Zoning Litigation – Enforcemen...
Introduction As we have explained at length in prior E-Letters, the enforcement of zoning violations is often best accomplished through the ...Read More
We are involved in our communities, our profession, and our clients' associations and activities.
Many townships have adopted municipal civil infractions ordinances to provide for the streamlined enforcement of township ordinances in district court. However, even with this simplified process, enforcement can be an uphill battle. This E-Letter explores a few lesser-known tips and strategies that can save time and money while still getting results.
While the default prosecution method under Michigan law is misdemeanor enforcement, a township can, by adopting a municipal civil infractions ordinance and amending the penalty sections in its zoning and/or police power ordinances, use the simpler enforcement process available for municipal civil infractions. Using this process, a township can issue civil infraction notices or civil infraction citations, prosecute violations via formal or informal hearings, and strategically leverage its legal counsel to obtain results without court intervention.
If your township has not yet adopted a civil infractions ordinance, or if you are interested in a more detailed look at the civil infractions process and how to enforce ordinances using the same, please refer to our 2017 E-Letter, “Ten Strategies for Effective Ordinance Enforcement.”
One often underutilized tool is the municipal civil infraction notice. Under state law, a county, city, village, or township may establish a “municipal ordinance violations bureau” by ordinance to accept responsibility for civil infraction notices and collect fines for the same. MCL 600.8396. Municipal ordinance violations bureaus are generally established in the same ordinance that adopts the civil infraction process in a township—you might have one and not even know it!
Although it might sound like quite an undertaking to establish a new bureau within your township, you can use existing facilities and personnel—we frequently see ordinance violations bureaus located at the township hall and under the supervision of the township clerk. As explained below, there is very little that goes into operating such a bureau, so we typically do not find that it creates an unnecessary burden for the township clerk.
Once a township has established a municipal ordinance violations bureau, it can begin issuing municipal civil infraction notices. This differs from the process used for municipal civil infraction citations in a few important respects.
While fines awarded under civil infractions citations are paid to the district court with the potential for a County to then distribute some minimal payment to the issuing municipality, civil infraction notices are payable in full directly to the township. This means that when a civil infraction notice is paid, the township will retain 100% of the fine. This does better assist with offsetting the costs for ordinance enforcement, which can be costly depending on the nature of the case or circumstances.
Additionally, civil infraction notices have no mechanism for disputing the civil infraction, and municipal ordinance violations bureaus have no ability or authority to adjudicate responsibility for a civil infraction. A person who is issued a civil infraction notice has only three options: 1) admit responsibility and pay the fine; 2) admit responsibility with an explanation and pay the fine; or 3) disregard the civil infraction notice. If the defendant is unwilling to admit responsibility and resolve the violation, the Township would then file a civil infraction citation.
So, why are civil infraction notices useful? First, they put the entire fine in the township’s pocket, which can help offset enforcement costs. Second, they can be issued and paid without the involvement of the township attorney or the district court, which cuts down on costs and complexity. Third, they can be a valuable step in the code enforcement escalation continuum, falling between a warning letter and a formal civil infraction citation. While some defendants will always fight enforcement until the bitter end, a simple civil infraction notice can often be sufficient to convince well-intentioned residents to correct minor violations. Especially for first-time offenders, a civil infraction notice may be enough of a push to gain compliance without resorting to more involved enforcement mechanisms. Finally, civil infraction notices can be used in later proceedings in district court after a citation is issued to demonstrate both the reasonableness of the enforcing agency (e.g., that the township attempt to resolve the matter without court involvement) and the unreasonableness of the defendant (that the violation has persisted despite enforcement efforts).
For these reasons, the humble civil infraction notice should not be overlooked.
Unless an alleged violator admits responsibility and pays the fine, a civil infraction citation will result in either a formal or informal hearing, with the default typically being an informal hearing unless either side requests a formal hearing. In an informal hearing, the administrator or code enforcement official acts as the prosecuting attorney for the township, and typically appears before a district court magistrate to present the township’s case. Although this can be a very daunting undertaking that many would prefer to avoid, enforcing violations through informal hearings can save your township thousands in enforcement costs while still yielding effective results. Here are a few tips to get you started with informal hearings:
a. Develop a thorough record
At an informal hearing, you will need to prove “by a preponderance of the evidence” that the defendant committed the alleged violation. That means that it is your job to convince the magistrate or judge that it is more likely than not that the defendant violated the township’s ordinances. How do you do this? Through evidence.
