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To help avoid having the worker considered an employee, we recommend permitting any workers of the business to set his or her own day-to-day hours and not be told the precise manner in which to perform the contracted work. Instructing contracted workers on a daily or weekly basis as to where their services are needed, however, is not an indication by itself that the worker will be considered an employee. It’s understandable that the township must provide some direction.

The manner of payment should be limited to an hourly rate for a predetermined number of hours or a flat fee for the completion of the agreed to services. The payment for services should not include compensation for medical benefits or vacation or sick time. The township should always issue 1099 tax forms as well.

As for the township’s ability to hire, fire and discipline the worker, such control over the worker can tend to show that the worker is an employee. Although this factor alone will not turn an independent contractor into an employee, understandably, the township must maintain some level of control over the worker to minimize the township’s risk predicated on unlawful and negligent acts of the worker and to verify that needed services are being performed. Furthermore, given that the township would always retain the right to terminate the contract underlying the service relationship, the ability to fire and hire the worker will be with the township. We recommend that the township refrain from disciplinary procedures of any type, and thus, solely rely on its ability to terminate the service contract. If services are not being performed as contemplated, the township, after ensuring it is not breaching any terms of the service contract, should consider terminating the contract and seeking help elsewhere.

There are a myriad of other factors that a court will weigh to decide whether the worker is an independent contractor, including whether the worker is referred to as an independent contractor, not an employee, and whether any documents referencing the service are labeled as independent contractor agreements. Giera v Belleville, Michigan Court of Appeals (2012). For more information on this subject, see our June 2013 E-Letter and our August 2012 E-Letter.

Recovering Costs of Blight and Nuisance Abatement

Enforcement of blight and nuisance ordinances is crucial to maintain clean, safe, healthy and aesthetically pleasing communities. If enforcement culminates in court action, the township has already made a critical determination that the violations are significant and warrant incurring legal fees and court costs to abate. The finality of the court action should result in the issuance of an order requiring the property owner to abate the violations. Not all property owners willingly comply.

Once it has a court order abating the nuisance, the township must sometimes force compliance with the order. The township can return to court and request that the property owner be held in “contempt of court” until compliance is reached. Compliance is typically obtained by civil fines or even jail terms. But compliance is not guaranteed and additional attorney fees and court costs will be incurred.

With skillful legal counsel, a better alternative exists. Orders requiring the violations to be abated should contain clauses that permit the township to enter the property and abate the violations itself if the owner does not. Most townships contract services to assist with abatement. Although additional expenses are incurred, the township has the legal right to recover its costs for abating the violations and charging the costs against the property owner and against the property itself.

To ensure recovery, townships should be prepared for two objections that the property owner may raise: (1) the services detailed on the bill were not performed and (2) a less expensive alternative was available. Townships need to document the costs incurred and the services performed. We recommend that townships provide the court with detailed bills (documenting services performed and labor costs) and photographs documenting the clean-up and abatement. This information will defeat any claims by the property owner that services charged for were not completed.

The property owner may still argue the costs requested should be lowered because a more cost effective approach was available. A recent Michigan Court of Appeals’ decision found little merit in this argument, since the property owner could have avoided all costs by either not violating the ordinance, or by complying with the court’s order. Although the township has to incur additional costs in a case like this, the township should ultimately recover its costs and have the blight or nuisance violation abated. Bloomfield Hills v Froling, Michigan Court of Appeals (2012).

Motocross Parks Do Not Boost Crop Yields

Not all townships deal with regulating motocross parks designed for racing dirt bikes and other all-terrain vehicles (ATVs) around a track. Even so, some landowners operate, or attempt to operate, the parks on agriculturally zoned land. How can townships regulate the parks with their current zoning and regulatory ordinances? Although the answer is not clear-cut, generally motocross parks are in violation of a township’s zoning ordinance and nuisance ordinance.

The specific characteristics of the park will determine whether it violates the zoning ordinance. If the park is a highly intensive operation, designed for racing multiple bikes, or receives a profit, the park will be considered more than mere recreational use of the property. The park will violate the zoning ordinance since it is more than an accessory use and will not enhance the primary use of farming. It is difficult for any property owner constructing or maintaining a motocross park to establish that motocross riding and construction of tracks is dependent on or relates to farming. Now this does not limit the use of ATVs for farming purposes, such as hauling wagons, spraying soybeans or corn, and providing feed to cattle.

In addition to enforcing the zoning ordinance, the dust, odor and noise created by riding around the track may constitute a nuisance under a township’s nuisance ordinance, justifying an additional reason why the motocross park must cease to operate. Ida Township v Southeast Michigan Motorsports, Michigan Court of Appeals (2013).

— Christopher S. Patterson cpatterson@fsbrlaw.com