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Introduction

As we have explained at length in prior E-Letters, the enforcement of zoning violations is often best accomplished through the streamlined municipal civil infractions process. This process is simple, cost-effective, and quick. However, due to its simplicity and the limited nature of the proceedings before the district court, civil infractions are not always the best fit for certain zoning enforcement cases. This E-Letter will explore the ins and outs of bringing a zoning ordinance enforcement action in circuit court, provide an overview of what your municipality can expect should you opt to initiate zoning litigation, and discuss what kinds of zoning cases might be better brought in circuit court.

Jurisdiction of the Circuit Court

While many zoning ordinances provide for enforcement through civil infraction citations, the Michigan Zoning Enabling Act (“MZEA”) also provides the framework for suits to enforce zoning violations to be brought in circuit court. The MZEA relevantly provides: “A use of land or a dwelling, building, or structure, including a tent or recreational vehicle, used, erected, altered, razed, or converted in violation of a zoning ordinance or regulation adopted under this act is a nuisance per se. The court shall order the nuisance abated, and the owner or agent in charge of the dwelling, building, structure, tent, recreational vehicle, or land is liable for maintaining a nuisance per se.” MCL 125.3407. Michigan’s Revised Judicature Act correspondingly provides that: “All claims based on or to abate nuisance may be brought in the circuit court. The circuit court may grant injunctions to stay and prevent nuisance.” MCL 600.2940(1).

These statutory provisions vest circuit courts with jurisdiction over claims alleging violations of zoning ordinances, and with the authority to enter orders requiring zoning violations to be abated (e.g., injunctions) on the basis that such violations are nuisances per se. A nuisance per se is something that, by its very nature, constitutes a nuisance at all times and under any circumstances. Unlike a nuisance in fact, which requires proof of the impact on circumstances and surroundings, a nuisance per se is proven by the mere fact that it exists. In most cases, this means that if a municipality succeeds in proving that a violation of its zoning ordinance exists, it will be entitled to an order from the circuit court enjoining the zoning violation in question (although evidence of harmful impacts never hurts). In a civil action like a zoning enforcement case, the municipality will be required to prove that the act or condition in question violates its zoning ordinance “by a preponderance of the evidence,” meaning that it must show that it is more likely than not a violation exists.

Bringing a Circuit Court Action

The Complaint

While a civil infraction action is initiated by the filing of a municipal civil infraction citation in district court, litigation in circuit court must be commenced by filing a complaint, which at a minimum should describe: 1) the relevant parties to the suit; 2) why the circuit court has jurisdiction over the matter (which would be for the reasons described above); 3) the general allegations of fact giving rise to the complaint (e.g., the facts leading up to the lawsuit); 4) counts for each zoning violation at issue (there will often be more than one); and 5) a request for relief, which will almost always include a request for an order enjoining the zoning violation(s) at issue. A complaint must be filed with the court and served on the defendant in accordance with Michigan’s Court Rules.

Preliminary Steps

Once a complaint is filed, the defendant will be required to appear and file an answer. If the defendant fails to file an answer within the statutory timeline, the municipality may move for a default judgment. In instances where a zoning violation threatens some harm to the public or the environment (for instance, an illegal business that is improperly disposing of chemical waste), the complaint could be accompanied by a motion for a preliminary injunction requesting the court to enjoin the defendant from engaging in certain behavior until the suit is resolved.

If the defendant files a timely answer, the next step will be filing initial disclosures (court-ordered disclosures of basic information related to the case) typically followed by either pursuing discovery or filing of dispositive motions. Some circuit courts may also require the parties to participate in alternative dispute resolution, such as arbitration or mediation, but this can generally be waived if the parties do not believe it would be productive.

Discovery

Discovery, which is not permitted in district court civil infractions actions, involves the exchange of information between the parties to the suit. Discovery can take a number of different forms. Written discovery includes requests to produce documentation or records (requests for production), questions that the receiving party must answer (interrogatories), and allegations that the receiving party must admit or deny (requests for admissions). Written discovery is a useful tool in obtaining evidence of zoning violations that would be difficult to prove without the cooperation of the defendant, such as evidence that a prohibited business is being conducted within a home.

