Opinion
Docket No. 13557.
Decided February 23, 1973.
Appeal from Oakland, William P. Hampton, J. Submitted Division 2 January 5, 1973, at Lansing. (Docket No. 13557.) Decided February 23, 1973.
Action by Ralph Florio, Director of the Division of Housing Code Enforcement for the City of Pontiac, against Michael F. Chernick and Belle V. Chernick to compel demolition of a residence owned by defendants. Complaint by Michael F. Chernick and Belle V. Chernick against Ralph Florio and Robert Gerds, Chief Building Inspector for the City of Pontiac, for mandamus to compel the issuance of building permits. Cases consolidated for trial. Judgment for plaintiff Florio and Chernicks' action dismissed. The Chernicks appeal. Reversed and remanded with instructions.
Sherman M. Birnkrant, City Law Director, and Thomas E. Hunter, Deputy City Attorney, for appellees.
Schurgin, Katkowski Rosenberg, for appellants.
The Director of the Division of Housing Code Enforcement for the City of Pontiac instituted an action to compel demolition of a single-family residence at 715 Bigham Street, Pontiac, Michigan, owned by Michael F. Chernick and Belle V. Chernick. The action was brought under MCLA 125.521 et seq.; MSA 5.2891(1) et seq., to correct "flagrant violations" of the housing law (the state act was adopted by the City Commission of the City of Pontiac).
Subsequently, the Chernicks brought an action against the director for mandamus to compel the director to issue building permits to enable the Chernicks to make necessary repairs to properties located at 715 Bigham Street and 775 Monticello in Pontiac.
The trial judge consolidated the two cases for trial and held that under "the state housing law that if the costs to rehabilitate exceeds 100 percent of the state equalized valuation this court is authorized to order the buildings to be removed".
The trial judge ordered the buildings removed and dismissed the Chernicks' action against the director.
The trial judge in his opinion stated:
"It is, therefore, the contention of this court that these premises cannot be brought up to code as a new structure; that it would entail completely tearing down the structures and starting from the foundation right up and this would have to be done in compliance with the code as to new structures.
"The court further believes it is economically unfeasible to attempt to say that the cost of repairs greatly exceeded both the state and the city equalized valuation and that in essence the general overall deterioration of the buildings would constitute a conclusion that these buildings are just beyond repair."
It was stipulated that the assessed values of the Bigham property and the Monticello property were $1,100 and $1,200 respectively. Chernick testified that the repair costs were greater than the assessed values.
MCLA 125.405(b); MSA 5.2775(b) states:
"A dwelling damaged by wear and tear, deterioration, and depreciation to such an extent that the cost of repair and rehabilitation to place it in a safe, sound and sanitary condition exceeds 100 per cent of the assessed valuation at the time when the repairs or rehabilitation are to be made, shall not be so repaired or rehabilitated unless the dwelling is made to comply in all respects with the provisions of this act relative to dwellings hereafter erected. A dwelling so damaged by wear and tear, deterioration, and depreciation to such an extent that the cost of repair and rehabilitation shall exceed the assessed valuation shall be deemed unfit for human habitation unless repaired and rehabilitated pursuant to the provisions of this section, and in case such dwelling so damaged is not so repaired and rehabilitated it shall be vacated and demolished and removed." (Emphasis supplied.)
MCLA 125.532; MSA 5.2891(12) provides:
"(1) If, upon inspection, the premises or any part thereof are found to be in violation of any provision of this act, the violation shall be recorded by the enforcing agency in the registry of owners and premises.
"(2) The owner, and in the discretion of the enforcing agency the occupant, shall be notified in writing of the existence of the violation. The notice shall state the date of the inspection, the name of the inspector, the nature of the violation and the time within which the correction shall be completed.
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"(4) The enforcing agency shall reinspect after such reasonable time for the purpose of ascertaining whether the violations have been corrected."
The issue presented here by plaintiffs is not whether the cost of repairs exceeds assessed or equalized valuation, but whether or not, under the state housing law, the owner should have a reasonable time in which to bring his property into conformity with the standards set for new housing.
If the properties are to be repaired it is mandatory that they comply with the code to meet standards of new housing to which appellants agreed during oral argument. If the repairs fail to meet such standards the houses shall be demolished and removed. Under the act, the determination to repair the buildings to comply with the code or remove them is for the Chernicks, not the director or the courts.
MCLA 125.534; MSA 5.2891(14) states:
"(1) If the owner or occupant fails to comply with the order contained in the notice of violation, the enforcing agency may bring an action to enforce the provisions of this act and to abate or enjoin the violation. (Emphasis supplied.)
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"(6) No building shall be removed unless the cost of repair of the building will be greater than the state equalized value of the building."
In the present case the Chernicks sought building permits so they could comply with the orders of the director and correct the violations. The building permits should have been granted and a reasonable time should be set by the court for the completion of repairs and for an inspection, at the peril of demolition.
The cases are reversed and remanded to the trial court for actions consistent with this opinion.
No costs, a public question.
All concurred.