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Many townships continue to struggle with ordinance enforcement. There are multiple reasons, including knowledge of the enforcement process, staffing, and costs. As those townships that have become embroiled in enforcement litigation are aware, the litigation costs can be significant and the results may not meet expectations. Many townships are left soured after their initial foray into ordinance enforcement. However, there is a solution: implement a process for ordinance enforcement based upon civil infractions. This process is quicker and less costly. Compliance can be achieved in many instances without going to court, and for those that do go to court, legal counsel is not always necessary. Learn about the basics of civil infraction ordinance enforcement and ten strategies for effective ordinance enforcement in this E-Letter.
How Does the Township Currently Enforce Ordinances?
No township is required to adopt the same ordinances. This means that no two townships have the same ordinances. It is an advantage allowing each township to conform its regulations to the desires of its residents. Even with these differences among Michigan townships, an ordinance enforcement process relying on civil infraction citations can be implemented in every jurisdiction within Michigan.
Initially, a township has to determine whether it currently uses a civil infraction process. To determine how a township currently enforces ordinances, each ordinance can be reviewed to determine whether there is a penalty for violation of that ordinance. Penalties can include misdemeanors, civil infractions, injunctive relief through other judicial avenues (i.e., circuit court cases), or self-help provisions.
Misdemeanor enforcement is often the default enforcement mechanism. An ordinance providing for a misdemeanor penalty will include a maximum fine not to exceed $500.00 and no more than 93 days in county jail. Those ordinances that provide for misdemeanor prosecution do not also provide for civil infraction enforcement, unless specifically stated. In contrast to misdemeanor penalties, those ordinances providing for civil infraction penalties will not provide for any jail time. The penalty provision will impose a fine of not more than $500.00 in most cases and allow for injunctive relief. If a township relies on civil infraction enforcement, it also will have adopted a civil infraction citation ordinance.
How Does the Township Adopt a Civil Infraction Process?
Using civil infraction citations to effectively achieve ordinance compliance applies to both zoning and non-zoning ordinances. This allows the enforcement process to be the same regardless of whether it is a zoning violation or a non-zoning violation (such as a blight violation). If the township does not currently enforce its ordinances with civil infraction citations, the township can change easily to civil infraction enforcement. For a township to do so, it must adopt a municipal civil infractions ordinance. This is a standalone ordinance that sets forth the process for issuing a civil infraction citation, the notice requirements for serving a citation, and the potential steps to complete the process in district court. The township must also amend each specific ordinance that imposes a penalty to allow for civil infraction violations. For those with zoning ordinances in place, but where specific authorization for civil infractions is not provided, an amendment to the zoning ordinance will be required.
A Word About The “Verbal Warning”
A general primer on civil infraction citations and civil infraction enforcement was previously discussed in our November 2012 E-Letter. See our November 2012 E-Letter, Enforcing Your Township Ordinances (http://www.fsbrlaw.com/Portals/fsbr/Files/Township-E-Letters/2012%20November%20Township%20Law%20E-Letter.pdf). For those that have not been exposed to civil infractions, the following is a general summary of the process.
For civil infractions, a ticket or notice is issued to the violator, requiring an appearance before the district court or an enforcement bureau. If the violator does not admit responsibility, a hearing is scheduled by the court. If neither party requests a formal hearing, an informal hearing is set. Much like a “small claims” case, attorneys are not involved in these informal hearings. If the violator does not admit responsibility to the violations, a district judge or magistrate will resolve the case informally, without attorneys.
Either party can request a formal hearing or trial, with the right to be represented by attorneys. If a formal hearing is required, there is no time spent drafting pleadings or requesting or responding to discovery. The costs can be less than 5% of the costs required to pursue a formal action in circuit court. In general, trials in district court are very short and inexpensive compared to circuit court trials. The burden of proof for the township is lower in civil infraction cases (“preponderance of the evidence”) than in criminal misdemeanor prosecutions (“beyond a reasonable doubt”). There is also no right to a trial, which streamlines the process and decreases costs.
One important feature of civil infractions is that the township may also choose to seek injunctive relief, which is an order requiring the violator to cease the violation. If injunctive relief is sought as part of the township’s remedy, a formal hearing should be scheduled. If the court enters an injunction in favor of the township and the violator fails to comply with the injunction, the court can hold the violator in contempt of the court.
How Does the Township Effectively Use the Civil Infraction Process?
If a township already uses the civil infraction enforcement system or has amended its ordinances to do so, here are ten effective strategies to implement for a cost-effective and time-efficient enforcement process.
