United States District Court, E.D. Michigan, Southern Division
THOMAS R. KOCHIS, and those similarly situated, Plaintiff,
CITY OF WESTLAND Defendant.
ORDER AND OPINION GRANTING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT 
G. EDMUNDS UNITED STATES DISTRICT JUDGE.
putative class action, Plaintiff Thomas R. Kochis challenges
the constitutionality of Defendant City of Westland's
debris removal and nuisance ordinances. Pending before the
Court is Defendant's motion for summary judgment. (ECF
No. 17.) Plaintiff opposes the motion. On July 17, 2019, the
Court held a hearing in connection with the motion. For the
reasons set forth below, the Court GRANTS IN
PART and DENIES IN PART
Defendant's motion for summary judgment.
Thomas Kochis is the owner of real property located in the
City of Westland. The property is located at 33512 Berville,
Westland, MI 48185. The property is not Plaintiff's
primary residence; it is a rental property. The property is
managed by Garner Management & Associates.
around the early part of November 2017, Plaintiff's
tenant moved out of the property. The tenant left a pile of
discarded household items, junk, garbage, and debris on the
side of the street. The discarded items were located in a
public right of way, but on Plaintiff's property.
According to Defendant, the abandoned items sat on
Plaintiff's property for several weeks.
November 13, 2017, Defendant sent Plaintiff a letter
concerning the condition of his property. In the letter,
Defendant informed Plaintiff that his property was in
violation of Westland City Code § 83-2, which applies to
abandoned personal property. The letter informed Plaintiff
that pursuant to City Code § 83-2, Plaintiff had 72
hours to remove the abandoned personal property from the
premises. The letter provided Plaintiff with a phone number
and e-mail address to contact if he had any questions
regarding the violation or the notice. The letter did not
specifically state that penalties would be assessed if
Plaintiff failed to remove the property within 72 hours. The
letter also did not specifically state if or when Defendant
would exercise its own remedial measures if Plaintiff did not
act within 72 hours.
received the letter and forwarded it to his property manager.
On November 22, 2017, Defendant sent a contractor to remove
the abandoned personal property and debris from
Plaintiff's property. Unbeknownst to Defendant,
Plaintiff's property manager had simultaneously arranged
for its own contractor to dispose of the abandoned personal
property. However, Defendant's contractor reached the
property first and removed the abandoned personal property.
affidavit, Plaintiff states he did not receive the letter
from Defendant until after the 72-hour deadline had expired.
Defendant does not contest this statement. But as Defendant
notes, there is no dispute Plaintiff received the letter and
that Plaintiff's property manager was preparing to act on
the violation on or before November 22, 2017. There is also
no dispute that neither Plaintiff nor his property manager
contacted or attempted to contact Defendant, took steps to
investigate the violation, or made any inquiries into the
status of the property clean up.
items picked up by Defendant's contractor were
photographed, but not weighed or measured. On November 24,
2017, Defendant sent Plaintiff an invoice in the amount of
$1009.00 for “lot clean up with debris removal for
33512 Berville.” The invoice contained a due date of
December 28, 2018. Defendant incurred $449.00 in actual costs
to remove the abandoned personal property from
Plaintiff's lawn, and Defendant concedes that the amount
of the invoice exceeds the amount it directly paid to its
vendor for the removal. In addition to the cost of removing
the abandoned personal property from Plaintiff's
property, Defendant claims it also incurred costs associated
with disposing of the debris, which is reflected in a
separate invoice. The total of that invoice is $2450.00, and
according to Defendant, an unspecified portion of that
invoice is attributable to Plaintiff's violation.
Defendant states the remaining amounts of the $1009 invoice
represent internal administrative costs, but Defendant
provides no detail or explanation of how these amounts were
calculated or how it reached the $1009 figure.
the invoice issued to Plaintiff nor Chapter 83 of the City
Code sets forth a process for a property owner to formally
dispute a violation or an invoice charge for removal of
abandoned personal property. The invoice only provides a
contact phone number for the Westland Department of
Neighborhood Services. On December 07, 2017, Plaintiff's
property manager contacted Defendant to obtain information
about the charges. Initially, Defendant refused to provide
any information without a Freedom of Information Act request,
but eventually acquiesced to Plaintiff's informal
request. It is unclear from the documentary record whether
Plaintiff attempted to dispute the charges, or just sought
additional information from Defendant. However, in
Plaintiff's affidavit, he states that he wanted to
dispute the charges but that there was no process for him to
did not pay the invoice by its due date. In accordance with
Westland City Code § 83-5, the unpaid invoice was placed
on Plaintiff's property tax bill for 2018. According to
Defendant, the invoice was ultimately paid by Plaintiff's
mortgagee escrow account on or about August 15, 2018.
08, 2018, Plaintiff initiated this putative class action.
