Kenefick v. Battle Creek

774 N.W.2d 925

284 Mich. App. 653

KENEFICK v. City of BATTLE CREEK.

Docket No. 282319.

Court of Appeals of Michigan.

Submitted May 6, 2009, at Lansing.

Decided May 19, 2009.

Approved for Publication July 2, 2009, at 9:00 a.m.

Ed Annen, Jr., Kalamazoo, for the plaintiff.

Barbara A. Hobson, City Attorney, for the defendant.

Before: KIRSTEN FRANK KELLY, P.J., and MARK J. CAVANAGH and BECKERING, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court's dismissal of his complaint for declaratory relief challenging the constitutionality of a Battle Creek city ordinance. The trial court dismissed the complaint pursuant to MCR 2.116(I)(1) after determining that judgment as a matter of law was appropriate because the ordinance is not unconstitutionally vague and does not violate the Equal Protection Clause. We affirm.

We review de novo a trial court's conclusion that a defendant is entitled to judgment as a matter of law under MCR 2.116(I)(1). Sobiecki v. Dep't of Corrections, 271 Mich.App. 139, 141, 721 N.W.2d 229 (2006). Similarly, we review de novo whether an ordinance is unconstitutional. Van Buren Charter Twp. v. Garter Belt, Inc., 258 Mich.App. 594, 627, 673 N.W.2d 111 (2003). Pursuant to MCR 2.116(I)(1), "[i]f the pleadings show that a party is entitled to judgment as a matter of law ... the court shall render judgment without delay." Judgment as a matter of law is proper when no factual dispute exists and only questions of law are at issue. Sobiecki, supra at 141, 721 N.W.2d 229.

Plaintiff first contends that Battle Creek Code of Ordinances Chapter 1456 (the ordinance) is unconstitutionally vague on its face. "All statutes and ordinances are presumed to be constitutional and are construed so unless their unconstitutionality is clearly apparent." Houdek v. Centerville Twp., 276 Mich.App. 568, 573, 741 N.W.2d 587 (2007). "The party challenging the facial constitutionality of an act must establish that no set of circumstances exists under which the [a]ct would be valid." Straus v. Governor, 459 Mich. 526, 543, 592 N.W.2d 53 (1999) (quotation marks and citations omitted). An act is void for vagueness if "(1) it is overbroad and impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) it gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated." Proctor v. White Lake Twp. Police Dep't, 248 Mich.App. 457, 467, 639 N.W.2d 332 (2001). Plaintiff contends that the ordinance does not provide fair notice of the conduct it regulates and that defendant has unlimited discretion in applying the ordinance.

To provide fair notice, an ordinance "must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or required." S.T.C., Inc. v. Dep't of Treasury, 257 Mich. App. 528, 539, 669 N.W.2d 594 (2003). "The statute cannot use terms that require persons of ordinary intelligence to guess its meaning and differ about its application." People v. Noble, 238 Mich.App. 647, 652, 608 N.W.2d 123 (1999). "A statute is sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words." Id.

Here, the ordinance requires "owners of abandoned residential structures" to pay a monitoring fee. The ordinance defines "abandoned structure" as a structure that has become "vacant or abandoned" for a given period and that meets one of 12 enumerated conditions in the ordinance. One of the enumerated provisions in the ordinance states that any vacant or abandoned structure that poses a "potential hazard or danger to persons" constitutes an "abandoned" structure for purposes of the ordinance. Plaintiff contends that the terms "vacant" and "abandoned" and "potential hazard or danger to persons" are unduly vague.

A review of common dictionary definitions of the words used in the ordinance leads to the conclusion that the ordinance is not unduly vague. See id. The word "abandoned" is defined as "forsaken or deserted." Random House Webster's College Dictionary (1997). "Vacant" is defined as "having no contents; empty; void ... having no occupant; unoccupied." Id. These definitions indicate that a residential structure that is left unoccupied, empty, or deserted is subject to the provisions of the ordinance.

With regard to the phrase "potential hazard or danger to persons," "potential" is defined as "possible as opposed to actual ... capable of being or becoming"; "hazard" is defined in part as "something causing danger, peril, risk"; and "danger" is defined as "liability or exposure to harm or injury; risk; peril ... an instance or cause of peril; menace." Random House Webster's College Dictionary (1997). Therefore, the phrase "potential hazard or danger to persons," as used in the ordinance, requires vacant or abandoned structures that pose a risk of peril, harm or injury, or are a menace, be subject to the monitoring fees. When these common dictionary definitions are viewed in the context of the entire ordinance, the stated purpose of which is to eliminate dangerous and unsightly blight, we conclude that a person of ordinary intelligence would be placed on fair notice of what the ordinance requires. See S.T.C., Inc, supra.

Plaintiff also contends the ordinance is void for vagueness because it allows defendant to enforce the ordinance in an arbitrary manner. In determining if an act inappropriately allows for arbitrary enforcement, we examine the act to determine if it "provides standards for enforcing and administering the laws in order to ensure that the enforcement is not arbitrary or discriminatory...." English v. Blue Cross Blue Shield of Michigan, 263 Mich.App. 449, 469, 688 N.W.2d 523 (2004) (quotation marks and citations omitted).

This ordinance does not provide unlimited discretion to defendant. The clear language of the ordinance states that any owner of an "abandoned residential structure shall register such propert[y] with the City and pay a monthly administration fee." Battle Creek Code of Ordinances Chapter 1456, § 3 (emphasis added). Defendant does not have discretion to apply the monitoring fees to structures that fall within the definition of an "abandoned" or "vacant" structure as the ordinance states that an owner of such structure "shall pay" certain fees. The word "shall" indicates mandatory conduct. AFSCME v. Detroit, 252 Mich.App. 293, 311, 652 N.W.2d 240 (2002). Additionally, there is no evidence on the record suggesting that defendant acts in an arbitrary manner when applying the provisions of the ordinance.

Next, plaintiff contends the ordinance violates the Equal Protection Clause because it singles out owners of residential structures from owners of all other types of structures. In addressing whether a law violates the Equal Protection Clause, a court must determine which level of review applies. Crego v. Coleman, 463 Mich. 248, 259, 615 N.W.2d 218 (2000). When an ordinance, such as the one here, classifies individuals on the basis of anything other than a suspect class, or a class receiving...