Amicus Brief

David Shoemaker v City of Howell

Case Year: 2014
Case Forum: U.S. Court of Appeals (6th Circuit)
Keywords: property maintenance, ordinance violation, curblawn, due process, berm, street lawn
Amicus Counsel:

Julie O’Connor |O’Connor, DeGrazia, Tamm & O’Connor, P.C. | 40701 Woodward Ave Suite 105 | Bloomfield Hills, MI 48304

CoAmicus Parties:

1. Michigan Municipal League Property & Liability Pool,
2. Michigan Townships Association (MTA),
3. Michigan Bar Public Corporation Law Section (PCLS)


The district court incorrectly found that Plaintiff s procedural due process rights were violated. There is no dispute that Plaintiff had actual, repeated notice of his violation of the ordinance requiring property owners to maintain the outlawn, the area between the sidewalk and the street, and was advised of the violation by an enforcement officer. The City’s ordinance provided for both notice and opportunity for a hearing. Plaintiff failed to avail himself of the process at his disposal and should not be able to use his inaction to claim a violation of due
procedural due process. The district court further concluded that Plaintiff s fundamental substantive due process rights were violated by being forced to abate a nuisance on City property. This erroneous conclusion was premised on the court’s determination that Plaintiff had no property interest in the outlawn. Michigan law provides that the interest conveyed to a municipality for a public way in a statutorily dedicated plat is only nominal title and that no beneficial ownership interest is acquired. No fundamental right was implicated by the ordinance and legitimate governmental interests, including nuisance abatement, public health and aesthetics, supported the validity of the ordinance under rational basis review.


U.S. 6th Circuit Court of Appeals:
We REVERSE the judgment of the district court and REMAND the case with instructions to dismiss Shoemaker’s

MSC requested LDF amicus brief? No

Homeowner in the city planted a tree in the curblawn. The city informed homeowner that this area was private property. Later, the city performed a streetscape on this homeowners street and subsequently removed the tree the homeowner had planted from the curblawn. The city installed other greenery that need to be maintained by homeowners. The Homeowner refused to take care of the curblawn, but did maintain his lawn apart from the curblawn. He received a door hangar notifying him of violation of the city ordinance. He also received two written letters from the city notifying him again of violating the city civil infraction ordinance. He sued the city claiming he was denied due process under the ordinance.

Case Number: 2013-10
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