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Laws that apply to townships are changed frequently by the Legislature and the courts. This month’s E-letter focuses on decisions handed down by the Michigan Court of Appeals that may cause changes as to how some townships are currently operating. Some of the most interesting decisions from the last year address the enforcement of blight ordinances, unlawful searches and seizures, township emergency responders, and defamation claims against township officials.
Township Can Learn from Municipal Searches for Stray or Unlicensed dogs.
Many townships have ordinances in place that include penalties for violations, including misdemeanors, civil infractions, and injunctive relief. There is a key component to proving any violation: evidence. A township seeking to enforce its ordinance must obtain the necessary evidence to show that a violation exists.
Often, complaints regarding alleged violations stem from neighbors or are observed by a township official from the public right-of-way. These violations can be proven by collecting information regarding the violation from the roadway or the neighbors. This might include photographs or testimony from the neighbors. Other times the property owners understand a violation exists and consent to a visit and inspection of the property.
But, not all violations are easy to prove. For instance, sometimes blight is not visible from the roadway. It is blocked by buildings, trees, or fencing on the property. Even in these scenarios a violation of the blight ordinance may exist, but the complainant may be the neighbor and the full extent of the blight and junk stored on the property is not visible from the public right-of-way or the neighbor’s property.
Township enforcement officers can ask the property owner for permission to view the potential violations, but if denied, what next? Can the officer just search the property? A recent court case illustrates the long-standing principle that warrantless searches are unconstitutional, unless certain exigent circumstances exist (which is the rare case for municipal ordinance enforcement). A local unit dealing with issues of how to regulate and limit stray and unlicensed dogs adopted an ordinance allowing animal control officers to capture and impound stray dogs. One ordinance provision permitted officers to enter “any . . . real property within the City for the purpose of capturing, collecting, or restraining any animal.” This provision allowed animal control officers to enter private property, but did not include any warrant requirement.
The Court found the provision allowing animal control officers to enter private property without a warrant unconstitutional. The Court found that the provision violated an individual’s 4th Amendment rights and a municipality does not have authority through its ordinances to abridge that right. This decision is a reminder that not even an ordinance can authorize warrantless entry onto private property.
Despite the ruling, township code enforcement officers still have multiple avenues to obtain evidence to prove a violation of an ordinance. The officer can obtain express consent from the property owner. Although this seems unlikely, it is surprising how many property owners are willing to cooperate with a township when both parties remain cordial and respectful. Code enforcement officers may inspect from the public right of way, gather evidence through satellite imagery, or view the property from consenting neighbors’ yards. When needed, code enforcement officers can obtain an administrative search warrant if a proper request is made with the local district court. This would allow a search of the property even though the property owner has not provided express consent. Hardrick v City of Detroit, Sixth Circuit Court of Appeals (November 22, 2017).
Public Safety is Paramount for Emergency Responders, even Without a Contract.
Townships have authority to provide fire, police and emergency services under state law. Specific statutes authorize a township to operate police departments, fire departments, and ambulance emergency services. Townships can also operate the departments jointly with other municipalities or establish local authorities that provide the same services. When an incident arises, those departments are dispatched by a central (911) dispatch unit under state law.
State law provides the methods for central dispatch units to request that certain emergency responders respond to an incident. One of those methods allows the central dispatch unit to dispatch “the appropriate available public safety service unit located closest to the request for public safety service.” Notably, the language does not include any reference to municipal boundaries, and emergency responders likewise do not focus on municipal boundaries. Emergency responders focus on the incident at hand and respond to those calls regardless of location. This is a commendable action from emergency responders, who hold the public safety of the local community as the paramount objective.
In one community, a county 911 central dispatch unit dispatched emergency responders based on whether the responders were “closest to the request for public safety service.” It happened that a city and a township bordered each other near a public school where several emergency incidents occurred, and both municipalities had fire and emergency services available. But the school was technically located within the city’s boundaries.
During several incidents, the county central dispatch unit requested that emergency responders in the township respond to emergencies at the school within the city. The city actually argued that only the city responders should be permitted to respond to emergencies within the city’s boundaries. The Court made clear that the central dispatch unit was permitted by state law to dispatch the closest available unit. There was no statement in the state law that required central dispatch to only ask the city to respond to those emergency responses within the City’s boundaries.
The Court’s decision highlights that the paramount concern was ensuring the quickest response times by emergency responders to the incident. The Court also held that a contract between the township and the school district or a contract between the township and the city was not necessary for the township to respond to incidents within the city’s jurisdiction. City of Potterville v Eaton County, Michigan Court of Appeals (November 21, 2017).
