DocketNumber： Docket No. 302677
Judges： Markey, Murray, Shapiro
Filed Date： 12/4/2012
Status： Precedential
Modified Date： 11/10/2024
Defendant-counterplaintiff, city of Brighton (the city), appeals by leave granted the trial court’s order granting partial summary disposition in favor of plaintiffs. The trial court determined that § 18-59 of the Brighton Code of Ordinances (BCO) violates substantive due process when it permits the city to have an unsafe structure demolished as a public nuisance, without providing the owner the option to repair it, if the structure is deemed unreasonable to repair, which is presumed when repair costs would exceed 100 percent of the structure’s true cash value as reflected in the assessment tax rolls before the structure became unsafe. We interpret the ordinance as only allowing the exercise of an option to repair when a property owner overcomes or rebuts
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiffs own two residential properties located in downtown Brighton. There is a house on one parcel of property and a house with a garage or barn on the other. According to the city, the three structures have been unoccupied and largely ignored and unmaintained for over 30 years, representing the most egregious instances of residential blight in Brighton. The city’s building and code enforcement official (hereafter “building official”) informed plaintiffs in a letter that
Whenever the city manager, or his designee, has determined that a structure is unsafe and has determined that the cost of the repairs would exceed 100 percent of the true cash value of the structure as reflected on the city assessment tax rolls in effect prior to the building becoming an unsafe structure, such repairs shall be presumed unreasonable and it shall be presumed for the purpose of this article that such structure is a public nuisance which may be ordered demolished without option on the part of the owner to repair.
Plaintiffs were ordered to demolish the structures with no option to repair within 60 days.
Plaintiffs appealed the determination to the city council pursuant to BCO § 18-61, which provides in pertinent part:
An owner of a structure determined to be unsafe may appeal the decision to the city council. The appeal shall be in writing and shall state the basis for the appeal. ... The owner or his agent shall have an opportunity to be heard by the city council at a regularly scheduled council meeting.*699 The city council may affirm, modify, or reverse all or part of the determination of the city manager, or his designee.
In preparation for the appeal, plaintiffs retained a structural engineer and various contractors to determine the repairs necessary to bring each structure into compliance with the applicable building codes. Plaintiffs subsequently filed affidavits signed by their retained engineer and contractors that addressed the condition of the structures relative to their professional field and provided cost estimates with respect to the proposed repairs. These individuals prepared drawings and repair plans and asserted that the structures were safe, structurally sound, and readily repairable. At a hearing before the city council, plaintiffs agreed to provide the building official with an expert’s report and to allow city personnel access to the structures for purposes of exterior and interior inspections. The city council tabled the appeal pending the inspections. Subsequently, plaintiffs authorized their contractors to commence some repairs, and applications for building permits were submitted to the city. In a letter to plaintiffs, the building official denied the building-permit applications and accused plaintiffs of refusing to allow inspections of the structures and of failing to provide their expert’s report, contrary to plaintiffs’ agreement at the city council hearing. The building official also noted that the city had the right to inspect property before granting permits. Because they were denied building permits, plaintiffs did not complete any repairs.
The pending appeal to the city council was resumed, and hearings were conducted in which the council received the reports of inspectors, contractors, engineers, and other experts, along with written repair estimates, PowerPoint presentations, testimony, and oral arguments. The building official and his experts opined that the total cost to bring the structures up to code was approximately $158,000. The city determined the cash value of the structures at approximately $85,000. One of plaintiffs’ experts opined that it would cost less than $40,000 per house to make the necessary repairs and bring the structures up to code.
In Resolution 09-16, Decision on Appeal, the city council adopted the findings set forth in the building official’s inspection reports, accepted his repair estimates and' agreed with the oral testimony and PowerPoint presentations the building official introduced. The city council determined that plaintiffs’ reports and
Plaintiffs did not take any steps toward demolishing the structures within the 60-day period. Shortly before the 60-day period was set to expire, plaintiffs filed the instant action against the city, alleging, in a first amended complaint, a violation of procedural and substantive due process, a violation of equal protection, inverse condemnation or a regulatory taking, contempt of court, common-law and statutory slander of title, and a violation of Michigan housing laws under MCL 125.540.
The city subsequently filed its own complaint in a separate action, requesting injunctive relief in the form of an order enforcing BCO § 18-59 and requiring demolition of the structures. The trial court consolidated the cases. Plaintiffs filed a motion for partial summary disposition with respect to their complaint, arguing that BCO § 18-59 was unconstitutional. The trial court denied the motion on procedural grounds, concluding that plaintiffs were required, but failed to submit, documentary evidence.
