HOW TO FIGHT CITY HALL, PART 1

A city ordinance cannot give the city powers beyond those delegated to it by its citizens in its charter.

I recently obtained an injunction against the City of Royal Oak preventing it from compelling property owners to pay for new sidewalks that they do not want in the City’s right of way.  In that case, the City’s Charter allows it to construct sidewalks and pay for them either itself or by implementing a special assessment.  In order to impose a special assessment, the City must make findings of fact that are subject to review by the Michigan Tax Tribunal.   However, the City implemented an ordinance allowing it to order homeowners to construct sidewalks.  If the homeowner did not construct the sidewalk, the ordinance allowed the City to bill the cost of sidewalk construction to the homeowner and demand immediate payment.

This ordinance is illegal because it gives powers to the City that were never authorized by its citizens.  A charter is the equivalent of a constitution.  It limits the powers of a city to those conveyed to the city by its citizens through the passage of a charter. 

This issue was addressed by the Michigan Supreme Court in a case, ironically enough, involving sidewalks in Grand Rapids.  “An ordinance enacted by the governing body of a home rule city is valid only… if it falls within the scope of authority delegated by the electorate in the city's charter.”  Bivens v Grand Rapids, 443 Mich 391, 397; 505 NW2d 239 (1993).   In Bivens, the Supreme Court held that an ordinance demanding that property owners indemnify Grand Rapids against claims caused by defective sidewalks was invalid because it exceeded charter authority.  “[T]he 1918 charter provision imposes upon property owners only a limited public duty with respect to abutting sidewalks.”  Id., at 399.  But “the ordinance… represents a wide and inconsistent departure from the charter provision approved earlier by the Grand Rapids voters.”  Id.  The ordinance was overturned because “a city may not validly enact an ordinance that contradicts limitations expressly provided in the city's charter,” which “stands as its ‘constitution.’”  Id., at 400-401.  For that reason, “an ordinance must conform to, be subordinate to, not conflict with, and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state.”  Id., at 401.

From a practical perspective, if a city makes demands, it is not enough to determine whether an ordinance allows the city to act.  As was demonstrated by both the Royal Oak case that I am currently handling and the Bivens decision, cities will sometimes enact ordinances allowing them to act in a way not allowed.  Therefore, it is important to examine not only whether an ordinance authorizes a city to act but also evaluate whether the ordinance comports with the city’s charter.

If you have are experiencing any conflicts with your local municipality, please feel free to contact me.