Discovery often also involves the deposition (e.g., questioning by an attorney under oath) of key witnesses—both lay (witnesses with personal knowledge of the events at issue in the suit) and expert (witnesses who do not have personal knowledge about the suit, but have expertise that will help the court understand technical aspects at issue in the suit). Examples of lay witnesses would include an official that issued a citation, a neighbor who complained to the municipality about the violation at issue, and the defendant or their agents/employees. Examples of expert witnesses could include professional planners asked to opine whether a certain use constitutes a customary accessory use, or experts in real estate asked to opine about an impact on adjacent property values.

Michigan law generally favors a broad discovery policy, so parties in a lawsuit are often required to exchange voluminous information that, at times, may not seem particularly relevant to the subject of the suit. Throughout the course of discovery, municipal officials and employees will need to work closely with their legal counsel to answer requests, locate documents, and prepare for and appear for depositions. One thing to bear in mind for municipalities considering bringing a case in circuit court: its officials, including members of its governing body, may be deposed by the counsel for the defendant in the course of the lawsuit.

Dispositive Motions

Many circuit court lawsuits are resolved by the filing of dispositive motions, also known as motions for summary disposition (in federal court, they are called motions for summary judgment). In basic terms, such motions typically ask the court to rule that 1) a party is entitled to judgment as a matter of law on a certain issue; or 2) that there is no genuine dispute of material fact that a party is entitled to judgment on a certain issue. If granted, dispositive motions resolve issues without the involvement of a jury and in a relatively timely and efficient manner, with the potential to resolve the entire action.

Depending on the nature of the lawsuit, the contents of the defendant’s answer, and what information the parties need to obtain via discovery, a dispositive motion could be filed before, during, or after the time allotted for discovery by the court. A dispositive motion might be filed immediately after the defendant files an answer if the answer essentially admits to the violation in question, or asserts defenses that would not preclude a finding of liability. For instance, if a complaint alleges that a defendant is operating an illegal business, and the answer admits that the business is not allowed, but argues it is a lawful nonconforming use even though it was commenced after the ordinance made it unlawful. Because the complaint would assert no valid defense, a dispositive motion would be appropriate without any discovery being conducted.

A dispositive motion could be filed after limited discovery if the information obtained via discovery shows that the defendant is liable. In the scenario above, if the defendant’s complaint did not admit that the illegal business started after the ordinance was adopted, but that fact was brought to light following the exchange of written discovery, the enforcing municipality could quickly file a motion for summary disposition in hopes of resolving the matter with minimal discovery. If substantial factual development is necessary to prove zoning violation (for example, in the scenario above there are conflicting witness accounts and records as to whether the now-illegal business predated the zoning ordinance), then dispositive motions might not be filed until the close of discovery.

The Trial and Beyond

If the case does not settle and if dispositive motions do not resolve the suit, the next step will be a pretrial conference, followed by either a jury or bench trial (e.g., a trial where the judge acts as the factfinder rather than a jury). This can be a complex, costly, and time-consuming process. Jurys and judges are not always predictable, and there are many things that can go awry during a trial—even one that should be simple. A trial might also require municipal officials to take the stand to testify (both under questioning from the municipal attorney and counsel for the defendant). However, with competent legal representation and adequate preparation, a municipality can prevail at trial and obtain a favorable judgment.

Even after a final judgment is rendered, there are still ways to challenge the decision. Parties can file motions for reconsideration (asking the judge to reconsider his or her ruling), motions for judgment notwithstanding the verdict (asking the judge to rule in favor of a party even if the jury did not find in their favor), and appeals to Michigan’s court of appeals. If filed by a defendant, these motions will require additional time and resources to defend and can prevent the municipality from enforcing its judgment even after it is entered by the court. However, a good decision by a judge or jury can and often will survive these challenges.

Why File in Circuit Court?

