Dangerous Buildings Ordinance

Dangerous Buildings Hearing Officer

Commentary (Revised May 1995)

Sections 138 through 142 of Public Act 167 of 1917, as amended, in Part VII of the Housing Law of Michigan Act (MCLs 125.538 to 125.542), set forth a statutory procedure for the repair and/or removal of “dangerous buildings,” as that term is broadly defined in Section 139 (MCL 125.539). However, Section 1 of the Housing Law (MCL 125.401) clearly authorizes charter townships and general law townships to apply to the township, by ordinance, only those provisions of the Housing Law relating to single-family dwellings and two-family dwellings. As to such dwelling structures, the Housing Law authorizes the township to impose a lien for the demolition or repair costs incurred by the township to bring the property into conformance with the ordinance, and authorizes the township to collect these lien costs by placing them on the property tax roll.

Although the state Housing Law only authorizes townships to adopt by ordinance those provisions in the Housing Law relating to single-family dwellings and two-family dwellings, it is our opinion that all townships also have authority to regulate the maintenance and demolition of other types of buildings and structures, such as commercial and industrial buildings. We believe the enabling authority for such regulation can be found in the general statutes which authorize township boards to adopt ordinances regulating the public health, safety and general welfare of persons and property (MCL 41.181, et seq., and as to charter townships also at MCL 42.15).

In consideration of all the foregoing, a sample Dangerous Building Ordinance has been prepared for review and possible use by townships in Michigan. The ordinance applies to all classes of buildings, with the exception that certain lien/tax roll remedies are restricted to situations involving single-family or two-family dwellings.

As with any sample ordinance, this sample Dangerous Building Ordinance has been prepared as a guideline for use by townships. Certainly no form can be a substitute for legal judgment in every given situation. Consequently, no form should be used unless, after careful review, it is the professional judgment of the local township attorney that the use of the form will accomplish the particular objectives and intentions of the township. Moreover, the local township attorney should be consulted with regard to certain aspects of the enforcement of an ordinance in particular situations; such as, for example, whether a court order should be obtained before the township implements a demolition or repair order to which the property owner has not consented.

With respect to obtaining a court demolition or repair order, please note that Section VIII of this sample ordinance designates the failure to comply with a demolition or repair order as a “municipal civil infraction,” rather than as a misdemeanor. A township using this municipal civil infraction approach should be able to pursue the appropriate demolition or repair order through the civil infraction proceedings in the district court. While it is still permissible to designate a violation of this type of ordinance as a misdemeanor, the district court judge involved with such a misdemeanor prosecution does not have the direct authority to issue demolition or repair orders. Thus, a township designating this type of ordinance as a misdemeanor ordinance rather than as a municipal civil infraction ordinance will likely have to pursue a demolition or repair order in a separate action filed in the circuit court. A township that does desire to enact this type of ordinance as a misdemeanor ordinance should certainly consult the local township attorney for assistance in determining the maximum monetary fine and period of incarceration allowable by law, and for assistance in drafting the appropriate penalty language.

Finally, MTA’s Legal Counsel has noted there is an aspect of the amended Housing Law which is not incorporated into the sample ordinance due to possible constitutional implications. The amended Housing Law allows a registered building official/plan reviewer/inspector who is an employee of the agency charged with enforcement of the ordinance to be a member of a Dangerous Building Board of Appeals. However, this type of situation could be claimed to violate the due process right to an “impartial decisionmaker” in administrative proceedings guaranteed by the federal and state constitutions. The sample ordinance avoids this problem by providing that a registered building official/plan reviewer/inspector who is appointed to the township’s Dangerous Building Board of Appeals may not be an employee of the township’s Dangerous Buildings Ordinance enforcing agency. A township desiring to take advantage of the statutory authorization, notwithstanding this possible constitutional problem, would revise the last sentence of Section IX.B.4. of the sample ordinance to read as follows: The individual may be an employee of the enforcing agency."

