Notice of intent to demolish building “reasonably calculated” to inform owners of pending action

by Andrea Vaage

Yang v. City of Wyoming
Federal 6th Circuit Court of Appeals, July 13, 2015

Ming Kuo Yang and Julie Yang owned a commercial property in Wyoming, Michigan. The Yangs previously rented the property to a series of restaurants; eventually, the property was listed for sale in late 2010. The lease on the last restaurant ended in February 2011. The property was never sold and was then neglected. The owners continued to pay property taxes. In October 2011, city officials posted an abandonment notice on the building. The notice was also mailed to the address of the abandoned building, but listed the former owner as the recipient, not the Yangs. In July 2012, the city sent a “Notice and Order to Repair or Demolish” by signature-required certified mailing to the building address. This notice also listed the former owner as the recipient. Two months later, the post office returned the mail to the city as unclaimed. The City did a title search of the building and identified the Yangs as the correct owner. The City then sent both previous notices to the Yangs’ correct address by certified mail in September 2012.

The City did not receive a response from the Yangs. It then scheduled a hearing about demolishing the property for November 1, 2012. The City sent the Yangs a hearing notice by regular mail and also sent a notice to the Yangs’ realtor. Soon thereafter, the post office returned the original certified mailing to the Yangs as unclaimed. This information was not present. The Yangs did not appear to the hearing on November 1 where the board decided to demolish the property. The property was demolished in January 2013, and a $22,500 bill was sent to the Yangs’ address for the work.

The Yangs then discovered their building was demolished and claimed the city violated their procedural due process rights by demolishing the property without adequate notice. The standard of review is whether the City’s efforts were “reasonably calculated” to inform the Yangs of the action taken on their property. The City of Wyoming attempted to contact the Yangs through posted notices, mailed notices to the Yangs, mailed notice to the realtor, and the post-hearing notice. Michigan caselaw has established that a posted notice is, by itself, an appropriate way to inform a person of the proceedings against him. Another precedent notes that notice mailed to a person’s home address generally satisfies due process requirements. The Yangs argue, however, that notice by itself is not adequate, since the hearing notice did not provide the reasons for demolishing the property and the post-hearing notice would have come too late for the Yangs to prepare to defend themselves.

The Court found that all of the information contained in all of the notices, taken in the aggregate, were sufficient to meet due process requirements. Even though the Yangs did not actually receive notice, as the certified mailing was returned unclaimed, the additional efforts made by the City were reasonable attempts to contact the Yangs. The Court found the city’s attempts at contacting the Yangs were “reasonably calculated” to give the Yangs adequate notice.

Dissent

The dissent argued that the majority misconstrued the facts of the case and the contents of the notices provided by the City. The final four attempts at contacting the Yangs were not adequate because they did not provide the reasons for the potential demolition of the building, providing “less information than the average parking ticket.” The issue wasn’t whether the forms of notice were adequate, but whether the notices actually informed the owner of the issue. In the case, the dissent argues the City failed to provide the reasons for demolition in the follow-up notices and thus violated procedural due process.

Demolition not necessary to correct hazards posed by two historic Detroit structures

by Victoria Heldt

City of Grosse Pointe Park v. Detroit Historic District Commission
(Michigan Court of Appeals, April 19, 2012)

The City of Grosse Pointe Park (the City) wanted to demolish two buildings it owns on East Jefferson Street in Detroit – immediately adjacent to the City – to possibly construct a bus turnaround loop on the property.  One building was built in 1918 and the other in 1920.  In April 2007 the City applied to the Detroit Building Safety and Engineering Department (BS&E Department) for a permit to tear down the buildings, which it received.  Three days later, the BS&E Department issued a “stop work” order.  Since the properties are in a main street overlay area, the Detroit Planning and Development Department needed to sign off on the demolition and construction plans to ensure that it was “consistent with the design standards of the subdivision.”

In May 2007 the Jefferson Avenue Business Association asked the Detroit City council to establish the area as an interim historic district, which it agreed to.  The Historic Designation Advisory Board was ordered to study whether the property qualified for historic-designation status and the Detroit Historic District Commission (DHD commission) was to review the demolition and building permit applications within the scope of the Local Historic Districts Act (LHDA).

During April 2008 the City applied to the DHD commission for permission to demolish the buildings, noting that statue allows demolition where public safety is an issue.  It provided an affidavit from Ronald Supal, a building inspector, in which he stated the properties were “dangerous to human life and public welfare” and recommended they be demolished.  Jack Durbin, a professional engineer, also submitted a report recommending the buildings be razed.  Susan McBride, a staff member of the DHD commission, submitted a report noting that the City had never stated the cost of rehabilitating the building and argued the building should remain due to its historical and architectural value.  She claimed it is “one of the few remaining commercial districts that reflect commercial architecture and suburban development on the east side of Detroit during the 1920’s.”  At a public hearing, the DHD commission denied the application because it did not meet the United States Secretary of Interior’s standards for rehabilitation.

Soon after the hearing, the city council passed an ordinance that established the Jefferson-Chalmers Historic Business District, which included the buildings in question.  In July 2008 the City filed an appeal to the review board challenging the DHD commission’s denial.  It argued that the DHD commission’s decision was arbitrary and capricious since the buildings were only an interim historic district when the application was denied.

In July 2009 the review board affirmed the DHD commission’s denial to demolish.  It noted the level of expertise present in the DHD commission and its authority to decide these matters.  It also found that the opinions the City provided from Supal and Durbin failed to establish that the buildings were a public hazard.  The board took issue with Durbin’s report because it lacked specific facts to support the conclusion.  It further found that the City “failed to establish that demolition was necessary to improve or correct any problematic condition.”  The City appealed in circuit court, which affirmed the review board’s decision.

On appeal, the City claimed that the circuit court misapplied the substantial-evidence test.  The Court disagreed.  It noted that the evidence the City presented was unconvincing.  The pictures provided in Supal’s report showed the deterioration in the buildings was “far less severe than is seen in many buildings which are routinely rehabilitated in Detroit.”  The City argued that buildings needed to be demolished because they did not meet current safety codes.  This claim was not sufficient because code compliance is the most common reason for buildings to be rehabilitated.  It further noted that, even if the buildings were shown to be a hazard to public safety, the City would have needed to prove that the proposed work (demolition) was “necessary to substantially improve or correct” the situation.  The evidence did no such thing.  Rehabilitation, too, could substantially improve or correct the situation. The Court concluded that the review board’s decision to deny the demolition request was reasonable and supported by the evidence.

The City’s last argument was that, according to statute, it was not required to prove the buildings posed an immediate or imminent hazard to the public.  The Court admitted that the words “immediate” and “imminent” are not necessarily contained in the governing statute, but that the specific wording in this case is a minor issue.  The statute clearly provides that an applicant must prove a building is a hazard to the safety of the public.  Additionally, the circuit court did not rule that the building did not constitute an immediate or imminent hazard, but rather that the evidence failed to convince the review board that demolition was necessary.  The Court affirmed the circuit court’s decision.

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