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146520 - Bonner v City of Brighton

Leon V. Bonner and Marilyn E. Bonner,
Dennis B. Dubuc
(Appeal from Ct of Appeals)
(Livingston – Hatty, M.)
City of Brighton,
Caryn A. Gordon


Leon and Marilyn Bonner own two residential properties located in downtown Brighton. According to the city of Brighton, the three structures on the properties have been unoccupied, and largely ignored and unmaintained, for over 30 years. The city’s building and code enforcement official sent the Bonners a letter, telling them that the structures were unsafe under the Brighton Code of Ordinances and public nuisances under Michigan common law. The building official stated that the city had determined that it was unreasonable to repair the structures as defined in BCO § 18-59, which provides:
Whenever the city manager, or his designee, has determined that a structure is unsafe and has determined that the cost of the repairs would exceed 100 percent of the true cash value of the structure as reflected on the city assessment tax rolls in effect prior to the building becoming an unsafe structure, such repairs shall be presumed unreasonable and it shall be presumed for the purpose of this article that such structure is a public nuisance which may be ordered demolished without option on the part of the owner to repair.
The letter ordered the Bonners to demolish the structures within 60 days.
The Bonners appealed to the city council, submitting opinions from a structural engineer and contractors, who asserted that the buildings were safe, structurally sound, and readily repairable. Following a series of hearings, the council rejected the Bonners’ appeal.
The Bonners sued the city in circuit court, claiming due process and equal protection violations, among other matters. After the complaint was filed, the city council conducted a show-cause hearing in which the Bonners participated. The council rejected the Bonners’ arguments against demolition. The city later filed its own lawsuit, asking the court to enforce BCO § 18-59 and order the Bonners to demolish the buildings.
But the circuit court judge ruled that BCO § 18-59 violated substantive due process. The ordinance precluded property owners from having the opportunity to repair their property, which served no rational interest or purpose, was entirely arbitrary, and shocked the conscience, the judge stated. The judge agreed with the city that the demolition of unsafe structures promoted the legitimate interest of public health and safety; however, that interest was not advanced by denying a property owner the chance to repair an unsafe structure, the judge observed. The judge directed the city to “cure this defect in the ordinance and … reissue a new demolition order under the revised ordinance before proceeding with any demolition of the properties.”
The city appealed, but in a 2-1 published opinion, the Court of Appeals affirmed, with the majority holding that the ordinance violated substantive due process. The objective of demolishing unsafe structures that constitute a public nuisance is a legitimate one, the majority said. But the application of a presumption of unreasonableness whenever the cost of repair would exceed 100 percent of the structure’s true cash value – regardless of a proper owner’s willingness to make necessary repairs at whatever cost – was arbitrary and unreasonable, the majority said. In addition, the ordinance violated procedural due process by not allowing an owner to retain property by performing what others might consider unreasonably expensive repairs, the majority stated.
The dissenting judge would have upheld the ordinance. In some circumstances, it would be reasonable to apply the presumption of unreasonableness – which is all that is necessary to sustain an ordinance from a facial challenge on substantive due process grounds, the judge said. Because the ordinance allows property owners to appeal from a demolition order, the ordinance afforded the notice and opportunity to be heard required by procedural due process, the judge reasoned.
The city appealed, and in a July 1, 2013 order, the Supreme Court granted leave to appeal; “The Brighton Code of Ordinances § 18-59 creates a presumption that an unsafe structure shall be demolished as a public nuisance if the cost to repair the structure would exceed 100% of the structure’s true cash value as reflected in assessment tax rolls before the structure became unsafe and does not afford the owner of such a structure an option to repair as a matter of right. The parties shall address whether § 18-59 is facially unconstitutional on the basis that the ordinance violates: (1) substantive due process; and/or (2) procedural due process.”