KENEFICK v. CITY OF BATTLE CREEK (2009)

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 did not violate the Equal Protection Clause. We affirm.

We review a trial court's conclusion that a defendant is entitled to judgment as a matter of law under MCR 2.116(I)(1) de novo. 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. Charter Twp. of Van Buren 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.

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) (quotations 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.” STC, 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 time period, and that meets one of the 12 enumerated conditions in the ordinance. One of the enumerated provisions in the ordinance states that any vacant or abandoned structures that pose 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.

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 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,” 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 context of the language 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 or proscribes. See STC, 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).

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 properties 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 in 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 heightened scrutiny such as gender or illegitimacy, the ordinance is reviewed under the rational-basis test. Muskegon Area Rental Ass'n v. Muskegon, 465 Mich. 456, 464, 636 N.W.2d 751 (2001). Under this test the legislation is presumed constitutional and “courts will uphold legislation as long as that legislation is rationally related to a legitimate government purpose.” Crego, supra at 259-260, 615 N.W.2d 218. This Court need only determine if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). This finding may be based on “rational speculation unsupported by evidence or empirical data.” Id. “[I]n other words, the challenger must ‘negative every conceivable basis which might support’ the legislation.” TIG Ins. Co., Inc. v. Treasury Dep't, 464 Mich. 548, 557-558, 629 N.W.2d 402 (2001), quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973) (emphasis added).

The ordinance's stated purpose is to overcome the detrimental affects of neighborhood blight and reduce enforcement costs associated with the blight. This Court has held “protecting and promoting public health, safety, and general welfare are legitimate governmental interests ․ and protecting aesthetic value is included in the concept of the general welfare.” Norman Corp. v. City of East Tawas, 263 Mich.App. 194, 201, 687 N.W.2d 861 (2004). Thus, the general reduction of blight is undisputedly a legitimate governmental purpose.

The classification is also rationally related to the legitimate governmental purpose of reducing neighborhood blight because there is a “reasonably conceivable state of facts that could provide a rational basis for the classification.” See FCC, supra. Defendant could have reasoned that there are mostly residential structures in areas zoned residential and there are more residences in mixed zoned districts that include residential zoning in Battle Creek. Thus, regulating such structures is the most effective way to reduce neighborhood blight with the resources available. Alternatively, defendant could have concluded residential structures that become vacant and abandoned, perhaps based on past history or experience, pose greater risks of danger to the general health, safety, and welfare of the community because they pose a greater risk for criminal activity. Further, defendant could have reasoned residential structures are more often located in close proximity to other residential structures and that they therefore have a greater impact on the general health, safety, and welfare of the city's residents.

Although the ordinance offers no reasoning in support of the classification, in enacting the ordinance, defendant was not required to articulate a purpose or rationale in support of the classification. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Moreover, under the rational basis test, defendant “has no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. Plaintiff has failed to overcome his substantial burden to “negative every conceivable basis which might support” the ordinance. See Lehnhausen, supra (emphasis added).

Affirmed.

PER CURIAM.