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A Better Partnership
April 28, 2014

MSC holds that property owners have no absolute right to avoid demolition of a building by repairing it

Municipalities, and not property owners, might get the final say in whether an unsafe structure must be demolished rather than repaired, according to the Michigan Supreme Court’s decision in Bonner v City of Brighton.  The Court unanimously held that Brighton’s ordinance—which presumes repairs are unreasonable and requires demolition if the repair cost exceeds 100% of the structure’s value—did not on its face violate substantive due process.  The Court found that this choice of demolition over repair was reasonably related to and reasonably advanced the municipality’s interest in preventing injury, reducing crime, and improving property values.  And it placed great emphasis on the fact that the property owner could rebut the presumption that repairs were unreasonable.  Ultimately, the court looked only at whether the demolition ordinance on its face was reasonable, not whether it violated substantive due process as applied in this case--and issue that is likely to arise on remand.
 
Leon and Marilyn Bonner brought an action against the City of Brighton, claiming that the city’s order under BCO § 18-59 to demolish three structures on their property violated their substantive and procedural due process rights.  Under BCO § 18-59, whenever the city manager determines that a structure is unsafe and that the cost of repairs would exceed the true cash value (based on tax assessments) of the structure, “the repairs will be presumed unreasonable,” and “the structure will be presumed a public nuisance which may be ordered demolished without option on the part of the owner to repair.”  The Bonners were unsuccessful in an appeal of the city’s order before the city council.  Next, they brought this independent action in Livingston Circuit Court challenging the facial constitutionality of BCO § 18-59.  The Circuit Court and Court of Appeals both agreed with the Bonners that the ordinance's provision violated substantive due process on its face.
 
The Michigan Supreme Court reversed the Court of Appeals.  First, the Supreme Court held that the ordinance did not violate substantive due process.  The Court found that, as owners of the property in question, the Bonners had “a significant property interest within the protection of the Due Process Clause,” but not a “fundamental right” to repair.  The Court found, therefore, that the city ordinance need only bear a “reasonable relationship to a legitimate government interest.” The City of Brighton’s legitimate interest was the protection of the health and welfare of its citizens.  The Court then found that the unreasonable-to-repair presumption in BCO § 18-59 bore a reasonable relationship to Brighton’s legitimate government interest, because it was not an “arbitrary . . . total prohibition on a property owner’s opportunity to repair an unsafe structure.”
 
Second, the Supreme Court held that the ordinance did not violate procedural due process.  The Bonners claimed that the ordinance violated due process by failing “to give the owner of an unsafe structure the procedural protection of a repair option before that property may be demolished.”  The Court stated that due process requires impartial “adjudication . . . preceded by notice and an opportunity to be heard . . . granted at a meaningful time and in a meaningful manner” before the deprivation of a property interest occurs.  The Court held that procedural due process “was satisfied by giving plaintiffs the right to an appeal before the city council and the opportunity to appeal that decision to the circuit court.”

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