Amicus Brief

Leon and Marilyn Bonner v City of Brighton

Case Year: 2013
Case Forum: Michigan Supreme Court
Keywords: rational basis, facial challenge, due process, police power
Amicus Counsel:

Mary Massaron Ross | Josephine A. DeLorenzo | Plunkett Cooney | 38503 Woodward Ave., Suite 2000 | Bloomfield Hills, MI 48304 | 313-983-4801


Amicus counsel argues that the City of Brighton Code of Ordinances § 18-59 is neither facially unconstitutional, nor does it violate substantive due process. Facial due process challenges are evaluated by the rational basis standard, and the burden is upon the Bonners to prove that the ordinance is arbitrary and unreasonable, and that there is no factual scenario in which it would be valid. However, the ordinance, which is to demolish unsafe structures because of the potential for crime, decreased property values, costs incurred by the city, and danger to the public, is reasonably related to a permissible legislative objective: protecting the health, safety, and welfare of the public. Also, as the Court of Appeals found, there are certain factual situations where repair efforts cannot be allowed, even though the owner wants to do so. Additionally, counsel contends that the ordinance does not violate procedural due process on its face because Michigan law does not require a right to repair, only notice and an opportunity to be heard, which the ordinance provides, along with a reasonable, rebuttable presumption that a structure will not be repaired if the cost is greater than the value of the building. Therefore, counsel respectfully requests the decision of the Court of Appeals be reversed.


Michigan Supreme Court:
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 proceduresprovide 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 meaningfullyexercise 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.

MSC requested LDF amicus brief? No

Plaintiffs own two residential properties 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 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. Plaintiffs were also informed of the building official’s additional determination that it was unreasonable to repair these structures consistent with the standard set forth in
BCO § 18-59. Consequently, plaintiffs were ordered to demolish the structures within 60 days of the date of the building official’s letter.

Case Number: 2010-22
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