Act 188 of 1954 (“Act 188”) is a statute that many townships use to finance many improvements using special assessments ranging from lak...Read More
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Congratulations! You have made it through the hardest part of ordinance enforcement by obtaining a judgment. But now what? Often obtaining the judgment is not the final step in the process. Many times parties remain at a disconnect following a Court’s final order and compliance does not come voluntarily.
This E-Newsletter will examine the appropriate steps a township should consider prior to obtaining that final judgment in an ordinance enforcement matter that puts a township in the best position post-judgment. This E-Newsletter further explores what are the next steps that a township should consider taking or be prepared to take after obtaining a judgment. There are certain actions that can coerce compliance with a court’s grant of injunctive relief, fines, and attorney fees. Learn those actions and more for current enforcement or future enforcement cases.
Setting up a Judgment for Success
Prior to obtaining a judgment, there are a few items that each township should consider for post-judgment success. In a perfect world, everyone complies with the judgment, the case is over, and no additional action is necessary. Unfortunately, we live in an imperfect world where not everyone complies with court orders.
To try to avoid these issues, townships should consider the specific remedies and results they expect from a judgment. For instance, the township will want to consider whether stating “clean up the yard” is sufficient to match the township’s expectations. Instead, the township should ensure the judgment specifically states the type of items that need to be removed, as well as the time frame. This can be addressed by ensuring that appropriate requested remedies are raised with the court before any judgment issues. The court will also prefer the added benefit of having a list of items and supporting photographs. The court is often left without the firsthand knowledge of seeing the property. Thus, the township will want to assist the court by providing such a list and having photographs of the property itself or the area that needs to be remedied and addressed in the judgment.
Additionally, deadlines for complying with the judgment are crucial. The judgment should contain specific provisions setting forth when the other party must comply with various aspects of the judgment and the consequences for failing to meet the required deadlines. Daily fines for noncompliance or giving the Township authority to abate the nuisance on its own and without further action by the court are effective provisions to place in a judgment regarding missed deadline. Depending on the type of dispute, other provisions may also be necessary, such as a legal description of the property, to ensure the order is specific and clear the way for placing any township costs as a lien on the property. Lastly, it is recommended that the township specifically indicate in the order that the Court retains or has continuing jurisdiction over the matter so that disputes or noncompliance that arise later can be addressed before the same court.
Potential Post-Judgment Appeals
After obtaining a judgment from a court, there is a period where the property owner may file an appeal. If an appeal is filed, a township should consult an attorney on whether to continue to move forward with enforcement. Additionally, legal counsel should likely be retained to assist in the appeal process.
There may be some cases where it is prudent to seek enforcement of the order while an appeal is pending, and other matters where the township should wait until the appeal has been resolved. Generally, an appeal does not prevent the township from enforcing a court order and, therefore, the township will likely be able to move forward with the judgment. If planning to move forward with enforcement, the township should keep in mind that enforcement could be delayed during the pendency of an appeal.
Keeping Track of Township Wins
The township should track each of its cases with entered judgments and track the progress of those cases. The township official can also monitor when deadlines for self-help may trigger and all costs associated with the enforcement of the judgment.
The township should make sure to follow-up and act on any self-help provisions in the order. Any necessary third parties, such as contractors, should be obtained and utilized in a timely fashion. If the township does begin to enforce provisions of the order, then it is highly recommended the township provide notice and communicate with the property owner. For example, it would be prudent to inform the property owner that the township is selecting a contractor or approving a contract for services. This may encourage the property owner to do some work on their own, but at the very least makes the property owner aware of what is going on and demonstrates openness and transparency by the township. If there are any post-judgment actions with the court, the court will appreciate the township’s communication with defendant.
When you have a non-compliant property owner, townships should seek legal counsel as each matter has its own separate facts and could require a unique direction for obtaining compliance. There are a few steps that can be generally taken by townships facing intractable defendants.
The township could contact the court or issue a notice regarding non-compliance. The court may then have specific instructions for how it wishes that the township proceed. A township can also file post-judgment motions, such as: a motion for contempt, motion for show cause, or a motion to enforce or seek compliance. Each motion may have unique requirements. For example, certain motions require personal service. Each motion opens the door to different types of remedies; some may place the property owner in criminal contempt or civil contempt while others may allow the township to seek sanctions. When moving forward, the township should be prepared for multiple hearings and be aware that they are subject to the court’s scheduling.
It is recommended that enforcement of a judgment is pursued and not delayed. Of course, the township should act in a reasonable and prudent manner when handling enforcement proceedings, but multiple delays, extensions, and waivers could give the indication to a court that the nuisance or problem is unimportant to a township and unnecessary to abate. Instead, only minor extensions should be granted. Any extensions that are granted should be kept track of and the timeline of the extensions then enforced.
The war is almost won – you have your judgment. Most of the time, property owners will comply with a court order. If not, do not worry. You have multiple avenues and steps to ensure that your township obtains the necessary compliance. If you do have concerns regarding compliance from an obtained judgment, attorneys at Fahey Schultz Burzych Rhodes are able to assist you and your answer questions.
Special Bulletin: Michigan Tax Tribunal Deadlines in Light of Covid-19
The normal deadline for filing Tax Tribunal appeals is May 31st for commercial and industrial appeals and July 31st for residential and agricultural appeals. On May 14th, Governor Whitmer signed Executive Order 2020-87, which extends Tax Tribunal appeal filing deadlines in the wake of Covid-19. The order extends the deadline to file commercial and industrial appeals to July 31st but does not affect the July 31st deadline for residential and agricultural appeals. The Executive Order also requires July Boards of Review to hear assessment challenges from individuals who were unable to submit challenges at March Boards of Review.
In addition to the Executive Order, House Bill 5766 was introduced on May 7th and has since been passed by the House of Representatives and also by the Senate on May 28. If enacted as currently written, the bill would extend the filing deadline for Tax Tribunal appeals for commercial, industrial, residential, and agricultural appeals to August 31st (a month later than the current deadline under E.O. 2020-87). Fahey Schultz Burzych Rhodes will continue to monitor changes to the Tax Tribunal appeal filing deadlines.
Join Us at Noon Soon, on Zoom!
We weren’t able to do our MTA 2020 You Be the Judge Session as planned, but we’re not letting that stop us! When we asked you to submit legal questions about Township issues (for a chance to win a $100 Visa gift card), the response was tremendous! So, we’re inviting you to join us for a “live” one-hour Q&A session via Zoom. Go to the Zoom link below on Wednesday, July 15, 2020 at Noon to get real answers to those legal questions from the expert counsel provided by our team of Township attorneys at Fahey Schultz Burzych Rhodes PLC.
US Toll-free: (888) 475-4499
Meeting ID: 857 7132 4807
– Matthew Kuschel and Brittany Nichol
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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.
Copyright © 2020 Fahey Schultz Burzych Rhodes PLC
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