SENATE BILL No. 889

November 10, 2005, Introduced by Senators CHERRY, BRATER, SCHAUER and GOSCHKA and referred to the Committee on Natural Resources and Environmental Affairs.

A bill to amend 1945 PA 246, entitled

"An act to authorize township boards to adopt ordinances and

regulations to secure the public health, safety and general

welfare; to provide for the establishment of a township police

department; to provide for policing of townships by certain law

enforcement officers and agencies; to provide for the publication

of ordinances; to prescribe powers and duties of township boards

and certain local and state officers and agencies; to provide

sanctions; and to repeal all acts and parts of acts in conflict

with the act,"

by amending section 3 (MCL 41.183), as amended by 1999 PA 59, and

by adding sections 7a and 7b.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 3. (1) The township board may provide in a township

ordinance a sanction for violation of the ordinance.

(2) Consistent with any of the following statutes, the

township board may adopt an ordinance that designates a violation

of the ordinance as a civil infraction and provides a civil fine

for that violation:

(a) The Michigan vehicle code, 1949 PA 300, MCL 257.1 to

257.923.

(b) 1969 PA 235, MCL 257.941 to 257.943.

(3) The township board may adopt an ordinance that designates

a violation of the ordinance as a municipal civil infraction and

provides a civil fine for that violation. An ordinance shall not

designate a violation as a municipal civil infraction if that

violation may be designated as a civil infraction under subsection

(2). A statute may provide that a violation of a specific type of

ordinance is a municipal civil infraction whether or not the

ordinance designates the violation as a municipal civil infraction.

(4) An ordinance shall not make an act or omission a municipal

civil infraction or a blight violation if that act or omission

constitutes a crime under any of the following:

(a) Article 7 ~~or section 17766a~~ of the public health code,

1978 PA 368, MCL 333.7101 to 333.7545. ~~and 333.17766a.~~

(b) The Michigan penal code, 1931 PA 328, MCL 750.1 to

750.568.

257.923.

(d) The Michigan liquor control code of 1998, 1998 PA 58, MCL

436.1101 to 436.2303.

(e) Part 801 of the natural resources and environmental

protection act, 1994 PA 451, 324.80101 to 324.80199.

(f) The aeronautics code of the state of Michigan, 1945 PA

327, MCL 259.1 to 259.208.

(g) Part 821 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.82101 to 324.82160.

(h) Part 811 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.81101 to 324.81150.

(i) Sections 351 to 365 of the railroad code of 1993, 1993 PA

354, MCL 462.351 to 462.365.

(j) Any law of this state under which the act or omission is

punishable by imprisonment for more than 93 days.

(5) An ordinance not described in subsection (2) or (3) may

provide a penalty for violation of the ordinance consisting of a

fine not exceeding $500.00 or imprisonment not exceeding 90 days,

or both. However, unless otherwise provided by law, the ordinance

may provide that a violation of the ordinance is punishable by

imprisonment for not more than 93 days or a fine of not more than

$500.00, or both, if the violation substantially corresponds to a

violation of state law that is a misdemeanor for which the maximum

period of imprisonment is 93 days.

(6) The township board may adopt an ordinance that designates

a violation of the ordinance as a blight violation and provides a

civil fine and other sanctions for that violation consistent with

section 7a. An ordinance shall not designate a violation as a

blight violation if that violation may be designated a civil

infraction under subsection (2). An ordinance shall not designate a

violation as both a municipal civil infraction and a blight

violation.

(7) ~~(6)~~ An action for the violation of a township ordinance

shall be instituted in the district court, unless the person

alleged to have violated the ordinance admits responsibility at a

parking violations bureau, or municipal ordinance violation

bureau, or administrative hearings bureau as otherwise provided and

authorized by law. Fines and costs imposed or assessed in such an

action shall be distributed in accordance with section 8379 of the

revised judicature act of 1961, 1961 PA 236, MCL 600.8379.

Sec. 7a. (1) A township, including a charter township, may

establish an administrative hearings bureau to adjudicate and

impose sanctions for violations of charter or ordinances designated

in the charter or ordinance as a blight violation. The bureau may

accept admissions of responsibility for blight violations. Pursuant

to a schedule of civil fines and costs, the bureau may collect

civil fines and costs for blight violations.