The trial court determined that BCO § 18-59 violated substantive due process because it precluded property owners from having the opportunity to repair their property, which served no rational interest or purpose, was entirely arbitrary, and shocked the conscience. The trial court agreed with the city that the demolition of unsafe structures promoted the legitimate interest of public health and safety; however, that interest, the court stated, was not advanced by denying a property owner the chance to repair an unsafe structure. The court observed that if the owner repaired a structure and brought it up to code, the health and safety of the
II. ANALYSIS
A. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a motion for summary disposition. Kuznar v Raksha Corp, 481 Mich 169, 175; 750 NW2d 121 (2008). We also review de novo constitutional issues as well as questions concerning the proper construction of an ordinance. Kyser v Kasson Twp, 486 Mich 514, 519; 786 NW2d 543 (2010).
When reviewing an ordinance, we apply the same rules applicable to the construction of statutes. Great Lakes Society v Georgetown Charter Twp, 281 Mich App 396, 407; 761 NW2d 371 (2008). “The goal of statutory construction, and thus of construction and interpreta
B. CONSTITUTIONAL DUE PROCESS PRINCIPLES
The state and federal constitutions guarantee that no person shall be deprived of life, liberty, or property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17; Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825 (2005). “Procedure in a particular case is constitutionally sufficient when there is notice of the nature of the proceedings and a meaningful opportunity to be heard by an impartial decision maker.” Id. And, although the text of the Due Process Clauses provides only procedural protections, due process also has a substantive component that protects individual liberty
In Kropf v Sterling Hts, 391 Mich 139, 157; 215 NW2d 179 (1974), our Supreme Court discussed a substantive due process claim in the context of a zoning ordinance, stating:
A plaintiff-citizen may be denied substantive due process by the city or municipality by the enactment of legislation, in this case a zoning ordinance, which has, in the final analysis, no reasonable basis for its very existence. The power of the city to enact ordinances is not absolute. It has been given power by the State of Michigan to zone and regulate land use within its boundaries so that the inherent police powers of the state may be more effectively implemented on the local level. But the state cannot confer upon the local unit of government that which it does not*707 have. For the state itself to legislate in a manner that affects the individual right of its citizens, the state must show that it has a sufficient interest in protecting or implementing the common good, via its police powers, that such private interests must give way to this higher interest.
A citizen is entitled to due process of law when a municipality, exercising its police power, enacts an ordinance that affects the citizen’s constitutional rights. Kyser, 486 Mich at 521. In determining whether an ordinance enacted by a municipality comports with due process, the test employed is whether the ordinance bears a reasonable relationship to a permissible legislative objective. Id. When a municipal ordinance restricts the use of property, the issue is whether the exercise of authority entails an undue invasion of private constitutional rights without a reasonable justification in connection with the public welfare. Id. We begin with the presumption that an ordinance is reasonable and thus constitutionally compliant. Id. “[T]he burden is upon the person challenging... an ordinance to overcome this presumption by proving that there is no reasonable governmental interest being advanced by the zoning ordinance.” Id. The property owner must demonstrate that the challenged ordinance arbitrarily and unreasonably affects the owner’s use of his or her property. Id. An ordinance does not offend the Due Process Clause when it satisfies the reasonableness test; the ordinance must be reasonable or reasonably necessary for purposes of preserving the public health, morals, or safety.
Although the trial court’s ruling and the arguments of the parties are framed in the context of substantive due process, we find that the nature of the issues presented in this case also implicate procedural due process. The principle espoused by plaintiffs is that a property owner has the right, or must have the option or opportunity, to make repairs to a structure deemed unsafe by a municipality before the structure can be demolished or razed. Plaintiffs do not contend that the city lacks the general authority to demolish unsafe or dangerous structures; they instead argue that a property owner must be afforded the opportunity to repair an unsafe structure before the city orders it demolished. Plaintiffs’ argument contains elements of procedural due process requiring notice, hearing, and a ruling by an impartial decision-maker, before the government infringes constitutionally protected property interests.
“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v Burch, 494 US 113, 125; 110 S Ct 975; 108 L Ed 2d 100 (1990). “ ‘Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.’ ” Id. at 125-126 (citation omitted). Procedural due process differs from substantive due process in that “procedural due process principles protect persons from deficient procedures that lead to the deprivation of cognizable [property] interests.” Bartell v Lohiser, 215 F3d 550, 557 (CA 6, 2000). A procedural due
In D&M Fin Corp v City of Long Beach, 136 Cal App 4th 165, 174; 38 Cal Rptr 3d 562 (2006), the California Court of Appeal stated that “[w]hen a city threatens to demolish structures, due process requires that the city provide the property owner and other interested parties with notice, with the opportunity to be heard, and with the opportunity to correct or repair the defect before demolition.” And, in Hawthorne S & L Ass’n v City of Signal Hill, 19 Cal App 4th 148, 159; 23 Cal Rptr 2d 272 (1993), quoting Miles v Dist of Columbia, 166 US App DC 235, 239; 510 F2d 188, 192 (1975), the court opined:
“A municipality in the exercise of its police power may, without compensation, destroy a building or structure that is a menace to the public safety or health. However, that municipality must, before destroying a building, give the owner sufficient notice, a hearing and ample opportunity to demolish the building himself or to do what suffices to*710 make it safe or healthy; such a procedure is the essence of the governmental responsibility to accord due process of law.”
