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A common question we get from our clients is whether a township has an obligation to enforce its ordinances. This can be an especially hot topic where ordinance violation complaints become weaponized by feuding neighbors, where there are questions regarding whether a township should be actively policing violations even where there have been no complaints, and where there are claims that some violators are being treated differently than others. This E-Letter will explore the topic of prosecutorial discretion in the code enforcement context, explain the limits of that discretion, provide advice for how to exercise that discretion in such a way as to avoid defenses that are commonly asserted, and give recommendations for best practices.

Obligation to Enforce Ordinances

Townships generally retain discretion in the enforcement of ordinances and cannot be compelled to enforce ordinances or be found liable for a failure to enforce. One particularly relevant case from the Court of Appeals examined this issue and concluded that the decision whether to enforce an ordinance is a “discretionary activity,” and that such decisions “are so basic to the operation of a municipality that any attempt to create liability with respect thereto would constitute ‘an unacceptable interference with [the Township’s] ability to govern.’” Randall v Delta Charter Twp, 121 Mich App 26, 31-35 (1982). As a discretionary activity, townships cannot be compelled to engage in enforcement via a mandamus action, which is the legal tool used to force municipalities to perform ministerial (i.e., nondiscretionary) acts.

Even if a township is aware of a violation and willfully fails to enforce its ordinances, it will not be liable for such nonenforcement. See Hobrla v Glass, 143 Mich App 616, 629 (1985). Further, courts have held that the enforcement—or nonenforcement—of municipal ordinances is a governmental function, and as such is subject to the protections of governmental immunity. See Randall, 121 Mich App at 29-30. What this means is that even if someone is harmed by an ordinance violation that your township has failed to prosecute, your township cannot be liable.

If residents are dissatisfied with municipal enforcement decisions, the remedy is often for the residents to simply file suit against the violator, not the township, as ordinance violations can be typically enforced by individuals who can demonstrate some level of specific harm caused to them that is different than the harm caused to the general public, although this is typically not the answer aggrieved residents like to hear. See Ansell v Delta Co Planning Comm, 332 Mich App 451, 461 (2020).

Pitfalls of Nonenforcement

Despite that townships do not have an obligation to enforce their ordinances, enforcement is still an important governmental activity and there are many compelling reasons for enforcement. First and foremost, every lawful ordinance adopted by a township should advance the public health, safety, and welfare, in addition to other important governmental interests. Failing to enforce those ordinances undermines those important interests and can be detrimental to your community. Failing to enforce your ordinances not only allows existing violations to continue, but can also embolden new violations in the future if it becomes apparent that your ordinances are essentially toothless.

Beyond those practical concerns, there are various legal defenses that can be asserted in response to nonenforcement, should you later reverse course and attempt to enforce your ordinances. The first is laches, a legal doctrine that arises when “the passage of time combined with a change in condition that would make it inequitable to enforce [an ordinance],” and can be used to prevent enforcement. City of Troy v Papadelis, 226 Mich App 90, 96-97 (1997). A defense of laches requires a defendant to show a lack of due diligence on behalf of the enforcing municipality, coupled with some resulting prejudice. Id. at 97. A prolonged period of nonenforcement could lead to assertions of this defense, which could complicate or frustrate enforcement later on.

A related legal defense to enforcement is known as equitable estoppel, which can arise where: 1) a plaintiff township, through representation or silence, induces a belief by the defendant in certain facts; 2) the defendant justifiably relies on this belief; and 3) the defendant will be prejudiced if the plaintiff township is later permitted to deny such facts. Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 828 (1984). In the zoning context, this normally requires “exceptional circumstances” to bar enforcement, but a longstanding practice of nonenforcement, especially if that practice is communicated to residents, could be the building blocks of such a defense, even if it is not ultimately successful.

Another defense that could be implicated by widespread nonenforcement is equal protection/selective enforcement. This is a defense that alleges unfair disparate treatment without a valid basis. To prevail on such a claim, a defendant must show that: 1) there are other individuals who are in a similar situation as the defendant; 2) the township treated the defendant differently than those individuals; and 3) there was no rational basis for the disparate treatment. Silver v Franklin Twp Bd of Zoning Appeals, 996 F.2d 1031, 1036-37 (6th Cir 1992). This defense also requires a heavy burden of proof, but if a defendant is the only person in the township that is subject to any code enforcement efforts, that could certainly help in asserting this defense.

Selective Enforcement – The Right Way

While enforcement is important, every township is saddled with budgetary and staffing limitations that make it impossible to pursue every violation to the bitter end, as there is often no shortage of ordinance violations within any given jurisdiction. So how then does a township pick and choose which violations to enforce? Here are a few considerations that might be helpful:

Complaint-based enforcement. Many municipalities opt to address ordinance violations only if there has been a complaint, meaning their enforcement personnel do not actively go looking for violations. Some allow anonymous complaints, others do not, and some even require written complaint forms to take action. All of these approaches are generally permissible, and resident complaints can often be the “rational basis” that informs why one violation is pursued while another is not. A common refrain from code enforcement defendants is: “Why are you going after me when there is another violation down the street?” The answer is usually: “No one complained about that violation,” which is a perfectly valid reason for treating two properties differently.

Complaint-based enforcement is generally a good approach, but we recommend including some flexibility if this complaint-based approach is formalized in a written policy or procedure manual, because there could always be situations where enforcement is desired or necessary even if there are no complaints. For instance, there could be scenarios where neighbors are too intimidated to make a formal complaint, or where some kind of harm to the environment warrants enforcement action even if no residents are aware of it or have complained.

“Triage” violations. With a limited enforcement budget, at some point you will need to triage violations, meaning that you will need to determine which are most deserving of the Township’s funds. If there are more violations than you can feasibly enforce, try to focus on violations that are particularly harmful to the public, based on factors such as nuisance impacts (noise, dust, smoke, traffic, etc.), number of complaints, visibility/publicity, precedential risk, etc.

Use form letters to provide some degree of enforcement with little effort. Your enforcing officer can greatly increase the efficiency of enforcement efforts by utilizing prewritten form violation letters that require minimal modification to send to alleged violators. These letters can often result in well-intentioned violators cleaning up their act, and they show that your township is actively engaged in enforcement, even if you do not always escalate every violation beyond mere warning letters.

Document complaints and violations, even if no action is taken. Good recordkeeping is key to explaining township action or inaction related to ordinance violations. If the only record is that a township wrote a ticket to one resident for a violation but not another, that does nothing to establish the rational basis for this decision. Thus, we recommend documenting complaints, enforcement action, and the reasons for specific action or inaction. For violations deemed to be relatively unimportant, you could add a note in the file (for instance: “maximum height violation not visible from any neighboring property or roadway”), send a warning letter, and focus on other more important violations.

Provide for flexibility in your code enforcement policies. While having policies and procedures for code enforcement are very useful to establish best practices, it is important that these policies are not too rigid. For instance, if your policies require a civil infraction citation to be issued after every warning letter a defendant ignores, you might be writing a lot of citations and making a lot of court appearances. On the other hand, if your policies require three warning letters each with a 30-day compliance period before a citation can be issued, you will be hamstrung if an urgent violation arises. Thus, we recommend making sure there is flexibility in your policies to allow some violations to be pursued through intermittent warning letters, and others to be pursued by immediate judicial action if necessary.

Conclusion

Townships have discretion in the enforcement of their ordinances and cannot be held directly liable for a failure to enforce. However, if prosecutorial discretion is exercised in an unreasonable manner, it could stymie future enforcement efforts. These strategies can help focus your township’s enforcement resources on the most important violations without risking unnecessary legal challenges.