(2) The expense of the operation of an administrative hearings

bureau shall be borne by the township establishing the bureau.

(3) An administrative hearings bureau shall not have

jurisdiction over criminal offenses, traffic civil infractions,

municipal civil infractions, or state civil infractions. The bureau

and its hearing officers shall not have the authority to impose a

penalty of incarceration and may not impose a civil fine in excess

of $10,000.00.

(4) A township that establishes an administrative hearings

bureau under this section shall establish by ordinance the

jurisdiction of the bureau for adjudicating alleged blight

violations, making determinations of responsibility, and imposing

sanctions upon those found responsible for a violation. The

township may designate only a violation of any of the following

types of ordinances as a blight violation:

(a) Zoning.

(b) Building or property maintenance.

(d) Disease and sanitation.

(e) Noxious weeds.

(f) Vehicle abandonment, inoperative vehicles, vehicle

impoundment, and municipal vehicle licensing.

(5) To initiate a proceeding for a blight violation, the

township shall issue and serve upon an alleged violator a written

violation notice on which an authorized local official records the

occurrence or existence of 1 or more blight violations by the

person cited and which directs the named person to pay a civil fine

for the violation or appear at the administrative hearings bureau

as provided in this section. A violation notice to appear at an

administrative hearings bureau shall be treated as made under oath

if the violation alleged in the notice occurred in the presence of

the authorized local official signing the violation notice and if

the notice contains the following statement immediately above the

date and signature of the official: "I declare under the penalties

of perjury that the statements above are true to the best of my

information, knowledge, and belief.". An authorized local official

may issue a violation notice to appear if, based upon

investigation, the official has reasonable cause to believe that

the person is responsible for a blight violation and if the

township attorney or an assistant township attorney approves in

writing the issuance of the violation notice.

(6) If a township has a rental inspection program with which a

landlord must register in order to rent premises for residential

purposes and if a landlord of premises rented in the township for

residential purposes is registered with the township's rental

inspection program, the township shall not issue a blight violation

notice during an inspection of the premises unless either of the

following occurs:

(a) The landlord is given a written correction notice of the

violation and a reasonable opportunity to correct the circumstances

before a reinspection of the premises or a date specified in the

notice.

(b) The violation is a direct result of the landlord's action

or inaction and creates an emergency that presents an immediate

risk of harm to people or damage to property including, but not

limited to, a flooded basement or premises without heat.

(7) A township that does not have a rental inspection program,

or does not require a landlord to register as part of a rental

inspection program, shall not issue a blight violation notice to a

landlord of premises rented in the township for residential

purposes during an inspection of the premises unless either of the

following occurs:

(a) The landlord is given a written correction notice of the

violation and a reasonable opportunity to correct the circumstances

before a reinspection of the premises or a date specified in the

notice.

(b) The violation is a direct result of the landlord's action

or inaction and creates an emergency that presents an immediate

risk of harm to people or damage to property, including, but not

limited to, a flooded basement or premises without heat.

(8) The person named in the violation notice shall appear on

or before the time specified in the violation notice and may

respond to the allegations in the notice, as follows:

(a) If the alleged violator wishes to admit responsibility for

the blight violation, the person may do so by appearing in person,

by representation, or by mail. If appearance is made by

representation or mail, the administrative hearings bureau may

accept the admission as though the person personally appeared. Upon

acceptance of the admission, a hearing officer may order any of the

sanctions permitted under this section.

(b) If the alleged violator wishes to deny responsibility for

the blight violation, or admit responsibility with an explanation,

the person may do so by appearing in person on the date scheduled

for the administrative hearing for the purpose of adjudicating the

alleged violation.

order of default may be entered.

(9) If an admission of responsibility is not made and the

civil fine and costs, if any, prescribed by charter or ordinance

for the violation are not paid at the administrative hearings

bureau, and the alleged violator fails to appear at a hearing

scheduled in accordance with this section, a final decision and

order of responsibility in the amount of the prescribed civil fine

and costs may be issued by the administrative hearings bureau.

(10) The township establishing an administrative hearings

bureau shall establish rules and procedures for an alleged violator

to set aside the entry of a decision and order of default.