Plaintiffs’ position in this case that the ordinance denies them the right or an opportunity to repair prior to demolition can be equated to an argument that the ordinance lacks a necessary procedural safeguard or that it is procedurally deficient or inadequate. Plaintiffs do not contend that demolition of an unsafe structure is unlawful even when an option to repair is extended to the property owner by the municipality. Rather, plaintiffs’ position is that a deprivation of a property interest by way of demolition is unjustified if an opportunity to correct any structural defects is not made available. Plaintiffs do not take the stance that demolition of unsafe structures is inherently impermissible. To some extent, the mere manner in which the issue is framed bears on whether plaintiffs’ claim is one of substantive or procedural due process. Plaintiffs certainly contend that the demolition of unsafe structures “without a sound repair option” is inherently impermissible. As the court in Schiller, 540 F Supp at 614, noted, “[T]he line dividing ‘procedural due process’ from ‘substantive due process’ is not always bright, [and] it may be difficult in some cases to determine which is the proper characterization of the plaintiffs claim.” Ultimately, we conclude that the ordinance infringes on plaintiffs’ due process rights, whether denominated procedural or substantive, thereby making it unnecessary to determine which due process principle is actually embodied in plaintiffs’ argument.
C. DISCUSSION
We first carefully examine the language of BCO § 18-59 to determine and define its scope, its require
Whenever the city manager, or his designee, has determined that a structure is unsafe and has determined that the cost of the repairs would exceed 100 percent of the true cash value of the structure as reflected on the city assessment tax rolls in effect prior to the building becoming an unsafe structure, such repairs shall be presumed unreasonable and it shall be presumed for the purpose of this article that such structure is a public nuisance which may be ordered demolished without option on the part of the owner to repair.[10 ]
Accordingly, there must be an initial determination that a structure is indeed unsafe, and the definition of an “unsafe structure” is found in BCO § 18-46. The city’s building official determined that the structures were unsafe under BCO § 18-46, and plaintiffs do not debate that conclusion for purposes of this appeal. Next, there must be a determination, which the building official in this case made as to all buildings, that the repair costs would exceed the true cash value of a structure as reflected in past assessment tax rolls when the structure was not characterized as unsafe. Once a determination is made that an unsafe structure exists and that the cost to repair exceeds the structure’s value
“Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.” Black’s Law Dictionary (8th ed). For purposes of our analysis, we shall assume that the “presumed” language in BCO § 18-59 does not create a conclusive, mandatory, absolute, or irrebuttable presumption, which would only strengthen our conclusion that the ordinance violates due process. Under BCO § 18-59, a property owner may, regardless of the fact that repair costs would exceed a structure’s true cash value, avail himself or herself of an opportunity to overcome or rebut the presumption by showing that making repairs would nonetheless be reasonable under the circumstances. In turn, accomplishing the repairs would abate any unsafe conditions negating the presumption of public nuisance, thereby precluding a demolition order. Conceivably, a property owner could attempt to rebut the presumptions of BCO § 18-59 by pleading the owner’s case directly to the city manager
Even though BCO § 18-59 can be interpreted to allow a property owner the opportunity to overcome or rebut the presumptions of that section, creating the possibility that an owner of a structure determined to be unsafe will be accorded an option to repair, such a construction of BCO § 18-59 still requires an owner to establish the reasonableness of making repairs. Stated otherwise, in order to overcome the presumption that allows the city to order demolition absent an option to repair, the property owner must show that making repairs is reasonable. We find this aspect of the ordinance to be constitutionally problematic and in violation of due process. The appeal section, BCO § 18-61, does not provide its own or a different standard; therefore, the city council in addressing an appeal would be constrained to also apply the reasonableness standard that governs BCO § 18-59. Such a standard prevents a property owner who has the desire and ability to make the necessary repairs in a timely fashion to render a structure safe, even when the cost of repairs exceeds the city-determined true cash value of the structure before it became unsafe, from doing so because the ordinance deems such repairs unreasonable.