The most effective and efficient way to prove most violations is through photographic evidence. For best results, be sure to thoroughly photograph the ordinance violation on the same day you issue the civil infraction citation. The court will typically examine whether the alleged violation existed on the day the citation was issued, so taking photographs immediately before or after you issue a citation will leave little room for doubt. If you have a camera that automatically date-stamps photos, all the better.
If there is a violation that is difficult to access to properly photograph, such as one that is in a rear yard or otherwise not visible from a road or driveway, you can ask neighbors (especially if they are the ones that complained about the violation) if you can take photos from their property. If that isn’t enough, you can work with the township attorney to obtain an administrative search warrant from the court to access the property and photograph the violation. To obtain an administrative search warrant, you will need to have probable cause that a violation exists. If you are concerned about confrontations when executing an administrative search warrant, your local sheriff or police department may be able to send a deputy or officer to accompany you.
Another way of proving an ordinance violation and swaying the district court to your side is through witness testimony. In your role presenting the case on behalf of the township, you can present witness testimony to establish violations or the harm that a violation has on your community. This can be especially useful for violations that cannot be proven purely through a photograph, such as noise ordinance violations, violations that are no longer ongoing when you inspect the subject property (such as an illegal business), or violations that require proving that a condition has existed for a certain amount of time (e.g., a vehicle that has been inoperable for over 60 days). If there are neighbors that are invested in the outcome of the case, it never hurts to ask if they will testify on behalf of the township at an informal hearing. Their testimony can establish crucial factual aspects of your case and can also garner sympathy from the magistrate or judge by showing first-hand the negative impact of the violation in question.
Finally, a good paper trail is always useful in prosecuting an ordinance violation. This would include warning letters, notes from site visits, and civil infraction notices issued before the civil infraction citation. These records can help show both the continuing nature of a violation (e.g., that the township has been trying to resolve this for months) and that the township has been reasonable in providing ample opportunities for voluntary compliance before availing the court for assistance.
b. Injunctive relief
The end goal of most enforcement actions is compliance with the township’s ordinances, not the mere payment of a fine. To obtain compliance, it is often necessary to seek injunctive relief, or a court order directing a defendant to remedy an ordinance violation. Convincing a magistrate or judge to issue a cleanup order can sometimes be difficult, so we have a few helpful suggestions.
First, we find it best to alert both the defendant and the district court that you will be seeking a cleanup order as early as possible. To do this, we recommend noting: “injunctive relief requested” in the description section of the citation.
Second, it may be necessary to educate the magistrate or judge on the district court’s authority to issue injunctive relief. In most cases, the authority to issue injunctions lies with the circuit court, not the district court, but Michigan law empowers the district court with injunctive authority in limited circumstances, including when an injunctive order is “necessary to enforce [an] ordinance.” MCL 600.8302. If there is any question as to the district court’s power to issue an injunction, it may be helpful to direct the magistrate or judge to this statute.
Third, you should know exactly what relief you want before the informal hearing so that you can request it with specificity. Helpful information to include in your request could be a specific action the defendant needs to take to abate the violation (e.g., remove all junk vehicles from the property), a specific deadline for the defendant to abate the violation, and specific penalties if that deadline is not observed. Penalties for noncompliance could include a daily fine, contempt of court, or the authority for the township to clean up the violation and charge the costs against the defendant (in which case you should also request that these costs be assessable as a lien against the defendant’s property).
If all this seems like a lot to keep track of, you can have your attorney prepare a draft order containing findings of fact and injunctive orders for you to present to the magistrate at the conclusion of the formal hearing. This will be more convenient for the magistrate or judge (all they need to do is sign the order) and will ensure you receive all of the relief to which you are entitled.
c. Default judgments
In our experience, district courts are often uncertain about what to do when a defendant doesn’t show up to an informal hearing. We’ve seen everything from hearings simply being adjourned to a later date to bench warrants issued for the defendant’s arrest! However, in these circumstances, the appropriate remedy under the Michigan Court Rules is a default judgment.
Pursuant to Rule 4.101 of the Michigan Court Rules, if a defendant fails to appear or respond to any matter pending relative to a civil infraction action, the court must:
(a) enter a default against the defendant;
(b) make a determination of responsibility, if the complaint is sufficient;
(c) impose a sanction by entering a default judgment; and
(d) send the defendant a notice of the entry of the default judgment and the sanctions imposed.
See MCR 4.101(B)(4).
