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A Rare Win for a Substantive Due Process land use claim

Written by Daniel P. Dalton on December 10, 2012 Category: Land Use and Zoning

In a notable case recently decided by the Michigan Court of Appeals, a local land use ordinance was found to violate both the substantive and procedural due process rights of property owners. In Bonner v. City of Brighton, the court held that Brighton Code of Ordinances (BCO) Section 18-59 violates due process when it requires the demolition of structures found to be unsafe without giving the property owner the option of repairing the structure.

The plaintiffs in this case, the Bonners, owned two residential properties in downtown Brighton. The houses on the properties were unoccupied and the houses had been falling into disrepair for many years. In light of the very poor condition of the houses, the City of Brighton (City) notified Plaintiffs that the buildings were unsafe structures and public nuisances. As such, the buildings fell under BCO § 18-59 which states in relevant part:

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.

The City ordered Plaintiffs to demolish the structures within 60 days. Plaintiffs went through the appeals process provided for by the BCO but were unsuccessful and then filed suit with the trial court. The trial court granted Plaintiffs’ motion for partial summary disposition and held BCO § 18-59, on its face, violated substantive due process. The City appealed the ruling.

On appeal, the Court of Appeals ruled that BCO § 18-59 not only violated substantive due process, but also procedural due process. According to the court, substantive due process is violated when “governmental conduct [is] so arbitrary and capricious as to shock the conscience.” The court said that the ordinance arbitrarily presumes that repairs to a structure that exceed the cash value of the structure are unreasonable and thus impermissible. The court concluded that the ordinance was arbitrary and did not serve a legitimate purpose since repairs to a structure would eliminate the risks of an unsafe structure just as well as demolition would. The court said that “if the owner of an unsafe structure wishes to incur an expense that others might find unreasonable in order 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 it.”

According to the court, procedural due process is satisfied when “there is notice of the nature of the proceedings and a meaningful opportunity to be heard by an impartial decision maker.” However, the court also points out that the essence of the concept is “fundamental fairness” and determining the precise procedure required in each situation involves several factors. After examining the facts, the court found that in order to comply with procedural due process the City was required to give property owners the option to repair a structure before it is demolished. The court said that such a safeguard was necessary to “eliminate the risk of an erroneous deprivation of the property interest.”

This case stands out as unusual because a successful claim of a violation of due process by a statute or ordinance is rare. Some tend to view due process claims as unwinnable or nearly so. Bonner v. City of Brighton serves as a reminder that a good lawyer and a good set of facts make even difficult claims winnable. This case also emphasizes the importance of property rights in the eyes of courts and especially Michigan courts. The case certainly will be worth monitoring as it goes to the Michigan Supreme Court.

The attorneys at Dalton & Tomich, plc have extensive experience with land use matters and with matters concerning local ordinances. If you feel that your rights or the rights of your organization are being violated, please do not hesitate to contact us.

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