We conclude that if the owner of an unsafe structure wishes to incur an expense that others might find unreasonable to repair a structure, bring it up to code, and avoid a demolition order, the city should not infringe upon the owner’s property interest by forbidding
We note that BCO § 18-59, by using the language “may be ordered” (emphasis added), gives the city manager or his designee the discretion to not order the demolition of a structure and to allow repairs even though the structure is unsafe and the repair costs exceed the structure’s pertinent value. In other words, demolition is not mandated when it is unreasonable to make repairs. We find, however, that this discretionary language does not save the ordinance from constitutional challenge, considering that the ordinance places no constraints on the exercise of what is essentially unfettered decretion.
We hold that BCO § 18-59 violates substantive due process because it is arbitrary and unreasonable, constituting a whimsical ipse dixit; it denies a property owner the option to repair an unsafe structure simply on the basis that the city deems repair efforts to be economically unreasonable. When a property owner is willing and able to timely repair a structure to make it safe, preventing that action on the basis of the ordinance’s standard of reasonableness does not advance the city’s interest of protecting the health and welfare of its citizens. We do not dispute that a permissible legislative objective of the city under its police powers is to protect citizens from unsafe and dangerous structures and that one mechanism for advancing that
We also determine that BCO § 18-59 does not provide adequate procedural safeguards to satisfy the Due Process Clause. Before potentially depriving plaintiffs or any city property owners of their constitutionally protected property interests through demolition predicated on a determination that a structure is unsafe, the city was constitutionally required to provide plaintiffs with a reasonable opportunity to repair the unsafe structure, regardless of whether doing so might be viewed as unreasonable because of its cost. In addition to notice, a hearing, and an impartial decision-maker, which are provided for in § 18 of the BCO, the city should have also provided for a reasonable opportunity to repair an unsafe structure, limited only by unique or emergency situations.
Due process is a flexible concept, but its essence is fundamental fairness. Reed, 265 Mich App at 159. The procedures that are constitutionally required in a particular case are determined by examining (1) the private interest at stake or affected by the governmental action, (2) the risk of an erroneous deprivation of the interest under existing procedures and the value of additional safeguards, and (3) the adverse impact on the government of requiring additional safeguards, including the consideration of fiscal and administrative burdens. In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993), citing Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976). The nature of the private interest at stake in this case is substantial — plaintiffs’ property interest as owners of three structures. Next, the risk of an erroneous deprivation of the property interest under BCO § 18-59 is significant as it allows for the demolition of unsafe structures when repairs are considered unreasonable despite an owner’s willingness and ability to make timely repairs. The added safeguard of a repair option would eliminate the risk of an erroneous deprivation of the property interest. Finally, adding the safeguard of a repair option would minimally affect the city’s interest in the health and welfare of its citizens, as well as not cause any fiscal or administrative burdens beyond those that would be associated with demolition of the property. Under BCO § 18-59, the cost to the city if it demolishes an unsafe structure may be assessed as a lien against the real property. If repairs are under
Court decisions in other jurisdictions, while not binding precedent, provide persuasive support for our holding. See Ammex, Inc v Dep’t of Treasury, 273 Mich App 623, 639 n 15; 732 NW2d 116 (2007). In Washington v City of Winchester, 861 SW2d 125 (Ky App, 1993), the appellant-owner challenged a circuit court order that required her to demolish a building that had numerous building code violations. A building inspector initially ordered demolition, which decision was appealed to a city appeals board. The appeals board delayed demolition to allow a determination regarding the value of the building and the cost of repairs necessary to bring the building into compliance with the building code. Subsequently it was determined that the estimated cost to repair the building exceeded 100 percent of the building’s appraised value. On the basis of this information, the appeals board affirmed the inspector’s demolition order, and the circuit court then affirmed the decision by the appeals board. On appeal to the Kentucky Court of Appeals, the appellant building owner argued that she should have been given the opportunity to bring the building into compliance with the code through repairs. Id. at 126. Two separate code provisions were relevant, and they provided:
*719 PM-111.1: The code official shall order the owner of any premises npon which is located any structure or part thereof, which in the code official’s judgment is so old, dilapidated or has become so out of repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation, occupancy or use, and so that such structure would be unreasonable to repair the same, to raze and remove such structure or part thereof; or if such structure can be made safe by repairs, to repair and make safe and sanitary or to raze and remove at the owner’s option[.]
PM-111.2: Whenever the code official determines that the cost of such repairs would exceed 100% of the current value of such structure, such repairs shall be presumed unreasonable and it shall be presumed for the purpose of this section that such structure is a public nuisance which shall be ordered razed without option on the part of the owner to repair. [Id,.]