This means that if a defendant does not attend an informal hearing, the district court magistrate or judge is required (the word “must” in the Court Rule denotes a mandatory duty) to enter a default against the defendant and impose a sanction by entering a default judgment which may include fines, court costs, and an abatement order. If you are proceeding in an informal hearing and the defendant fails to appear, we recommend directing the magistrate or judge to this court rule and requesting a default judgment in favor of your township. You will want to also ask the magistrate or judge if the order can not only include the fines provided for under statute, but also indicate the relief requested (i.e., clean up the trash bags on the front driveway).
d. Keep it in perspective – the stakes are low!
Lastly, it may provide peace of mind to know that if you do not prevail at an informal hearing, you can always appeal the decision. Under Michigan law, when a township appeals an adverse decision at an informal hearing, the result is a brand-new formal hearing in front of a district court judge. See MCL 600.8819(5) (“The plaintiff or defendant may appeal an adverse judgment entered at an informal hearing”). No matter how badly the informal hearing goes, the township will always have the option to start fresh with a formal hearing in front of a new decision-maker.
Therefore, a township risks very little in pursuing violations through informal hearings. If the violation in question is important to the township and the informal hearing goes poorly, you can forward all of your supporting documents to the township attorney and instruct them to file an appeal and prosecute the violation via a formal hearing. One important thing to note: the appeal will still be on the same citation, so it is vitally important to ensure that a thorough record of the violation is developed, as discussed above, so that the township attorney has everything they need to prove their case.
The last helpful tip we have relates to effectively utilizing the assistance of the township attorney in enforcing ordinance violations. While the township attorney can certainly prosecute formal hearings on behalf of the township, there are also other more cost-effective ways they can help you obtain results without having the township attorney travel to court and argue a formal hearing.
We find that warning letters on the township attorney’s letterhead can often be another useful step in the escalation of the code enforcement continuum. Warning letters can be prepared with relatively little effort by your township attorney and can produce results that might otherwise not be forthcoming. While some violators are perfectly content to ignore warnings from a township, a letter from a law firm can sometimes be just the right amount of pressure to encourage compliance from an otherwise stubborn defendant.
One of the most powerful and efficient code enforcement tools is the consent judgment. A consent judgment is essentially a settlement agreement that is signed by the parties, entered by the district court and possesses all of the power of a court order. After you file a civil infraction citation, the township attorney can always contact the defendant (or the defendant’s attorney) and negotiate a consent judgment to resolve the case before it proceeds to a hearing, regardless of whether a formal or informal hearing is requested.
The terms of a consent judgment can include whatever the township and defendant find agreeable, but will typically contain the following:
Keen readers may notice that this list of terms contains essentially the same relief that the township would request in an injunctive order, as explained in Subsection 3.b above. What this means is that in exchange for some comparatively minor concessions (such as the waiver of nominal fines and some additional time to correct the violation), the township can receive best-case-scenario results without the hassle, expense, or uncertainty of a hearing.
There are three main reasons why the consent judgment is such a powerful tool. First, most people generally have a strong aversion to going to court and are often eager to agree to correct violations to avoid this outcome, even if they have to agree to significant penalties for failing to comply later on. Second, consent judgments are very flexible. There is no set formula for a consent judgment, so it can be drafted in any way that is necessary to address the needs of both parties. This allows for creative problem solving and compromise. Third, once a consent judgment is entered, it contains the full force and effect of a court order, such that failing to comply can result in the imposition of fines, further injunctive relief, and even imprisonment!
For these reasons, consent judgments can be instrumental in efficient and effective ordinance enforcement. While not every defendant will be willing to agree to a consent judgment, we find that it is almost always worthwhile to direct your township attorney to reach out to a defendant before a formal or informal hearing to test the waters and see if the matter can be resolved without a hearing.
These tips and strategies, if properly implemented, can assist your township in leveraging enforcement efforts to get the most out of the civil infraction process.
By: Jacob Witte
This publication is intended for educational purposes only. 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.
Introduction As we have explained at length in prior E-Letters, the enforcement of zoning violations is often best accomplished through the ...Read More
Yes. MCL 15.235(2) lists the options for responding when in receipt of a request made under the FOIA. The FOIA permits a public body to resp...Read More
We have discussed the Freedom of Information Act (the “FOIA”), Act 442 of 1976, MCL 15.231 et seq., before in other e-letters, including...Read More
At Fahey Schultz Burzych Rhodes PLC, we’ve been helping municipalities, franchised businesses, employers, and more with their legal needs since 2008. We’d love to learn how we can help you, too.