The above discussion provides a simplified, bird’s eye view of circuit court litigation. Compared to enforcing zoning violations through the municipal civil infraction process, you may correctly assume that enforcement in circuit court is extremely costly and time-consuming. Zoning cases can often take years to resolve in circuit court and can require a municipality to expend tens of thousands of dollars (or more) in legal fees incurred in writing and responding to discovery, taking and defending depositions, engaging in motion practice and oral argument in circuit court, and so on. This cost is exponentially higher than what a typical civil infraction case entails. So why file in circuit court? The answer is generally that circuit court litigation is a more comprehensive and involved process that leaves less to chance than a district court action. Some specific reasons are discussed below.

First, circuit court litigation is well-suited to cases that are too complex or nuanced for a civil infraction action in district court. If the nature of the violation is complicated (i.e., a violation of a planned unit development agreement or a complicated special land use approval) or if the violation requires a thorough understanding of historical actions of the defendant or municipality (i.e., a dispute about a use is lawful nonconforming), it may be better suited to circuit court, especially when the alternative is often trying to explain complicated concepts to a district court judge for the very first time at the one and only hearing in a civil infractions case.

Second, circuit court litigation is sometimes the only path forward for cases where evidence of a violation cannot be acquired through observing the property or through an administrative search warrant. Remember, there is no discovery in district court, so an enforcing municipality is very limited in the evidence it can present. For example, if someone is operating an illegal short-term rental out of their home, a municipality may need to use written discovery requests to obtain adequate proof of that violation, where the municipality could request rental receipts, website postings, admission of rental activity, etc. In such instances, a circuit court action is the quickest way to obtain the requisite information and admissions from the defendant.

Third, circuit court litigation is useful to resolve issues where the district court with jurisdiction has previously expressed a disinterest in adjudicating the matter. Unfortunately, there are instances in which district court judges lack the expertise, time, or interest to correctly resolve zoning cases. Sometimes a judge’s decision can be colored by his or her personal disposition towards the matter, which could include a personal disagreement with the way in which a municipality is regulating something, or even a fundamental distaste for zoning regulations in general. In other cases, a district court judge might be willing to find in favor of a municipality, but unwilling to grant injunctive relief ordering the violation to be corrected. While some of these matters can be resolved by an appeal to the circuit court following a formal hearing, in some instances it may be preferable to bypass the district court altogether.

Fourth, circuit court litigation can enable interested third parties to participate in the lawsuit. While it is generally unheard of for a third party to join a district court civil infraction action, in circuit court third-party plaintiffs can intervene and actively participate in the lawsuit. These third parties could be neighbors to a defendant with an interest that is implicated by the zoning violation at issue, or citizen-led coalitions wanting to assist the municipality in its enforcement of its zoning ordinance against a defendant.

Fifth, circuit court litigation can be the best option to obtain immediate injunctive relief for a zoning violation that poses an imminent danger to the public or the environment. While civil infractions actions can typically be resolved in four to six weeks, a municipality could request an emergency hearing on its complaint and motion for preliminary injunction in circuit court and obtain interim relief considerably quicker, provided it satisfies the relevant requirements that must be met for the court to issue a preliminary injunction. While the merits of the case would still need to be litigated following the issuance of a preliminary injunction, this provides an important mechanism for a municipality to immediately respond to a violation that threatens to cause irreparable harm.

Finally, circuit court litigation may be preferrable to resolve high-profile or high-stakes cases. For cases that involve a great deal of public controversy, enforcement in circuit court is a more transparent process where the enforcing municipality’s efforts will be more visible to its residents. For enforcement cases threatening long term or far-reaching ramifications to a community (for instance, a case against a defendant who argues that short-term rentals fit within the definition of “single-family dwelling” and are permitted in all zoning districts), litigation in circuit court leaves less to chance and can ensure that the judge will have all of the requisite information to make a fully informed decision.

Conclusion

While it is often not the best fit for day-to-day zoning violations, circuit court litigation is a powerful tool in a municipality’s toolbox and should not be overlooked when a challenging zoning violation is encountered. When faced with such a situation, talk to your municipal attorney and thoroughly explore the options available for enforcement before proceeding. For more information on effective code enforcement, see our E-Letters Should Your Township Use Self Help, Ten Strategies for Effective Ordinance Enforcement and Getting the Most out of Civil Infractions: Violation Notices, Informal Hearings, Warning Letters and Consent Judgments.

By Jacob  N. 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.