The appellate court agreed with the building owner that she should have been given the option to repair the building within a reasonable time. Id. The court, citing Johnson v City of Paducah, 512 SW2d 514, 516 (Ky, 1974), held that “the exercise of the city’s police power is for the protection of the public, but the means of its implementation may extend no further than public necessity requires.” Washington, 861 SW2d at 126. The court noted that the failure to provide a property owner the option of repair was arbitrary, that the government did not have absolute power over private property, and that improperly requiring demolition absent compensation constituted a taking. Id. at 126-127.
*720 [J]ust as the cost of... [code] compliance is a property-owner’s problem, the method of compliance is also the property owner’s decision. It’s his/her money and far be it from the [c]ity to say how a reasonable person should spend his/her money.. . . [A]s free men and women, we can spend our own money as we see fit, that if we want to pour endless dollars, sweat, etc., into some historic building, or personally appealing project, we may — even if the ultimate cost would be ten fold over the cost of demolition and rebuilding. So, too, with the [c]ity... and the appellant herein, if she wants to pour huge sums of money into her unfit buildingO, she has that option. A reasonable person may very well choose demolition, but it’s her money and her choice. [Id. at 127.]
We agree with these sentiments and observations. While BCO § 18-59 varies slightly from the code provision at issue in Washington, we adopt the principles espoused in Washington for purposes of our analysis of BCO § 18-59.
In Herrit v City of Butler Code Mgt Appeal Bd, 704 A2d 186 (Pa Commw, 1997), the Pennsylvania Commonwealth Court addressed the constitutionality of a code provision identical to that at issue in Washington. The appellant, whose property was found to be unsafe and a public nuisance, maintained that the code provision was unconstitutional because it did not give him the opportunity to repair his property before demolition. Id. at 188. The court initially pointed out that the purpose of the demolition notice was to provide a property owner a reasonable amount of time to make repairs to abate the dangerous condition. Id. at 189. The court, relying on Washington, 861 SW2d at 125, concluded that the code provision was unconstitutional. It reasoned that the provision was not reasonably
As in Herrit and Washington, we conclude that whether it is economically reasonable for a property owner to repair an unsafe or dangerous structure is irrelevant and cannot serve as the basis to deny a property owner an opportunity to repair a structure in order to comply with applicable code provisions.
In considering an ordinance that permitted the demolition of a structure when the cost to comply with code requirements exceeded 50 percent of the structure’s present value, the Georgia Court of Appeals ruled in Horne v City of Cordele, 140 Ga App 127, 130-131; 230 SE2d 333, 335-336 (1976):
The vice of the ordinance under consideration is that it flatly permits uncompensated destruction of the owner’s property where the cost of repair would exceed 50 percent of the value of the structure unrepaired....
In the present case it appears that the owner twice applied for and was refused building permits in order to repair the house under consideration here. We do not find it necessary to reach the question of whether the owner was in good or bad faith in applying, or whether the*722 building inspector was in good or bad faith in refusing the applications, or to pass on the remaining enumerations of error. Our holding is that any ordinance which authorizes demolition of a structure within the city without compensation to the owner merely because the cost of repair exceeds the value of the structure or any percentage therefof, without first allowing opportunity to repair (and, if necessary, providing for discovery of the criteria which must be met to bring the structure up to a minimum standard) is unconstitutional and void.
In Horton v Gulledge, 277 NC 353; 177 SE2d 885 (1970), overruled in part on other grounds by State v Jones, 305 NC 520; 290 SE2d 675 (1982), the North Carolina Supreme Court held that under its state constitutional version of the Due Process Clause, a city could not rely on an ordinance to order the demolition of unsafe structures without opportunity of repair when the cost to do so would exceed 60 percent or more of an unrepaired structure’s value. The court, in finding a constitutional violation, noted that the city did not assert that the structure could not be made code compliant if it were to be repaired or find the existence of an imminent threat to the safety of persons or property that required the immediate destruction of the structure. Id. at 360. The court reasoned that the state’s “ ‘police power does not include power arbitrarily to invade property rights.’ ” Id. at 363 (citation omitted). Further, “[pjolice regulation of the use or enjoyment of property rights can only be justified by the presence of a public interest, and such rights may be limited only to the extent necessary to subserve the public interest.’ ” Id. (citation omitted). Thus, the court concluded that when a structure can be repaired, it would be arbitrary and unreasonable for the city to require its destruction without first giving the owner a reasonable opportunity to remove the threat to the public health, safety and welfare by completing the necessary repairs. Id.
[it] is entirely reasonable and protects the rights of the property owner while permitting the municipality to deal*724 expeditiously with threats to the public health and safety. [The statute] makes a reasonable distinction between properties that are readily repairable and those that are not. The statute guarantees a property owner the opportunity to make repairs, either before or after an adjudication of “dangerous and unsafe,” if the property is readily repairable. If, however, the property is in need of substantial reconstruction to render it safe, a property owner who is willing to undertake such a project must obtain the necessary permits and undertake repairs promptly upon receiving notice. The owner of such a property who does not promptly undertake repairs, but instead chooses to contest whether the building is dangerous and unsafe and to litigate the question of whether the building is readily repairable, runs the risk that he will lose on the merits and an order of demolition will issue. [Id. at 130.]