(11) The ordinance establishing the bureau shall provide for

adjudicatory hearings by hearing officers. Each hearing officer

shall be an attorney licensed to practice law in this state for at

least 5 years. Hearing officers shall be appointed in a manner

consistent with applicable law for the appointment of other

township officers or employees and shall only be removed for

reasonable cause. Before conducting administrative adjudication

proceedings, administrative hearing officers shall successfully

complete a formal training program which includes all of the

following:

(a) Instruction on the rules of procedure of the

administrative hearings that they will conduct.

(b) Orientation to each subject area of the ordinance

violations that they will adjudicate.

(d) Participation in hypothetical cases, including ruling on

evidence and issuing final orders.

(e) The importance of impartiality in the conduct of the

administrative hearing and adjudication of the violation.

(f) Instructions on the preparation of a record that is

adequate for judicial review.

(12) The authority and duties of a hearing officer shall

include all of the following:

(a) Hearing testimony and accepting evidence that is relevant

to the existence of the blight violation.

(b) Issuing subpoenas directing witnesses to appear and give

relevant testimony at the hearing, upon request of a party or a

party's attorney.

and all exhibits and evidence introduced at the hearing.

(d) Issuing a determination, based upon the evidence presented

at the hearing, whether a blight violation exists. The

determination shall be in writing and shall include written

findings of fact, a decision, and an order. The township shall have

the burden of establishing the responsibility of the alleged

violator by a preponderance of the evidence. Unless the burden is

met, the matter shall be dismissed. A decision and an order shall

not be made except upon consideration of the record as a whole or a

portion of the record as may be cited by any party to the

proceeding and as supported by and in accordance with the

competent, material, and substantial evidence. A decision and order

finding the alleged violator responsible for the violation shall

include the civil fine, if any, or any action with which the

violator must comply, or both.

(e) Imposing reasonable and proportionate sanctions consistent

with applicable ordinance provisions and assessing costs upon a

finding that the alleged violator is responsible for the alleged

violation. The maximum monetary civil fine allowed under this

section excludes costs of enforcement or costs imposed to secure

compliance with the township's ordinances and is not applicable to

enforce the collection of any tax imposed and collected by the

township.

(13) In addition to fines and costs imposed under subsection

(12), the hearing officer shall impose a justice system assessment

of $10.00 for each blight violation determination. Upon payment of

the assessment, the township shall transmit the assessment

collected to the state treasury to be deposited into the justice

system fund created in section 181 of the revised judicature act of

1961, 1961 PA 236, MCL 600.181.

(14) A party shall be provided with the opportunity for a

hearing during which they may be represented by counsel, present

witnesses, and cross-examine witnesses. A party may request the

hearing officer to issue subpoenas to direct the attendance and

testimony of relevant witnesses and the production of relevant

documents. Hearings shall be scheduled with reasonable promptness,

except that for hearings scheduled in all nonemergency situations

the alleged violator if he or she requests shall have at least 14

days after service of process to prepare for the hearing. For

purposes of this subsection, "nonemergency situation" means any

situation that does not reasonably constitute a threat to the

public interest, safety, or welfare. If service is provided by

first-class mail, the 14-day period begins to run on the day that

the notice is deposited in the mail.

(15) In an administrative hearing under this section, the

rules of evidence as applied in a nonjury civil case in circuit

court shall be followed as far as practicable, but the hearing

officer may admit and give probative effect to evidence of a type

commonly relied upon by reasonably prudent persons in the conduct

of their affairs. Irrelevant, immaterial, or unduly repetitious

evidence may be excluded. Effect shall be given to the rules of

privilege recognized by law. Objections to offers of evidence may

be made and shall be noted in the record. Subject to these

requirements, the hearing officer, for the purpose of expediting

hearings and when the interests of the parties will not be

substantially prejudiced thereby, may provide in an administrative

hearing or by rule for submission of all or part of the evidence in

written form.

(16) Any final decision by a hearing officer that a blight

violation does or does not exist constitutes a final decision and

order for purposes of judicial review and may be enforced in the

same manner as a judgment entered by a court of competent

jurisdiction.

(17) A party may file an appeal within 28 days after entry of

the decision and order by the hearing officer. An appeal of a final

decision and order of an administrative hearing officer is to the

circuit court.

