MARILYN J. KELLY, J.
This case involves two landowners' facial challenge to the constitutionality of § 18-59 of the Brighton Code of Ordinances (BCO), which creates a rebuttable
As a preliminary matter, we clarify that the landowners' substantive due process and procedural due process claims implicate two separate constitutional rights, and that we must analyze each claim under separate constitutional tests. The Court of Appeals therefore erred by improperly conflating these analyses and subsequently determining that BCO § 18-59 facially violates plaintiffs' general due process rights. Instead, when each due process protection is separately examined pursuant to the proper test, the ordinance does not violate either protection on its face.
We hold that BCO § 18-59 does not constitute an unconstitutional deprivation of substantive due process because the ordinance's unreasonable-to-repair presumption is reasonably related to the city of Brighton's legitimate interest in promoting the health, safety, and welfare of its citizens. Furthermore, the ordinance is not an arbitrary and unreasonable restriction on a property owner's use of his or her property because there are circumstances under which the presumption may be overcome and repairs permitted.
We likewise hold that the city of Brighton's existing demolition procedures provide property owners, including plaintiffs, with procedural due process. Contrary to plaintiffs' argument, the prescribed procedures are not faulty for failing to include an automatic repair option, which is, in essence, plaintiffs' substantive due process argument recast in procedural due process terms. For purposes of this facial challenge, it is sufficient that aggrieved parties are provided the right to appeal an adverse decision to the city council as well as the right to subsequent judicial review. For the facial challenge to succeed, plaintiffs must show that no aggrieved property owners can meaningfully exercise their right to review or that such review is not conducted impartially. Because they have not done so, plaintiffs have failed to establish that BCO § 18-59, on its face, violates their procedural due process rights.
We therefore reverse the judgment of the Court of Appeals and remand this case to the Livingston Circuit Court for further proceedings consistent with this opinion.
Plaintiffs Leon and Marilyn Bonner own two residential properties, 122 E. North Street and 116 E. North Street, both located in downtown Brighton. Situated on these properties are three structures — two former residential homes and one barn/garage — all of which have been unoccupied and generally unmaintained for over 30 years. In January 2009, defendant city of Brighton's (the City) building and code enforcement officer, James Rowell (the building official), informed plaintiffs via written notice that these three structures had been deemed "unsafe" in violation of the Brighton Code of Ordinances, and further constituted public nuisances in violation of Michigan common law.
Consequently, plaintiffs were ordered to demolish the structures within 60 days of the date of the building official's letter.
Because demolition had been ordered without an option to repair, plaintiffs appealed the building official's determination to the Brighton City Council (city council) pursuant to the appellate process set forth in BCO § 18-61, which provides in relevant part:
Initially, the city council stayed its review pending the building official's interior inspection of the structures. However, despite having previously agreed to allow the building official interior access, plaintiffs thereafter refused entry, causing the City to petition for and obtain administrative search warrants. On May 27, 2009, the building official and several other representatives of the City inspected the structures and found over 45 unsafe conditions therein. The hearing resumed on June 4, 2009, and June 18, 2009, during which the
Rather than appeal the city council's decision to the Livingston Circuit Court as an original action per BCO § 18-63,
After consolidating these cases, the circuit court denied the City's request for injunctive relief and likewise denied relief to plaintiffs on several of the theories they had advanced. However, the circuit court did address the constitutionality of the ordinance, determining that, on its face, BCO § 18-59 violates substantive due process by permitting the City to order an unsafe structure to be demolished as a public nuisance without providing the owner the option to repair it when the structure is deemed unreasonable to repair as defined under the ordinance. The circuit court thus granted plaintiffs' renewed motion for partial summary disposition under MCR 2.116(C)(10) on the substantive due process claim and thereafter denied reconsideration.
After granting the City's application for leave to appeal, the Court of Appeals affirmed the circuit court in a split published opinion.
The majority also determined that BCO § 18-59 does not bear a reasonable relationship to the permissible legislative objective of protecting citizens from unsafe and dangerous structures because demolition does not advance the objective of abating nuisances and protecting citizens to a greater degree than repairs, even ones more costly than the present value of the structure and that an owner is willing and able to timely finance. Accordingly, the majority held that BCO § 18-59 is facially unconstitutional. Finally, notwithstanding the circuit court's abstention from reaching the procedural due process issue, the majority went on to conclude that BCO § 18-59 likewise violates procedural due process because "the only way the city's ordinances could withstand a procedural due process challenge" would be if it provides a property owner with the option to repair the structure.
We granted the City's application for leave to appeal, directing the parties to brief separately "whether § 18-59 is facially unconstitutional on the basis that the ordinance violates: (1) substantive due process; and/or (2) procedural due process."
This case implicates myriad standards of review. The circuit court granted plaintiff's motion for partial summary disposition pursuant to MCR 2.116(C)(10).
This dispute also concerns the constitutionality of a municipal ordinance, which necessarily involves the interpretation and application of the ordinance itself. We review de novo questions of constitutional law;
Further, because ordinances are treated as statutes for purposes of interpretation and review, we also review de novo the interpretation and application of a municipal ordinance.