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Sample Dangerous Buildings Ordinance

An ordinance to promote the health, safety and welfare of the people of ________ Township, _______ County, Michigan, by regulating the maintenance and safety of certain buildings and structures; to define the classes of buildings and structures affected by the ordinance; to establish administrative requirements and prescribe procedures for the maintenance or demolition of certain buildings and structures; to establish remedies, provide for enforcement, and fix penalties for the violation of this ordinance; and to repeal all ordinances or parts of ordinances in conflict therewith.

THE TOWNSHIP OF _________, _________ COUNTY, MICHIGAN, ORDAINS:

Section I: Title
This ordinance shall be known and cited as the _________ Township Dangerous Buildings Ordinance.

Section II: Definition of Terms
As used in this ordinance, including in this section, the following words and terms shall have the meanings stated herein:

A. "Dangerous building” means any building or structure, residential or otherwise, that has one or more of the following defects or is in one or more of the following conditions:

1. A door, aisle, passageway, stairway or other means of exit does not conform to the Township Fire Code or Township Building Code.

2. A portion of the building or structure is damaged by fire, wind, flood or other cause so that the structural strength or stability of the building or structure is appreciably less than it was before the catastrophe and does not meet the minimum requirements of the Housing Law of Michigan, Public Act 167 of 1917, as amended, (MCL 125.401, et seq.), or the Township Building Code for a new building or structure, purpose or location.

3. A part of the building or structure is likely to fall, become detached or dislodged, or collapse, and injure persons or damage property.

4. A portion of the building or structure has settled to such an extent that walls or other structural portions of the building or structure have materially less resistance to wind than is required in the case of new construction by the Housing Law of Michigan, Public Act 167 of 1917, as amended, (MCL 125.401, et seq.), or the Township Building Code.

5. The building or structure, or a part of the building or structure, because of dilapidation, deterioration, decay, faulty construction, or the removal or movement of some portion of the ground necessary for the support, or for other reason, is likely to partially or completely collapse, or some portion of the foundation or underpinning of the building or structure is likely to fall or give way.

6. The building or structure, or a part of the building or structure, is manifestly unsafe for the purpose for which it is used.

7. The building or structure is damaged by fire, wind or flood, or is dilapidated or deteriorated and becomes an attractive nuisance to children who might play in the building or structure to their danger, or becomes a harbor for vagrants, criminals or immoral persons, or enables persons to resort to the building or structure for committing a nuisance or an unlawful or immoral act.

8. A building or structure used or intended to be used for dwelling purposes, including the adjoining grounds, because of dilapidation, decay, damage, faulty construction or arrangement, or otherwise, is unsanitary or unfit for human habitation, is in a condition that the health officer of the township or county determines is likely to cause sickness or disease, or is likely to injure the health, safety or general welfare of people living in the dwelling.

9. A building or structure is vacant, dilapidated and open at door or window, leaving the interior of the building exposed to the elements or accessible to entrance by trespassers.

10. A building or structure remains unoccupied for a period of 180 consecutive days or longer, and is not listed as being available for sale, lease or rent with a real estate broker licensed under Article 25 of the Occupational Code, Public Act 299 of 1980, (MCL 339.2501, et seq.), or is not publicly offered for sale by the owner. This subdivision does not apply to either of the following:

a. A building or structure as to which the owner or agent does both of the following:

(1) Notifies the Township Police Department or the County Sheriff’s Department (delete one) that the building or structure will remain unoccupied for a period of 180 consecutive days. The notice shall be given by the owner or agent not more than 30 days after the building or structure becomes unoccupied.

(2) Maintains the exterior of the building or structure and adjoining grounds in accordance with this ordinance and the Housing Law of Michigan, Public Act 167 1917, as amended, (MCL 125.401, et seq.), or the Township Building Code.

b. A secondary dwelling of the owner that is regularly unoccupied for a period of 180 days or longer each year, if the owner notifies the Township Police Department or the County Sheriff’s Department (delete one) that the dwelling will remain unoccupied for a period of 180 consecutive days or more each year. An owner who has given the notice prescribed by this subparagraph shall notify the Township Police Department or the County Sheriff’s Department (delete one) not more than 30 days after the dwelling no longer qualifies for this exception. As used in this subparagraph, “secondary dwelling” means a dwelling such as a vacation home, hunting cabin or summer home, that is occupied by the owner or a member of the owner’s family during part of year.