(18) An alleged violator who appeals a final decision and

order to circuit court shall post with the administrative hearings

bureau, at the time the appeal is taken, a bond equal to the fine

and costs imposed. A party who has paid the fine and costs is not

required to post a bond. If a party who has posted a bond fails to

comply with the requirements of supreme court rules for an appeal

to the circuit court, the appeal may be considered abandoned, and

the bureau may dismiss the appeal on 7 days' notice to the parties.

The administrative hearings bureau must promptly notify the circuit

court of a dismissal, and the circuit court shall dismiss the claim

of appeal. If the appeal is dismissed or the decision and order are

affirmed, the administrative hearings bureau may apply the bond to

the fine and costs. An appeal by the township must be asserted by

the township's attorney and a bond is not required.

(19) An appeal to circuit court shall be a review by the court

of the certified record provided by the administrative hearings

bureau. Pending appeal, and subject to the bond requirement under

subsection (18), the hearing officer may stay the order and any

sanctions or costs imposed. Once an appeal is filed, and subject to

the bond requirement under subsection (18), the court may stay the

order and any sanctions or costs imposed. The court, as

appropriate, may affirm, reverse, or modify the decision or order,

or remand the matter for further proceedings. The court shall hold

unlawful and set aside a decision or order of the hearing officer

if substantial rights of an alleged violator have been prejudiced

because the decision or order is any of the following:

(a) In violation of the constitution or a statute, charter, or

ordinance.

(b) In excess of the authority or jurisdiction of the agency

as conferred by statute, charter, or ordinance.

prejudice to a party.

(d) Not supported by competent, material, and substantial

evidence on the whole record.

(e) Arbitrary, capricious, or clearly an abuse or unwarranted

exercise of discretion.

(f) Affected by other substantial and material error of law.

Sec. 7b. (1) If a defendant does not pay a civil fine or costs

or an installment payment ordered by a hearing officer under

section 7a within 30 days after the date on which payment is due

for a blight violation involving the use or occupation of land or a

building or other structure, the township may obtain a lien against

the land, building, or structure involved in the violation by

recording a copy of the final decision and order requiring payment

of the fines and costs with the register of deeds for the county in

which the land, building, or structure is located. The order shall

not be recorded unless a legal description of the property is

incorporated in or attached to the order. The lien is effective

immediately upon recording of the order with the register of deeds.

(2) The order recorded under subsection (1) with the register

of deeds constitutes notice of the pendency of the lien. In

addition, a written notice of the lien shall be sent by the

township by first-class mail to the owner of record of the land,

building, or structure at the owner's last known address.

(3) The lien may be enforced and discharged by the township in

the manner prescribed by its charter, by the general property tax

act, 1893 PA 206, MCL 211.1 to 211.157, or by an ordinance duly

passed by the governing body of the township. However, property is

not subject to forfeiture, foreclosure, and sale under sections 78

to 79a of the general property tax act, 1893 PA 206, MCL 211.78 to

211.79a, for nonpayment of a civil fine or costs or an installment

ordered under section 7a unless the property is also subject to

forfeiture, foreclosure, and sale under sections 78 to 79a of the

general property tax act, 1893 PA 206, MCL 211.78 to 211.79a, for

delinquent property taxes.

(4) A lien created under this section has priority over any

other lien unless 1 or more of the following apply:

(a) The other lien is a lien for taxes or special assessments.

(b) The other lien is created before May 1, 1994.

(d) The other lien is recorded before the lien under this

section is recorded.

(5) The township may institute an action in a court of

competent jurisdiction for the collection of the judgment imposed

by an order under this section for a blight violation. However, an

attempt by the township to collect the judgment by any process does

not invalidate or waive the lien upon the land, building, or

structure.

(6) A lien provided for by this section shall not continue for

a period longer than 10 years after a copy of the order imposing a

fine or costs, or both, is recorded, unless within that time an

action to enforce the lien is commenced.

(7) A default in the payment of a civil fine or costs under

section 7a or an installment of the fine or costs may be collected

by a means authorized for the enforcement of a court judgment under

chapter 40 or 60 of the revised judicature act of 1961, 1961 PA

236, MCL 600.4001 to 600.4065, and MCL 600.6001 to 600.6098.

Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law: