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Should Your Township Use “Self-Help”?

In this month’s E-Letter we discuss whether a township can enforce its ordinances without involving a court. Often zoning ordinances, nuisance ordinances, and other police powers will purport to contain a “self-help” provision stating that a township can enforce an ordinance violation simply by giving notice to a landowner and an opportunity to be heard. While these provisions can still be found in modern and historical ordinances—except when explicitly provided for in statute—we continue to recommend that townships enforce their local ordinances via the civil infraction process.

Tensions and property disputes around the country are on the rise. When confronted with an unfriendly resident next door, residents are increasingly taking the “Sue Thy Neighbor” approach. The dispute could be about trees, fences, or trees. Or they could be issues affecting multiple people like noise, blight, or junk and debris.

Consider the following imaginary situation: A property is locally famous for its unkempt nature and an ever-increasing quantity of junk vehicles. It seems with each day more debris and junk arrive at the premises. For each vehicle eventually sold or removed, two more appear. Neighbors are frustrated and upset. They are demanding action from local officials. A particularly adventurous member of this citizen group points out a provision authorizing the township to find the property in violation, declare a nuisance per se, and remove the vehicles, junk, and debris. All with no need to go to court.

Now they are looking to you, the local official. Should you hire a junk hauler to clean up the property and throw away the trash? Should a tow truck come and remove all the inoperable motor vehicles? What’s an official to do?

Does Your Township Ordinance Say This?

A provision for direct, local enforcement may come in several different shapes and sizes. Our fictional citizen group might have found a provision saying something similar to this:

The Township Board may undertake to correct a nuisance violation and to assess the land or premises for the cost thereof. This remedy shall only be used after notice of intent to proceed under this section is given to the owner of record at the last known address and said landowner may dispute whether the condition or use of land is started, continued, or changed in violation of any provisions of this Ordinance.

The imaginary example above is what we consider a standard “self-help” provision in an ordinance.

What is self-help? It essentially means that a township will correct violations of its ordinances itself, without court interference, as long as requirements such as notice and a hearing are correct. Notice and a hearing are the essential elements of due process. As our Supreme Court has explained, the “essence of due process is the requirement that a person in jeopardy of serious loss [receive] notice of the case against him and opportunity to meet it” so that “those who are to be heard [are] given a meaningful opportunity to present their case” before they are assessed a fine or permanently deprived of their property. Bonner v City of Brighton, 495 Mich 209, 238–39 (2014). The provision conceived above seems to do so; the landowner is given a notice and the ability to argue his case before the township board. So far—so good?

What Does This Language Mean?

In the typical case, a nuisance is determined by a court. In the “self-help” context, the local government is declaring something as a nuisance themselves. By taking authority to declare a building or land use a “nuisance,” the township is also taking the risk of that determination. In some cases, this is explicitly authorized by statute.

Blighted and dangerous buildings are conditions that can require a municipality to take swift action, since moderate blight is usually quickly followed by severe blight. Buildings themselves can become dangerous and a threat to public safety. The State Housing Code also permits an appropriate public official to order a building that is detrimental to life or health to be removed or abated. MCL 125.486. This can be done without needing court involvement—in exceptional circumstances. In one case, the City of Saginaw acted under an ordinance authorizing the emergency demolition of a dangerous building when they demolished a vacant home whose basement wall had given way. Hescott v City of Saginaw, 757 F3d 518, 521 (2014). In another case, the City of Akron demolished a two-story building that the chief building inspector “believed was dangerously close to falling” on the street and an adjacent home. Harris v City of Akron, 20 F3d 1396, 1398 (1994). It was demolished the same day. Id.

Another specific area where self-help often occurs is tall grass and noxious weeds. State law specifically defines noxious weeds. MCL 247.62. Townships and other municipalities may appoint a qualified individual to inspect and investigate their boundaries for noxious weeds and prevent their spread. MCL 247.61, MCL 247.63. If an owner of subdivided land fails to destroy weeds found on their property, then the municipality “may enter upon the lot and destroy noxious weeds by cutting.” MCL 247.64(2). Ordinances and procedures implementing control of weeds and tall grass are a “proper exercise of municipal police power” and due process does not require a “pre-abatement hearing.” People v McKendrick, 188 Mich App 128, 138, 141 (1991) (grass taller than seven inches violated local ordinance).

However, these examples are the exception rather than the rule. A broad authorization to abate all manner of blight and nuisance is not provided for in statute. Returning to our imagined junkyard with debris and vehicles, there is no statute similar to noxious weeds specifically authorizing municipalities to remove said junk and debris. Additionally, although certainly an issue of public welfare, nuisance conditions are not an exigent circumstance with emergency risk of damage to the public like a dangerous building in danger of collapse.

In short, while such general and broad “self-help” ordinances certainly exist, there is no clear and specific statutory authority for such a broad self-help provision. This means that the authority to carry out such a provision is only implied, meaning that the authority that exists in practice will be up to the determination of the court.