B. "Enforcing agency" means this township, through the Township Building Official and/or such other official(s) or agency as may be designated by the Township Board to enforce this ordinance.

C. "Township Building Code" means the building code administered and enforced in the township pursuant to the Stille-DeRossett-Hale Single State Construction Code Act, Public Act 230 of 1972, as amended, (MCL 125.1501, et seq.).

Section III: Prohibition of Dangerous Buildings
It shall be unlawful for any owner or agent thereof to keep or maintain any building or part thereof which is a dangerous building as defined in this ordinance.

Section IV: Notice of Dangerous Building; Hearing
A. Notice Requirement. Notwithstanding any other provision of this ordinance, if a building or structure is found to be a dangerous building, the enforcing agency shall issue a notice that the building or structure is a dangerous building.

B. Parties Entitled to Notice. The notice shall be served on each owner of or party in interest in the building or structure in whose name the property appears on the last local tax assessment records of the township.

C. Contents of Notice. The notice shall specify the time and place of a hearing on whether the building or structure is a dangerous building and state that the person to whom the notice is directed shall have the opportunity at the hearing to show cause why the Hearing Officer should not order the building or structure to be demolished, otherwise made safe, or properly maintained.

D. Service of Notice. The notice shall be in writing and shall be served upon the person to whom the notice is directed either personally or by certified mail, return receipt requested, addressed to the owner or party in interest at the address shown on the tax records. If a notice is served upon a person by certified mail, a copy of the notice shall also be posted upon a conspicuous part of the building or structure. The notice shall be served upon the owner or party in interest at least 10 days before the date of the hearing included in the notice.

Section V: Dangerous Building Hearing Officer; Duties; Hearing; Order
A. Appointment of Hearing Officer. The Hearing Officer shall be appointed by the Township Supervisor to serve at his or her pleasure. The Hearing Officer shall be a person who has expertise in housing matters, including, but not limited to, an engineer, architect, building contractor, building inspector, or member of a community housing organization. An employee of the enforcing agency shall not be appointed as a Hearing Officer.

B. Filing Dangerous Building Notice with Hearing Officer. The enforcing agency shall file a copy of the notice of the dangerous condition of any building with the Hearing Officer.

C. Hearing Testimony and Decision. At a hearing prescribed by this ordinance, the Hearing Officer shall take testimony of the enforcing agency, the owner of the property, and any interested party. Not more than five days after completion of the hearing, the Hearing Officer shall render a decision either closing the proceedings or ordering the building or structure demolished, otherwise made safe, or properly maintained.

D. Compliance with Hearing Officer Order. If the Hearing Officer determines that the building or structure should be demolished, otherwise made safe, or properly maintained, the Hearing Officer shall so order, fixing a time in the order for the owner, agent or lessee to comply with the order. If the building is a dangerous building under Section II.A.10. of this ordinance, the order may require the owner or agent to maintain the exterior of the building and adjoining grounds owned by the owner of the building including, but not limited to, the maintenance of lawns, trees and shrubs.

E. Noncompliance with Hearing Officer Order/Request to Enforce Order. If the owner, agent or lessee fails to appear or neglects or refuses to comply with the order issued under Section V.D. of this ordinance, the Hearing Officer shall file a report of the findings and a copy of the order with the Township Board not more than five days after noncompliance by the owner and request that necessary action be taken to enforce the order. If the Township Board has established a Dangerous Building Board of Appeals pursuant to Section IX of this ordinance, the Hearing Officer shall file the report of the findings and a copy of the order with the Board of Appeals and request that necessary action be taken to enforce the order. A copy of the findings and order of the Hearing Officer shall be served on the owner, agent or lessee in the manner prescribed in Section IV.D. of this ordinance.