Although Plaintiff's violation arose under Westland City
Code Chapter 83 and the basis for the charges assessed to
Plaintiff appears to arise under § 83-5, in his
complaint, Plaintiff challenges the constitutionality of two
different parts of the City Code: Chapters 22 and 42. Chapter
22 of the City Code formally adopts the International
Property Maintenance Code with certain amendments to the
IPMC's noxious weed removal provisions. Chapter 42 of the
City Code authorizes the removal of nuisances from real
property under certain conditions and the charging of fees
for the costs of removal. Plaintiff refers to these two
chapters as the Weeds Ordinance and the Nuisance Ordinance,
counts one and three of his complaint, Plaintiff asserts the
Weeds and Nuisance Ordinances violate the due process rights
of Plaintiff and all other property owners because the
ordinances do not provide adequate pre-deprivation and
post-deprivation remedies to owners found to be in violation.
In count two, Plaintiff claims the fees charged by Defendant
under the Weeds and Nuisance Ordinances, which are sometimes
double the actual expenses incurred by Defendant, violate the
Eighth Amendment. In counts four and five, Plaintiff asserts
claims for unjust enrichment, restitution, and assumpsit
based on Defendant's allegedly unjust and unlawful
collection of fees under the Weeds and Nuisance Ordinances.
Finally, in Count Six, Plaintiff alleges violations of
Article 9, Section 31 of the Michigan Constitution and
asserts that the fees charged by Defendant are really an
unapproved tax on property owners. Plaintiff seeks to recover
damages allegedly caused by Defendant's constitutional
violations, and specifically seeks to recover all amounts
paid to Defendant under its Weeds and Nuisance Ordinances.
Plaintiff also asks the Court to declare that all liens
placed on properties under the Weeds and Nuisance Ordinances
January 21, 2019, Plaintiff filed his motion for class
certification. (ECF No. 13.) The Court permitted Defendant to
file a motion for summary judgment prior to responding to
Plaintiff's class certification motion to resolve certain
threshold issues. On May 10, 2019, Defendant filed its motion
for summary judgment, which is now before the Court.
Summary Judgment Standard
judgment is proper only if the moving party shows that the
record does not reveal a ‘genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.'” Benison v. Ross, 765 F.3d
649, 658 (6th Cir. 2014) (quoting Fed.R.Civ.P. 56(a)). A
genuine issue of material fact exists when there are
“disputes over facts that might affect the outcome of
the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But
“[w]here the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citing First Nat. Bank of Ariz. v. Cities
Servs. Co., 391 U.S. 253, 289 (1968)).
addition, once the moving party has met its burden, the
non-moving party must make a “showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Bormuth v.
Cty. of Jackson, 870 F.3d 494, 503 (6th Cir. 2017). The
non-moving party must present some evidence in support of its
complaint to defeat a motion for summary judgment and show
that a genuine issue for trial exists-i.e., that a reasonable
jury could return a verdict for the non-moving party. See
Anderson, 477 U.S. at 248.
Plaintiff's standing to challenge the Weeds
argues Plaintiff lacks standing to raise a due process
challenge to the Weeds Ordinance because Plaintiff was never
charged fees for the abatement of noxious weeds and therefore
does not have an actual injury in connection with that
ordinance. Without citing to any authority, Plaintiff
contends it has standing because the statute for assessing
abatement charges against an owner for both debris and weeds
is the same, and therefore Plaintiff has standing as class
representative to challenge all charges improperly levied
under that ordinance.
Court agrees with Defendant that Plaintiff lacks standing to
assert violations of the Weeds Ordinance under the facts and
circumstances presented here. Plaintiff's complaint does
not seek a declaration that the Weeds Ordinance is facially
unconstitutional. And Plaintiff presents no evidence
indicating he suffered any injuries under the Weeds
Ordinance. Plaintiff's violation arose under City Code
§ 83-2. The only apparent connection between the Weeds
Ordinance and Chapter 83 is that a violation of Chapter 83
may also be a violation of Chapter 22, which contains the
Weeds Ordinance. There does not appear to be any other
connection between Chapter 83 and the Weeds Ordinance. To the
extent Plaintiff's claims are based on the Weeds
Ordinance they are dismissed.
Plaintiff's due process claims.
count one of the complaint, Plaintiff alleges the Weeds and
Nuisance Ordinances violate his due process rights under the
Fifth Amendment because they enable Defendant to charge
property owners fees without adequate pre-deprivation or
post-deprivation procedures. Plaintiff also claims Defendant
“violates the rights of Plaintiff and others similarly
situated by charging fees that are hundreds of thousands of
dollars greater than the expense paid by the City.” In
count three, Plaintiff alleges the Weeds and Nuisance
Ordinances violate the Fourteenth Amendment because the
Michigan Constitution provides a right of appeal from a final
order of an ...