We read Stokovich as upholding the constitutionality of the statute because it affords property owners the opportunity to commence the process of necessary repairs during the 15-day notice period. In the instant action, BCO § 18-59 gives a municipal officer the authority to order demolition, and BCO § 18-52(c)(3) allows the notice to contain a statement that the structure is to be demolished without the option to make repairs. Indeed, the building official, in notifying plaintiffs, stated that he had determined that the structures were unsafe and not reasonable to repair, and he ordered demolition within 60 days. Accordingly, the ordinance at issue in this case is distinguished from the statute in Stokovich.
Finally, we note that our own Supreme Court, cautioning that a remedy should not be greater than necessary to achieve a desired result, has stated that “something less than destruction of the entire building should be ordered where such will eliminate the danger or hazard.” State Police Comm’r v Anderson, 344 Mich 90, 96; 73 NW2d 280 (1955).
We find it necessary to address some of the arguments posed by our dissenting colleague. With respect to the criticism that procedural due process did not serve as a basis for the trial court’s ruling and that it is not argued on appeal, we conclude that for the reasons stated earlier, procedural due process principles are implicated and need to be examined and applied in order to properly resolve this appeal. The failure to offer correct solutions to a controlling legal issue does not limit the ability of this Court “to probe for and provide the correct solution.” Mack v Detroit, 467 Mich 186, 207; 649 NW2d 47 (2002). “[A]ddressing a controlling legal issue despite the failure of the parties to properly frame the issue is a well understood judicial principle.” Id.
In regard to procedural due process, the dissent criticizes our ruling on the grounds that requiring a reasonable opportunity to repair is not a matter of process or procedure and that the procedural due process rights to notice, a hearing, and an impartial decisionmaker are satisfied under the BCO, with nothing more being required. As indicated previously in this opinion, an option-to-repair requirement, incorporated as part of a razing or demolition ordinance relative to nuisances and unsafe structures, can logically be viewed as a procedural mechanism or safeguard comparable to notice, hearing, and impartiality mandates. See D&M Fin Corp, 136 Cal App 4th at 174; Hawthorne S & L, 19 Cal App 4th at 159; Miles, 166 US App DC at 239. At the same time, the matter concerning an option to repair also has significant substantive attributes in relationship to due process protections, and the cases that we discussed earlier dealt with the issue of a repair option within the analytical framework of
Next, as to the dissent’s claim that plaintiffs were accorded procedural due process by way of notice, a hearing, and an impartial decisionmaker, it must be emphasized that procedural due process is not always satisfied in full simply because notice, a hearing, and an impartial decisionmaker were provided. In Greenholtz v Inmates of the Nebraska Penal & Correctional Complex, 442 US 1, 12-13; 99 S Ct 2100; 60 L Ed 2d 668 (1979), the United States Supreme Court explained:
It is axiomatic that due process “is flexible and calls for such procedural protections as the particular situation demands.” The function of legal process, as that concept is embodied in the Constitution,... is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. [Citations omitted.]
Notice and an opportunity to be heard are “the most basic requirements of procedural due process.” In re Rood, 483 Mich 73, 92; 763 NW2d 587 (2009) (emphasis added). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews, 424 US at 333 (emphasis added; citation omitted). The Mathews Court observed that, “unlike some legal rules,” due process “is not a technical conception with a fixed content unrelated to time, place and circumstances.” Id. at 334 (quotation marks and citation omitted). “[T]he require
The dissent criticizes our reliance on Washington, 861 SW2d 125, Johnson, 512 SW2d 514, Herrit, 704 A2d 186, and Horne, 140 Ga App 127, arguing that they do not support our procedural due process ruling. We did not cite these cases with procedural due process specifically in mind; they were cited for their general due process analysis, and they tend to rely on substantive due process principles. These cases strongly support our finding of a substantive due process violation. The cases that we did expressly cite on the issue of procedural due process, D&M Fin Corp, 136 Cal App 4th 165, Hawthorne S & L, 19 Cal App 4th 148, and Miles, 166 US App DC 235, are not mentioned by the dissent.