Section VI: Enforcement Hearing Before the Township Board or Dangerous Building Board of Appeals
The Township Board, or the Dangerous Building Board of Appeals, as applicable, shall fix a date not less than 30 days after the hearing prescribed in Section V.C. of this ordinance for a hearing on the findings and order of the Hearing Officer and shall give notice to the owner, agent or lessee in the manner prescribed in Section IV.D. of this ordinance of the time and place of the hearing. At the hearing, the owner, agent or lessee shall be given the opportunity to show cause why the order should not be enforced. The Township Board or the Board of Appeals shall either approve, disapprove or modify the order. If the Township Board or the Board of Appeals approves or modifies the order, the Township Board shall take all necessary action to enforce the order. If the order is approved or modified, the owner, agent or lessee shall comply with the order within 60 days after the date of the hearing under this section. In the case of an order of demolition, if the Township Board or the Board of Appeals determines that the building or structure has been substantially destroyed by fire, wind, flood or other natural disaster and the cost of repair of the building or structure will be greater than the state equalized value of the building or structure, the owner, agent or lessee shall comply with the order of demolition within 21 days after the date of the hearing under this section.

Section VII: Implementation and Enforcement of Remedies
A. Implementation of Order by Township. In the event of the failure or refusal of the owner or party in interest to comply with the decision of the Township Board, or the Board of Appeals, as applicable, the Township Board may, in its discretion, contract for the demolition, making safe or maintaining the exterior of the building or structure or grounds adjoining the building or structure.

B. Reimbursement of Costs. The costs of the demolition, of making the building safe, or of maintaining the exterior of the building or structure or grounds adjoining the building or structure, incurred by the Township to bring the property into conformance with this ordinance shall be reimbursed to the Township by the owner or party in interest in whose name the property appears.

C. Notice of Costs. The owner or party in interest in whose name the property appears upon the last local tax assessment records shall be notified by the township assessor of the amount of the costs of the demolition, of making the building safe, or of maintaining the exterior of the building or structure or grounds adjoining the building or structure, by first class mail at the address shown on the Township records.

D. Lien for Unpaid Costs. If the owner or party in interest fails to pay the costs within 30 days after mailing by the assessor of the notice of the amount of the cost, in the case of a single-family dwelling or a two-family dwelling, the Township shall have a lien for the costs incurred by the Township to bring the property into conformance with this ordinance. The lien shall not take effect until notice of the lien has been filed or recorded as provided by law. A lien provided for in this subsection does not have priority over previously filed or recorded liens and encumbrances. The lien for the costs shall be collected and treated in the same manner as provided for property tax liens under the General Property Tax Act, Public Act 206 of 1893, as amended, (MCL 211.1, et seq.).

E. Court Judgment for Unpaid Costs. In addition to other remedies under this ordinance, the Township may bring an action against the owner of the building or structure for the full cost of the demolition, of making the building safe, or of maintaining the exterior of the building or structure or grounds adjoining the building or structure. In the case of a single-family dwelling or a two-family dwelling, the township shall have a lien on the property for the amount of a judgment obtained pursuant to this subsection. The lien provided for in this subsection shall not take effect until notice of the lien is filed and recorded as provided for by law. The lien does not have priority over prior filed or recorded liens and encumbrances.

F. Enforcement of Judgment. A judgment in an action brought pursuant to Section VII.E. of this ordinance may be enforced against assets of the owner other than the building or structure.

G. Lien for Judgment Amount. In the case of a single-family dwelling or a two-family dwelling the Township shall have a lien for the amount of a judgment obtained pursuant to Section VII.E. of this ordinance against the owner’s interest in all real property located in this state that is owned in whole or in part by the owner of the building or structure against which the judgment is obtained. A lien provided for in this subsection does not take effect until notice of the lien is filed or recorded as provided by law, and the lien does not have priority over prior filed or recorded liens and encumbrances.

