Bonner v. City of Brighton
298 Mich. App. 693
| Mich. Ct. App. | 2012Background
- Two Brighton properties with unsafe, unoccupied structures; city deemed them unsafe and nuisances under BCO; 18-59 creates a presumption that repairs costing over 100% of pre-unsafe true cash value are unreasonable and demolition may proceed without the owner’s repair option.
- Owners appealed to city council; council upheld demolition, denying repair option and ordering demolition within 60 days; owners sought injunctions and filed suit asserting due process and taking claims.
- During litigation, city repeatedly sought demolition; trial court granted partial summary disposition on procedural grounds but found BCO § 18-59 unconstitutional on substantive due process grounds; city appealed.
- Court held BCO § 18-59 violates substantive due process because it arbitrarily bars repair when owner is willing and able to repair; it also violates procedural due process by denying a repair option that would safeguard private property interests.
- Court noted exceptions in the ordinance for weather-related or uncontrollable events and allowed appeals to council where a repair option could be considered; majority concluded facial unconstitutionality of the non-exceptional repair-cost presumption.
- Plaintiffs prevailed on the facial challenge and may recover costs; the opinion discusses persuasive authority from other jurisdictions and reinforces the repair-option requirement as a due process safeguard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 18-59’s 100% repair-cost presumption violate substantive due process? | Owners: presumption is arbitrary and unreasonably confinement of property rights | City: presumption rationally furthers public health and safety | Yes; it violates substantive due process |
| Does 18-59 violate procedural due process by denying a repair option? | Owners: prerogative to repair is a procedural safeguard | City: notice/hearing suffice; repair option not required | Yes; it violates procedural due process |
| Must ordinance provide an opportunity to repair before demolition in all cases? | Repair option should be universally available | Council may determine exceptions; not required in all cases | Yes; the majority says a repair option is required except in unique emergency circumstances |
| Is the challenge to 18-59 a facial challenge or an as-applied challenge? | Facial invalidity due to due process violations | Ordinance could be constitutional under some fact patterns | Facial challenge sustained on substantive due process grounds |
| Do any statutory or constitutional exceptions save 18-59 as written? | Exceptions (weather, emergencies) do not cure core flaw | Exceptions preserve some constitutionality; overall still valid in some contexts | No; core language unconstitutional; but some weather-related exceptions acknowledged |
Key Cases Cited
- Kyser v Kasson Twp, 486 Mich 514 (2010) (reasonableness test for local zoning; presumption of validity with heavy burden to prove unreasonableness)
- Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184 (2008) (procedural due process requires notice/hearing and opportunity to be heard; factors vary per Mathews)
- Washington v City of Winchester, 861 S.W.2d 125 (Ky App 1993) (demonstrates repair option as a remedy; court favored option to repair when feasible)
- D&M Fin Corp v City of Long Beach, 136 Cal App 4th 165 (2006) (due process requires opportunity to repair before demolition in nuisance cases)
- Hawthorne S & L Ass’n v City of Signal Hill, 19 Cal App 4th 148 (1993) (premised on right to repair or safe alternative; due process emphasis on notice/hearing)
- Herrit v City of Butler Code Mgt Appeal Bd, 704 A2d 186 (Pa Commw 1997) (repair option discussed as part of due process in code enforcement)
- Horne v City of Cordele, 140 Ga App 127 (1976) (damage/cost-based demolition cannot be automatic where repairs could render safe)
- Village of Lake Villa v Stokovich, 211 Ill 2d 106 (2004) (repair-notice framework balancing destruction vs. repairs; 15-day notice provision analyzed)
- State Police Comm’r v Anderson, 344 Mich 90 (1955) (policy should be less destructive than necessary; consider minimal remedy)