The dissent concludes that one of the reasons that there is no constitutional violation is that a set of factual circumstances exist under which the ordinance is constitutional, i.e., when a structure is rendered unsafe due to events beyond the owner’s control, such as weather-related events, in which case an option to
The preceding argument naturally leads to the dissent’s primary argument, made in the context of both procedural and substantive due process, that BCO § 18-59 is constitutional because an option to repair remains a possibility, even in regard to blameworthy owners, where BCO § 18-61 allows an appeal to the city council wherein the presumption created by BCO § 18-59 can be overcome and the council can allow the owner an opportunity to make repairs. We earlier acknowledged that an owner can appeal to the city council and, although the dissent does not mention it, we even noted that a properly owner could attempt to overcome the presumption by pleading his or her case directly to the city manager or the manager’s designee under BCO § 18-59. However, and this point is not addressed by the dissent despite its being the linchpin of our holding, in order to overcome the presumption — a presumption that repairs are unreasonable — when appealing to the city council or pleading to the city manager, the property owner would necessarily have to establish that the act of making repairs is reasonable before being granted an opportunity to make repairs. The constitutional defect is the reasonableness requirement associated with repairs; a property owner should be entitled to make repairs even if others would find it economically unreasonable to do so. The city council rejected plaintiffs’ request to make repairs, finding, in part, that it was unreasonable to repair the structures.
BCO § 18-59 is implicated when a determination has been made that a structure is unsafe and that repair costs would exceed 100 percent of the structure’s earlier true cash value. These determinations implicate the presumption that engaging in repairs is unreasonable, which presumption is necessarily tied to and impacts
III. CONCLUSION
We interpret BCO § 18-59 as only allowing the exercise of an option to repair when a property owner overcomes or rebuts the presumption of economic unreasonableness, regardless of whether the property owner is otherwise willing and able to timely make the necessary repairs. We conclude that this standard is arbitrary and unreasonable. While police powers generally allow the demolition of unsafe structures to achieve the legitimate legislative objective of keeping citizens safe, the ordinance’s exclusion of a repair option when repairs are deemed economically unreasonable bears no reasonable relationship to this legislative objective. Demolition does not advance the objective of abating nuisances and protecting citizens to a greater degree than repairs, even ones more costly than the present value of the structure and which an owner is willing and able to timely incur. Therefore, we hold that the ordinance violates substantive due process. Moreover, by not providing procedural safeguards in the form of an option to repair when a property owner’s desire to repair could be viewed as unreasonable and lead to the unlawful deprivation of a constitutionally protected property interest, and which safeguard would burden the city to a lesser extent than demolition, the city’s ordinance also violates procedural due process.
We affirm. As the prevailing parties, plaintiffs may tax costs pursuant to MCR 7.219(A).
BCO § 18-46 defines an “unsafe structure,” setting forth a number of qualifying criteria. BCO § 18-47 makes it “unlawful for an owner or agent to maintain or occupy an unsafe structure.” BCO § 18-48 requires those responsible for a structure to “take all necessary precautions to prevent any nuisance or other condition detrimental to public health, safety, or general welfare from arising thereon.”
A stop-work order was posted as to any repairs that may have been contemplated or initiated.
Before the complaint in the case at bar was filed, plaintiffs had commenced a mandamus action against the city, which the trial court dismissed.
In Resolution 09-26, the city council found that “the testimony and evidence presented [was] insufficient to show cause why the structure^] should not he demolished for the reasons that that testimony and evidence was irrelevant and/or not credible, and that [plaintiffs] have, accordingly, not fulfilled their burden of proof.” Resolution 09-26, in its written form, further indicated that plaintiffs were to be given approximately six months to “take any and all actions necessary to bring the [structures into compliance with the 2006 Michigan Building Code.” We note, however, that a transcript of the hearing in which the resolution was announced, recited, voted upon, and approved fails to include this provision. Resolution 09-26, in its written form, additionally authorized the city attorney to institute appropriate legal proceedings to seek demolition of the structures if the work was not completed in timely fashion. The transcript of the hearing, however, reflects that the council authorized the city attorney to immediately pursue legal proceedings seeking demolition. The transcript also indicates that two resolutions were prepared before the hearing: one that authorized litigation and one that authorized an “extension for repair.” Given the surrounding circumstances and the events that transpired, it is clear that the city council did not allow plaintiffs an opportunity to make repairs. Evidently, after the hearing, the council mistakenly executed the wrong resolution.
We note that the trial court granted partial summary disposition to the city on its motion relative to plaintiffs’ claims for money damages based on a violation of the Michigan Constitution and in regard to the contempt of court and slander of title. Additionally, plaintiffs agreed to the dismissal of their claim under MCL 125.540 (enforcement agency’s notice requirements for dangerous conditions).
Plaintiffs presented, and the trial court ruled upon, myriad arguments on several subjects in the motion for partial summary disposition; however, we shall not address them as only the constitutionality of BCO § 18-59 is at issue on appeal.