Section VIII: Sanction for Nonconformance with Order
Any person or other entity who fails or refuses to comply with an order approved or modified by the Township Board, or Board of Appeals, as applicable, under Section VI of this ordinance within the time prescribed by that Section is responsible for a municipal civil infraction as defined by Michigan law and subject to a civil fine of not more than $500.00, plus costs, which may include all direct or indirect expenses to which the Township has been put in connection with the violation. A violator of this ordinance shall also be subject to such additional sanctions, remedies, and judicial orders as are authorized under Michigan law. Each day a violation of this ordinance continues to exist constitutes a separate violation.

Section IX: Dangerous Building Board of Appeals
A. Establishment and Duties. The Township Board may establish a Dangerous Building Board of Appeals to hear all of the cases and carry out all of the duties of the Township Board described in Section VI of this ordinance. If the Township Board establishes a Board of Appeals, the establishment and operation of the Board of Appeals shall be controlled by the following provisions of this section.

B. Membership. The Board of Appeals shall be appointed by the Township Board and shall consist of the following members:

1. A building contractor;

2. A registered architect or engineer;

3. Two members of the general public;

4. An individual registered as a building official, plan reviewer or inspector under the Building Officials and Inspectors Registration Act, Public Act 54 of 1986, (MCL 338.2301, et seq.). The individual may not be an employee of the enforcing agency.

C. Terms. Board of Appeals members shall be appointed for three years, except that of the members first appointed, two members shall serve for one year, two members shall serve for two years, and one member shall serve for three years. A vacancy created other than by expiration of a term shall be filled for the balance of the unexpired term in the same manner as the original appointment. A member may be reappointed for additional terms.

D. Officers. The Board of Appeals annually shall select a chairperson, vice chairperson and other officers that the Board of Appeals considers necessary.

E. Quorum and Final Action Votes. A majority of the Board of Appeals members appointed and serving constitutes a quorum. Final action of the Board of Appeals shall be only by affirmative vote of a majority of the board members appointed and serving.

F. Compensation and Expenses. The Township Board shall fix the amount of any per diem compensation provided to the members of the Board of Appeals. Expenses of the Board of Appeals incurred in the performance of official duties may be reimbursed as provided by law for employees of the Township Board.

G. Open Meetings Act Applicable. A meeting of the Board of Appeals shall be held pursuant to the Open Meetings Act, PUblic Act 267 of 1976, as amended, (MCL 15.261, et seq.). Public notice of the time, date and place of the meeting shall be given in the manner required by the Open Meetings Act.

H. Freedom of Information Act Applicable. A writing prepared, owned, used, in the possession of, or retained by the Board of Appeals in the performance of an official function shall be made available to the public pursuant to the Freedom of Information Act, Public Act 442 of 1976, as amended, (MCL 15.231, et seq.).

Section X: Appeal of Township Board/Board of Appeals Decision
An owner aggrieved by any final decision or order of the Township Board, or the Board of Appeals, as applicable, under Section VI of this ordinance may appeal the decision or order to the circuit court by filing a petition for an order of superintending control within 20 days from the date of the decision.

Section XI: Severability
The provisions of this ordinance are hereby declared to be severable and if any clause, sentence, word, section or provision is hereafter declared void or unenforceable for any reason by any court of competent jurisdiction, it shall not affect the remainder of such ordinance which shall continue in full force and effect.

Section XII: Repeal
All ordinances or parts of ordinances in conflict herewith are hereby repealed; provided that this ordinance shall not be construed to repeal expressly or by implication any provision of the Township Building Code.

Section XIII: Effective Date
This ordinance shall take effect 30 days after publication as required by law.

The purpose of this sample ordinance is to provide a suggested guideline for the types of items that should be included within an ordinance. Certainly, no sample ordinance should be used unless, after careful review, it is the professional judgment of your legal counsel that using the sample will accomplish the particular objectives and intentions of your township. Although these sample ordinances are the result of much thought and effort, neither the authors nor the Michigan Townships Association assumes any responsibility for the results of using these samples word-for-word in individual cases.