And even where the municipality has a legitimate basis to move forward, risks abound. By taking the initiative and authority to remove a nuisance, the township accepts more risk. First is ensuring due process is properly observed. This may require engaging in a three-part balancing test examining the private interest affected, the risk of an erroneous deprivation as well as the value of additional procedural safeguards, and the government’s interest and burdens. Mathews v Eldridge, 424 US 319, 333-35 (1976); In re Sanders, 495 Mich 394, 411 (2014); see Bonner, 495 Mich at 224 n 34.

Second, there is the risk of an incorrect decision. With dangerous buildings, public safety is directly imperiled, and the township’s decision may be simple and compelling. With blight it is much easier to argue that one man’s junk is another man’s treasure. Even when the correct decision is made, a municipality may still face damages and litigation. For example, in Hescott the property owner sued for inverse condemnation and destruction of his property when the city destroyed his vacant rental property. Hescott, 757 F3d at 521. In that case, the “jury reached a unanimous verdict” that “exigent circumstances justified the demotion” of the rental house. Id. The city was correct. However, it did not account for the fair market value of aluminum siding that “was hauled away and discarded.” Id. Therefore, the landowner was a “prevailing party” in its federal litigation (even though a jury later determined the home was properly destroyed) and entitled to a calculation and award of their reasonable attorney fees. Id. at 530.

Finally—as these cases illustrate—self-help often does not save the township the costs of going to court. In Bonner, although the city sought to use an administrative process, it “subsequently filed its own complaint against plaintiffs” for an injunction, enforcement of the ordinance, and an order requiring demolition of the structures. Bonner, 495 Mich at 218. Similarly, a Township attempted to use a hearing before their township board to abate junk, debris, and other nuisances but ultimately “filed an action in the circuit court” alleging a violation of their blight ordinance. Twp of Oceola v Nowacki, unpublished per curiam opinion of the Court of Appeals, issued April 15, 2021 (Docket No 351914), p 1. Even when trying to avoid the time and expense of court, a township may ultimately find itself initiating litigation.

Returning to our imagined situation above, the township may find itself sued by the landowner for the permanent destruction of his “treasured” automobiles. He may even admit that some of the junk was junk—but that the township violated his property rights by not paying him the scrap metal costs. While he is suing the township, he may even assert the township should pay his attorney fees in recovering the value of his property.

The point of all of this is to say that a broad ordinance example as used above has a very rocky basis for authority. When your township decides to include language that is rocky and subject to a stretch in interpretation, it leaves open the possibility that the ordinance will be challenged. Fortunately, there is a better way.

What is the Best Way to Accomplish Your Township’s Enforcement Goals?

There are three commonly used options to enforce ordinances: civil infractions, criminal misdemeanors, or injunctive proceedings. Misdemeanors were the default enforcement method. This requires filing a complaint in Circuit Court—which must be prepared and prosecuted by your municipal attorney. An injunction proceeding was also traditionally filed by the township attorney in Circuit Court.

Now, however, townships are able to issue municipal civil infractions. MCL 41.183. See also MCL 600.8703, MCL 600.8707. Where self-help authority is a patchwork at best, municipal civil infractions have a robust authority and procedure in both the law of the judiciary and township statutes. Additionally, there are other statutory tools that can be deployed in specific circumstances. When faced with a dangerous building, look to the explicit prohibition in state law. MCL 125.538. The township can then follow the specific procedure provided for in statute. MCL 125.539 et seq.

Civil infractions are a newer tool, but their effectiveness has made them increase in popularity. They combine the efficiency of self-help procedures—a streamlined hearing process—while reducing risk to the township because the hearing results in an order issued from the District Court. Additionally, the township may also seek injunctive relief. Finally, if a case warrants it, the township may also still engage the township attorney to assist with more difficult matters but without the Circuit Court and its attendant time and complexity.

Even using “self-help” the township must provide due process and an opportunity to be heard. At a minimum, this means warning and violation letters as well as time before the township board with a presentation establishing the violation. These are the same steps used in the civil infraction—just in the courthouse instead of the town hall.

Making building and zoning violations decriminalized through this process can be of significant benefit to the township. Informal hearings can be used instead of jury trials, which saves the township time and money. The code enforcement officer presents the facts to a magistrate. It is a quicker and more flexible process. Possibly most importantly, the main goal of enforcement is compliance, and civil infractions can be an effective means to obtain an abatement of minor violations.

In conclusion, self-help carries financial and procedural risks for a township. These risks can be mitigated or avoided entirely by using the civil infraction process for the majority of nuisance, blight, and zoning violations. Self-help is recommended only when there is little risk and a recognized procedure—like tall grass where the township can point to a specific statute and the value of the property “taken” (i.e. the grass clippings) is low. Otherwise, utilize these tested and proven procedures with strong foundations in state law.

For more insight and tips on using civil infractions see our E-Letters Ten Strategies for Effective Ordinance Enforcement and Getting the Most out of Civil Infractions: Violation Notices, Informal Hearings, Warning Letters and Consent Judgments. And if there is any concern or uncertainty, place a call to your township attorney—sooner rather than later.

 

By Matthew A. Kuschel 

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.

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