Plaintiffs make two facial constitutional attacks upon BCO § 18-59. First, they assert that the ordinance violates substantive due process by permitting demolition of an unsafe structure without extending to its owner an option to repair, because denying a property owner the chance to repair an unsafe structure does not advance the City's otherwise legitimate interest in protecting the health, safety, and welfare of the Brighton citizenry. Second, plaintiffs argue that the ordinance violates procedural due process by failing to provide a procedure to safeguard a property owner's right to choose whether to repair a structure municipally deemed unsafe before the City orders it demolished. We will address plaintiffs' arguments in this order; before proceeding further, however, we find it necessary to make two critical observations.
First, we emphasize that this is a facial challenge to BCO § 18-59;
Second, and particularly noteworthy here, we emphasize that analysis of substantive and procedural due process involves two separate legal tests. While the touchstone of due process, generally, "is protection of the individual against arbitrary action of government,"
As a result, the Court of Appeals conflated what previous decisions have indicated should be treated as separate inquiries. Indeed, the issue whether BCO § 18-59 is facially unconstitutional for denying property owners the opportunity to repair unsafe structures in violation of substantive due process is distinct from the issue whether the ordinance is facially unconstitutional for permitting the demolition of unsafe structures without providing adequate procedural safeguards in violation of the right to procedural due process. By melding together plaintiffs' substantive and procedural due process claims, the Court of Appeals failed to observe that distinction and thus examine these claims in light of the correct legal standards. We therefore take this opportunity to clarify that alleged violations of substantive and procedural due process must be separately analyzed in order to determine whether the specific dictates of due process have been satisfied.
The federal due process provision guarantees that no person shall be deprived of "life, liberty, or property, without due process of law."
Plaintiffs allege that their property rights have been violated by the City's decision to order their structures demolished without providing them with the option to repair the structures. Explicit in our state and federal caselaw is the recognition that an individual's vested interest in the use and possession of real estate is a property interest protected by due process.
Having identified a significant property interest protected by the Due Process Clause, we continue our analysis by addressing plaintiffs' substantive due process claim. "`Substantive due process' analysis must begin with a careful description of the asserted right,"
A zoning ordinance must similarly stand the test of reasonableness — that it is "`reasonably necessary for the preservation of public health, morals, or safety'"
Mindful of these principles, we begin by describing the right asserted by plaintiffs. Plaintiffs are not generally arguing that they have a categorical right of property use or possession, but assert a much more limited constitutional right; namely, that encompassed within the Due Process Clause's protection of property is a property owner's right to repair a structure municipally deemed "unsafe" before that structure can be demolished. However, we are unaware of any court that has ever granted a property owner the fundamental right of an absolute repair option involving property that has fallen into such disrepair as to create a risk to the health and safety of the public. Indeed, that conclusion would hardly be compatible with the line of cases in which this Court and the United States Supreme Court have held that reasonableness is essential to the validity of an exercise of police power affecting the general rights of the land owner by restricting the character of the owner's use,
BCO § 18-59 was enacted pursuant to the City's police powers, and its purpose is to abate a public nuisance by requiring repairs or demolition of unsafe structures. It is firmly established that nuisance abatement, as a means to promoting public health, safety, and welfare, is a legitimate exercise of police power
Indeed, to satisfy substantive due process, the infringement of an interest that is less than fundamental, such as the right asserted here, requires no more than a reasonable relationship between the governmental purpose and the means chosen to advance that purpose. This standard allows a municipal body sufficient latitude to decide, as the City has, that certain considerations favor using one means, i.e., demolition, rather than another, i.e., repairing. Enacting an ordinance that presumes repairs will be unreasonable to undertake if the cost of those repairs exceeds 100 percent of the property's value before it became unsafe protects children and others from the risk of increased injury, reduces the opportunity for crime, and aids in the maintenance of property values and marketability of lands. Any one of these purposes is reasonably related to the City's interest in promoting the health, safety, and welfare of its citizens and it is presumed that the City acted for such reasons, or for any other valid reason, in enacting BCO § 18-59.
Without question, property owners have a constitutional right of property use, but this does not translate into an absolute constitutional right to repair unsafe structures. Moreover, even assuming that plaintiffs had a protected interest in repairing the unsafe structures at issue here before that property could be subject to demolition,
Nor have plaintiffs shown that BCO § 18-59 violates their substantive due process rights as an arbitrary and unreasonable restriction on plaintiffs' constitutionally recognized property interests. Under this standard, a presumption still prevails in favor of the reasonableness and validity in all particulars of a municipal ordinance, unless plaintiffs can show that the unreasonable-to-repair-presumption constitutes "`an arbitrary fiat, a whimsical ipse dixit,'" leaving "`no room for a legitimate difference of opinion concerning its reasonableness.'"
