COA Opinion: City’s demolition order without an opportunity to repair the building violates procedural due process
As the adage goes, one person’s trash is another’s treasure. In Bonner v. City of Brighton, the Michigan Court of Appeals held that Brighton’s ordinance, BCO § 18-59, which requires demolition of an unsafe building if the cost to make it safe exceeds the building’s value, violates the procedural due-process rights of the building’s owners. The plaintiffs, who own two buildings considered unsafe after remaining unoccupied for roughly thirty years, brought a facial challenge to the ordinance. The court decided that owners should have an opportunity to repair such buildings—even if the municipality considers the cost of such repairs unreasonable.
Although the trial court based its holding on substantive due process, the appellate-court majority held that the ordinance interfered with the owners’ property interest in violation of procedural due process because the owners had no opportunity to avoid demolition through repairs once the municipality deemed such repairs unreasonable. The majority found this deprivation unjustified because either demolition or repair would achieve the City’s asserted goal of protecting citizens from unsafe structures, and whether the owners incurred unreasonable costs to effectuate such repairs was irrelevant. Ultimately, the majority held that to satisfy procedural due process, the City needed to provide not only notice, a hearing, and an impartial decision-maker (which it did), but also a reasonable opportunity to repair (which it did not). Therefore, the ordinance was unconstitutional.
Judge Murray dissented, arguing that the majority should not have addressed procedural due process because it was not properly before the court. He further noted that the ordinance contains only a presumption that a structure requiring repairs that will cost more than the building’s value should be demolished. Because some parties could overcome that presumption, Judge Murray reasoned, the ordinance was not facially invalid.