- Know the Township Ordinances: Ordinance provisions are worded with specific language. When issuing a civil infraction citation, ensure that the specific circumstances fall clearly within the ordinance language. The risk of failing to read and understand the requirements of the ordinance language can result in a loss of time and money. If there are questions as to whether a specific violation does exist, a brief consult with legal counsel will provide clarification.
- Rely on Your Enforcement Officer/Supervisor: Misdemeanor prosecution requires the township attorney to participate, which incurs fees to the township. The civil infraction enforcement process includes issuance of the citation and ultimate representation before the court by the enforcement officer or supervisor. Unless the citation proceeds to a formal hearing, ordinance enforcement can be accomplished without an attorney. For effective enforcement without an attorney, townships have an interest in educating their enforcement officer or supervisors to perform civil infraction enforcement. The more cases that township staff can handle without legal counsel allows financial resources to be spent on more enforcement proceedings or on other public services.
- Make and Follow a Code Enforcement Plan: Townships should follow an enforcement plan, such as: (1) receipt of written complaint of a violation; (2) open a file; (3) investigate the complaint (including written observations, noted violations (if any), and photographs; (4) determine whether there is a violation; (5) issue notice letter(s) requesting compliance; (6) issue citation (if no compliance); (7) verify compliance with order; and (8) close case. This allows township staff to follow a systematic process. It also ensures that each property owner in the township is treated in a similar manner.
- Create forms and Checklists: Consistent with creating a plan, forms should be created and used throughout the process to simplify enforcement. Forms may include complaint forms and notice of violation letters. Checklists can also be important to ensure compliance with the civil infraction enforcement requirements. For instance, if the violation includes use of land, then service of the civil infraction citation can be done by posting the ticket on the property and mailing it. A service checklist can be created to ensure that the ticket is properly processed.
- Document the Violations with Notice Letters and Photographs: Don’t make the court wonder whether the township has attempted to resolve the issue prior to filing the action. The township should document correspondence and notice of violation letters sent to the property owner. This is an important part that can also be addressed in forms and checklists.
- Pursue Violations as Early as Possible: In most cases, when the violation is quickly brought to the attention of the violator, it can be corrected with minimum difficulty. However, if the violation is allowed to continue without any enforcement response, it will become much more difficult to achieve compliance later. There are cases where the property owner has been permitted to culminate junk or blight for so many years that by the time it reaches the court, the court will likely order compliance, but the time period allowed for compliance will be longer than usual.
- Know the Desired Result When Issuing the Citation: When enforcing the zoning ordinance, consider whether compliance is the main concern or if fees and fines are also desired. It is important to know so that the grounds for settlement are understood by the enforcement officer, supervisor and township attorney. Typically, the court focuses on compliance and not fines and costs. Many courts prefer to have the parties resolve the issues between themselves, or to permit the violator time to comply before awarding fines or costs.
- Know your Magistrate or Judge: If the citation proceeds to an informal or formal hearing, the local magistrate or district court judge will hear the case. It is important to know who and how the court will process the case. At the outset of designing the township’s enforcement strategies, sit-down with the judges or a court administrator and gauge the court’s interest in being involved. These conversations will assist with what violations seem significant to the court, how to present those violations, and what type of relief the court may deem appropriate (i.e., injunctive relief, fines, etc.). Scheduling a meeting with the court also allows the magistrate or the judge and the township enforcement officer to build a relationship and educate each other. The court can assist with informing the township officer of what the court expects to see when presiding over a civil infraction citation case. On the other hand, the township officer can educate the court on the township’s interest in pursuing this process and the township’s specific ordinances.
- If Injunctive Relief is Desired, Request It: A civil infraction will often simply result in fines to the violator unless the township requests an injunction. If the goal is to clean up the violation, be sure to request specific injunctive relief. This can be noted on the civil infraction citation in the detail/remarks section. This can also be raised as requested relief by the township at the informal hearing.
- Pursue Compliance with the Order (through contempt proceeding or additional tickets): Once an order is entered, the township should calendar the compliance dates and pursue compliance with the order. If compliance is not met within the time periods set forth in the court’s order, the township can contact the court, pursue contempt proceedings or issue additional tickets. Each court may have a preference, and thus discussing this part of the process with the court is also important. It can avoid expensive motions and contempt proceedings if the court will issue notices sua sponte (i.e., on its own). Many ordinances also provide that every day a violation continues is another violation. Thus, multiple tickets issued may get the attention of the property owner. It is important to be reasonable, however.
If townships first implement a civil infraction enforcement process and then incorporate these ten strategies, the township can see timely results without the costs experienced in misdemeanor actions or seeking injunctive relief in circuit court.
— Christopher S. Patterson
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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
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