My colleague and I successfully enjoined the City from compelling property owners to pay for unwanted sidewalks.
My colleague Kenneth Lane and I have been retained by a significant group of homeowners in Royal Oak. The City sent letters demanding that the property owners either install or pay for the City to install sidewalks in front of their homes. These homes are in neighborhoods established prior to World War II and have never had sidewalks. The property owners do not want sidewalks, which will result in the removal of mature trees, eliminate a significant portion of their effective front yards, and reduce the parkable length of their driveways.
The City’s Charter allows it to either pay to construct sidewalks or implement a special assessment process. In order to impose a special assessment, the City must make affirmative findings that the cost of installing the sidewalks is less than the benefit to the property owners through increased property value of the project. If the City makes such findings, the property owners have a right to appeal to the Michigan Tax Tribunal.
Instead, the City ordered the property owners to build the sidewalks based upon an Ordinance. If these property owners could not afford the thousands of dollars being billed to them immediately, they could acquiesce to a special assessment in order to make installment payments.
A City’s Charter is like a constitution. It gives rights to citizens and limits the power of the City. Just as a statute cannot give to rights to the government that exceed the authority given to the government by its constitution, a City ordinance cannot exceed the powers granted to a City by its citizens thought its Charter. Since the City Charter only identifies two funding options, payment of the cost of construction by the City itself or implementation of a special assessment, we argued that the Ordinance violated the Charter. We further argued that the City would benefit from an injunction. The City should not embark upon an expensive infrastructure project without knowing the source of funds to pay for the work. And the source of funds clearly cannot be from billing the homeowners directly.
The Oakland County Circuit Court agreed. It entered an injunction prohibiting sidewalk construction in the area in front of our property owners homes and also enjoining the entire sidewalk improvement project. While this is a preliminary injunction, one of the elements for obtaining a preliminary injunction is the Court’s assessment of the likelihood to prevail on the ultimate merits. Preliminary injunctions often foreshadow ultimate rulings.
It remains to be seen whether the City wishes to continue litigating this issue or whether it will comply with its own Charter.
This dispute was the subject of this article in a local newspaper.
In addition to the eminent domain issues that I frequently post about, I represent property owners in a wide variety of issues including disputes with municipalities and can call upon the expertise of colleagues with overlapping practice areas to provide more effective and efficient services. If you are involved in any conflict with a government agency relating to your property, please feel free to contact me.