We note that this case presents a facial challenge to the ordinance. See Hendee v Putnam Twp, 486 Mich 556, 568 n 17; 786 NW2d 521 (2010) (distinguishing between facial and as-applied challenges and noting that a facial challenge attacks the very existence of an ordinance as infringing upon property rights).
The Kyser Court explained that while the standard of review for zoning regulations is characterized as a “reasonableness” test, it is analogous to the “rational basis” test for testing the constitutionality of legislation not involving suspect classifications or fundamental rights to which courts apply heightened or strict scrutiny. Kyser, 486 Mich at 522 n 2.
In contrast to procedural due process, substantive due process protects individual liberty and property interests from arbitrary government actions regardless how fairly implemented. People v Sierb, 456 Mich 519, 523; 581 NW2d 219 (1998); Mettler Walloon, 281 Mich App at 197.
Under BCO § 18-52(a) and Ob), the city must issue and serve a notice on an owner of a structure, or the owner’s agent, that reflects a determination that the owner’s structure is unsafe. BCO § 18-52(c)(3) provides that the notice must “[slpecify the repairs and improvements required to be made to render the structure safe or if the city manager, or his designee, has determined the structure cannot be made safe, indicate that the structure is to he demolished[.]” (Emphasis added.) In situations in which the city allows an opportunity to repair an unsafe structure, the notice must “[slpecify a reasonable time within which the repairs and improvements must be made or the structure must be demolished.” BCO § 18-52(c)(4).
Considering that the issue on appeal concerns repair rights, our focus is more on the presumption that repairs are unreasonable, and therefore not permitted, than on the presumption that the unrepaired structure is a public nuisance.
Municipalities may exercise their legitimate police powers to abate a public nuisance. Ypsilanti Charter Twp v Kircher, 281 Mich App 251, 272; 761 NW2d 761 (2008). There is a well-established exception to the constitutional prohibition against takings without just compensation, which provides that because no person has the right to utilize property in a manner that creates a nuisance, the state, when asserting power to stop a nuisance, has not taken anything. Id. Consequently, governmental entities are not required to provide just compensation when they diminish or destroy a property’s value to abate a public nuisance. Id.
We note that BCO § 18-59 provides an exception when “a structure is unsafe as a result of an event beyond the control of the owner, such as fire, windstorm, tornado, flood or other Act of God.” In such situations, “the owner shall be given ... reasonable time within which to make repairs and the structure shall not be ordered demolished without option on the part of the owner to repair.” BCO § 18-59. Thus, even if the cost of repairs exceeds the property’s value, a right to repair exists when a structure is made unsafe through events that the owner could not control. Stated otherwise, repairs are permissible even though they are otherwise unreasonable.
We recognize that there may occasionally be unique circumstances in which repair efforts cannot be allowed, despite a willingness by the property owner to do so, such as where repairs necessary to meet code requirements cannot be designed or cannot be accomplished in a safe or timely manner. There may also be emergency situations, see BCO § 18-56, where immediate destruction is necessary to avoid an imminent danger and repairs are not feasible. The instant action does not present a unique or an emergency situation. Moreover, and importantly, the
See n 14 supra.
The court ultimately determined that the code provision regarding repair costs and property values was unconstitutional under § 2 of the Kentucky Constitution. Washington, 861 SW2d at 126. Section 2 of the Kentucky Constitution provides that “[albsolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” This principle is essentially
We acknowledge a contrary result in City of Appleton v Brunschweiler, 52 Wis 2d 303; 190 NW2d 545 (1971), but find that case unpersuasive because the court addressed the issue as one of statutory interpretation and only superficially mentioned possible constitutional problems.
Conceivably, a property owner could attempt to overcome the public-nuisance presumption by showing that although the structure is unsafe and no repairs are to be made, the structure is nevertheless not a public nuisance. Showing a desire or wish to repair would have no bearing on or relationship to overcoming the public-nuisance presumption.
We note that it is even arguable that BCO § 18-61 only allows an appeal of an unsafe-structure determination where it provides, “An owner of a structure determined to be unsafe may appeal the decision to the city council.” Again, the presumptions in BCO § 18-59 only arise after it is determined that a structure is unsafe and the cost of repairs exceeds value. Therefore, if an owner simply wants an opportunity to repair and accepts that his or her structure is unsafe and that repair costs exceed value, or the owner cannot prove otherwise, one could reasonably construe BCO § 18-61 as not even permitting the owner to challenge the presumptions created by BCO § 18-59 in an appeal to the city council, as the council could only entertain a determination that a structure was unsafe. The language in BCO § 18-61 does not address appealing a demolition determination in general. If a property owner could show that a structure is safe, the whole issue of repairs and an option to repair becomes moot given that demolition could not be ordered under BCO § 18-59 absent a finding that a structure is unsafe. The fact that the city