Ordinance Enforcement through Civil Infractions has Advantages over Misdemeanors.
Previous E-Letters have regularly highlighted a consistent line of court decisions where a township is challenged by a property owner concerning nuisance ordinance, blight ordinance, or dangerous buildings ordinance. Those decisions have generally been upheld by the courts as appropriate actions under the township’s police powers and related state statutes. In an interesting twist, the Court of Appeals recently considered the ability of a township to seize junk automobiles from a property and remove them to storage. The details surrounding the seizure of the automobiles highlights the potential pitfalls of misdemeanor enforcement that our previous E-Letters have discussed.
A township discovered a property with alleged junk automobiles. Notice was sent to the property owner seeking compliance. The township then issued a misdemeanor citation for violation of the township’s junk automobile ordinance. Prior to any hearing on the misdemeanor, the township entered the property and seized the vehicles, which were impounded.
When the property owner attempted to obtain return of the vehicles, he was informed that he has to pay all impoundment fees. The property owner refused to pay the fees and further argued that not even all of the vehicles were in violation of the township’s ordinance. That dispute caused the litigation, wherein the property owner challenged the seizure and the responsibility to pay the fees.
The Court pointed out that the township seized the vehicles without any authority. According to the township, it had authority under its ordinance, but the Court disagreed that the language applied to private property. The property owner even pled guilty to a violation of the ordinance, but the Court held that nothing in the township ordinance permitted seizure.
Does this mean seizure of vehicles in violation of a junk vehicle ordinance is prohibited? Certainly not. But this case illustrates two key components of effective ordinance enforcement. First, the township should verify with legal counsel that it has authority under a statute that authorizes the seizure or removal of a person’s property before doing so. If there is no statute on point, the township should refrain from removing personal property without a court order. Here, the township removed the alleged junk vehicles after it issued its misdemeanor citation, but apparently not before the court ordered such removal.
Second, the township relied on misdemeanor prosecution, which makes obtaining injunctive relief much more difficult. The civil infraction citation process is specifically designed for these types of situations. The state law that establishes the civil infraction system (and the individual ordinances adopted by those townships that use it) specifically address the authority vested in the district court to order injunctive relief to resolve the ordinance violations. Therefore, the township could have issued a citation and requested a formal hearing before the court. At the hearing, the township could have shown the specific vehicles that violated the ordinance and sought a court order allowing removal of those vehicles. The cost of removal could also have been required to be paid by the property owner.
Thus, many townships that are actively enforcing their ordinances should evaluate whether converting to a civil infraction citation process better achieves the desired results. Reid v Thetford Township, Michigan Court of Appeals (May 25, 2017).
Official Report Prepared by a Building Official is Immune from Defamation Claims.
Township officials often assemble reports and memorandums that are provided to the official’s township board or other departments of a township to carry out the township’s governmental function. Such reports and memorandums can often form the basis for government decisions that have substantial impacts. In other situations, the statements are disbursed to the general public, and the statements may have a potential impact on the person that is the subject of such statements.
The Court of Appeals recently addressed a situation where a property owner brought a defamation claim against a building official for statements prepared in a report. According to the property owner, the statements were false and allegedly caused damage to his reputation and business. He brought claims against the building official.
The Court found that the statements within the report were “absolutely privileged.” This means that the statements were not subject to a defamation claim regardless of whether they were true. To be considered an absolutely privileged communication, the context of the communication is important. The privilege has been extended to cover communications of public officials so long as the communication “is in furtherance of an official duty during proceedings of subordinate legislative and quasi-legislative bodies.”
In this case, the Court found that the building official prepared the report in his official capacity to inspect violations of the zoning ordinances and other ordinances of the municipality. The report was also prepared to provide a record of the building official’s observations and actions to the Township Board and requested guidance as to how to address certain ordinance violations in the future. The Township Board was provided the report for consideration during its public meeting. Given these circumstances, the Court found that no defamation claims could be brought in court.
This is another reminder that state laws are designed to let township officials carry out their official governmental functions. Some individuals may not agree with the results, but it does not mean that the municipality or the individual building official should be liable for any wrongdoing. Even so, this ruling has its limits and township officials should always act in good faith when carrying out their governmental functions. FJN LLC v Parakh, Michigan Court of Appeals, (June 22, 2017).
– 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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