result from the contemplated act, where the nuisance
is a practically certain or strongly probable result or a natural or inevitable consequence.’ ”
Keiswetter v Petoskey, 124 Mich App 590, 599; 335 NW2d 94 (1983), quoting Falkner v
Brookfield, 368 Mich. 17, 23; 117 NW2d 125 (1962). Given the record evidence of a real danger,
we have no ground to interfere with the trial court’s factual findings.
IV. ORDER OF DEMOLITION
Finally, Sayers challenges the trial court’s selected remedy for abating the nuisance,
specifically ordering demolition of Building 945/959 and the 901A and 901C portions of Building
901. “It is firmly established that nuisance abatement, as a means to promoting public health,
safety, and welfare, is a legitimate exercise of police power and that demolition is a permissible
method of achieving that end.” Bonner v City of Brighton, 495 Mich 209, 229; 848 NW2d 380
(2014).
As noted in the previous section, abundant evidence supported that demolition of these
buildings was necessary to protect the public health and safety. Experts testified that the soil
underneath Building 945/959 was so contaminated that the groundwater would need to be pumped
out for proper disposal indefinitely or the building had to be demolished so the soil could be safely
and completely removed. Sayers contends that he should have been given the option to remedy
the problem at his own expense. However, Sayers has been given such options since 2004, and he
has never undertaken the work. Given his history of lawbreaking and noncompliance, ordering
Sayers to take remediation efforts before bringing Building 945/959 up to code would not protect
the public health and safety.
The court also did not err in ordering the demolition of 901A and 901C. Structural
engineers inspected these buildings and found the foundations and structural supports so damaged
that they could collapse at any time. Evidence established that government officials had notified
Sayers of these issues several times since 1996, and he did nothing to rectify the conditions. He
even failed to make remediation efforts after entering a consent order with the MDEQ. Evidence
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of Sayers’s complete disregard for government authority and his own agreements more than
sufficed to support that a remedy short of demolition would have no impact. Sayers is not entitled
to relief from the demolition orders issued by the court.
We affirm. The city of Madison Heights, as the prevailing party, may tax costs pursuant
to MCR 7.219(A).
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Amy Ronayne Krause
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