Plaintiffs argue, and the Court of Appeals agreed, that the unreasonable-to-repair presumption in BCO § 18-59 can only be overcome upon a showing of economic reasonableness, i.e., that repair costs would not exceed "100 percent of the true cash value of the structure as reflected on the city assessment tax rolls prior to the building becoming an unsafe structure." There is, however, no textual support for this interpretation because BCO § 18-59 does not specify the manner in which the unreasonable-to-repair presumption may be overcome. A showing of reasonableness could therefore be established by presenting a viable repair plan; evidence from the challenger's own experts that, contrary to the City's estimates, the repair costs would not exceed 100 percent of the property value; or evidence that the structure subject to demolition has some sort of cultural, historical, familial, or artistic value. Because reasonableness can be established in economic or noneconomic terms, plaintiffs have failed to show, and the Court of Appeals erred by concluding, that BCO § 18-59 is arbitrary and unreasonable because "it denies a property owner the option to repair an unsafe structure simply on the basis that the city deems repair efforts to be economically unreasonable."
We find nothing arbitrary or unreasonable about the City's interest in demolishing unsafe structures and believe the means selected — the unreasonable-to-repair presumption in BCO § 18-59 — bears a reasonable relationship to the objective sought to be attained. Because plaintiffs have failed to satisfy the burden necessary to invalidate BCO § 18-59 on substantive due process grounds, it must be sustained.
We turn now from the claim that the City may not, by virtue of BCO § 18-59, deprive plaintiffs of their asserted property interest without first affording them the opportunity to repair a structure deemed unsafe by the City, to plaintiffs' procedural due process claim that the City may not order demolition on the basis of the procedures BCO § 18-59 provides. Well established is the assurance that deprivation of a significant property interest cannot occur except by due process of law.
To determine whether BCO § 18-59 provides property owners the process to which they are constitutionally entitled, we first review in some detail the procedures the City has employed through this ordinance. The City's demolition process ordinarily begins with an inspection of a particular structure followed by a determination by the city manager, or some other agent designated by the City, that the structure is unsafe pursuant to any one or more of the ten factors delineated in BCO § 18-46 and is, therefore, subject to demolition. This determination triggers BCO § 18-59, which requires that the city manager, or the city manager's designee, determine the cost to repair the structure and compare that cost to the structure's true cash value as reflected in assessment tax rolls before the structure became unsafe. If the cost to repair exceeds the structure's true cash value, then the structure is presumed to be a public nuisance subject to demolition. If not, the structure remains in its unsafe condition but may not, at this point, be subject to demolition. In either case, the city manager must then serve the structure's owner with written notice pursuant to BCO § 18-52.
If the owner rejects the terms of the notice and submits a written appeal that "state[s] the basis for the appeal," "[t]he owner or his agent shall have an opportunity to be heard by the city council at a regularly scheduled council meeting."
Because this is a facial constitutional challenge plaintiffs do not argue that the City failed to properly execute or enforce this procedural system.
Nevertheless, the Court of Appeals determined that although BCO § 18-61 comports with procedural due process to the extent that it provides notice, a hearing, and a decision by an impartial decision-maker, "the [C]ity should have also provided for a reasonable opportunity to repair the unsafe structure" in order for the ordinance to pass constitutional scrutiny.
The essence of due process is the requirement that "a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it."
Furthermore, vital to the assessment of what process is due in this case is the tenet that substantial weight must be given to the procedures provided for by those individuals holding legislative office — including members of a city council with whom the electorate has entrusted the duty of protecting the health and safety of all citizens — for "[i]t is too well settled to require citation that a statute must be treated with the deference due to a deliberate action of a coordinate branch of our State government...."
The Court of Appeals erroneously determined that BCO § 18-59 is facially violative
Nor does § 18-59, on its face, deprive plaintiffs of procedural due process. BCO § 18-61 affords an aggrieved party notice and a meaningful opportunity to present evidence to rebut the unreasonable-to-repair presumption in BCO § 18-59 before an impartial decision-maker, and plaintiffs have not satisfied their burden of showing that they are constitutionally entitled to further processes in order to satisfy due process requirements. We therefore reverse the decision of the Court of Appeals and remand this case to the Livingston Circuit Court for further proceedings consistent with this opinion.
YOUNG, C.J., and MICHAEL F. CAVANAGH, MARKMAN, ZAHRA, McCORMACK, and VIVIANO, JJ., concurred with MARILYN J. KELLY, J.
Furthermore, Horton, Herrit, and Horne all involve takings claims, and, unlike the rebuttable unreasonable-to-repair presumption in BCO § 18-59, the ordinances at issue in both Horton and Johnson were held unconstitutional on the basis that they required demolition if the cost to repair an unsafe structure exceeded a certain no-repair cost threshold. In contrast, nothing in BCO § 18-59 expressly provides that the unreasonable-to-repair presumption is irrebuttable. Indeed, had the legislative body intended to make demolition the unavoidable result upon incidence of the unreasonable-to-repair presumption, it certainly could have drafted BCO § 18-59 to make that result explicit. However, under the plain language of the ordinance, demolition is permissive. Consequently, to read BCO § 18-59 as creating an irrebuttable presumption would impermissibly render a portion of the ordinance surplusage in violation of the rules of statutory construction. See Pittsfield Charter Twp. v. Washtenaw Co., 468 Mich. 702, 714, 664 N.W.2d 193 (2003).