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Kochis v. City of Westland

United States District Court, E.D. Michigan, Southern Division

August 13, 2019

THOMAS R. KOCHIS, and those similarly situated, Plaintiff,



         In this 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.

         I. Background

         Plaintiff 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.

         In or 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.

         On November 13, 2017, Defendant sent Plaintiff a letter concerning the condition of his property.[1] 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.

         Plaintiff 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.

         In his 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.

         The 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.[2]

         Neither 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 do so.

         Plaintiff 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.

         On May 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, respectively.[3]

         In 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 are invalid.

         On 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.

         II. Summary Judgment Standard

         “Summary 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)).

         In 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.

         III. Analysis

         A. Plaintiff's standing to challenge the Weeds Ordinance.

         Defendant 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.

         The 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.[4] 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.

         B. Plaintiff's due process claims.

         In 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 ...

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