YPSILANTI FIRE MARSHALL V DAVID KIRCHER
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STATE OF MICHIGAN
COURT OF APPEALS
YPSILANTI FIRE MARSHALL, and
CITY OF YPSILANTI,
UNPUBLISHED
June 9, 2009
Plaintiffs-Appellees,
v
No. 281742
Washtenaw Circuit Court
LC No. 04-000825-FH
DAVID KIRCHER,
Defendant-Appellant.
Before: Bandstra, P.J., and Whitbeck and Shapiro, JJ.
PER CURIAM.
In this action to abate a nuisance, defendant, David Kircher, appeals as of right the
October 1, 2007, order of Washtenaw Circuit Judge Donald E. Shelton, allowing plaintiffs to
raze the building located at 107 E. Cross Street in Ypsilanti. We affirm.
This case is another in the long series of disputes between defendant and the City of
Ypsilanti and its Fire Marshal regarding properties owned by defendant in Ypsilanti. As noted
above, at issue here is property owned by defendant at 107 E. Cross Street. This property was
initially damaged in a fire in March 2004; it was further damaged by one or more subsequent
fires while the building was awaiting repair. Plaintiff instituted this action on August 12, 2004,
and filed an amended complaint in October 2005, asserting that the property was dangerous to
the public and remained a fire hazard, and that it constituted a nuisance and should be repaired,
consistent with city ordinances and state statutes, or razed. On October 1, 2007, after affording
defendant ample time to restore the building to an acceptable condition, the trial court declared
the building a nuisance and ordered that it be razed.
Defendant argues that the trial court did not have jurisdiction to decide the nuisance
action because he had not exhausted his administrative remedies with respect to his attempts to
obtain a building permit as provided for in the Still-DeRossett-Hale Single State Construction
Code, MCL 125.1501 et seq. We disagree.
“Whether a court has subject-matter jurisdiction is a question that this Court reviews de
novo.” Charter Twp of Shelby v Papesh, 267 Mich App 92, 109; 704 NW2d 92 (2005). “The
Legislature has conferred on the circuit courts broad equitable jurisdiction over nuisanceabatement proceedings, irrespective of the nature and extent of the particular alleged nuisance.”
Ypsilanti Fire Marshall v Kircher (On Reconsideration), 273 Mich App 496, 527 n 12; 730
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NW2d 481 (2007); City of Detroit v Village of Highland Park, 186 Mich 166, 182; 152 NW
1002 (1915) (“Of the transcendent power in an equity court, under its general jurisdiction, to
restrain and abate a continuing public nuisance for which, by reason of its extent and nature,
there is no plain and adequate legal remedy, there can be no question.”). Additionally, “[a]ll
claims based on or to abate nuisance may be brought in the circuit court. The circuit court may
grant injunctions to stay and prevent nuisance.” MCL 600.2940(1). Because statutory language
clearly gives the trial court jurisdiction over nuisance actions, defendant’s jurisdictional
argument is without merit.
Further, defendant fails to cite any legal authority supporting his position that the circuit
court’s jurisdiction over this nuisance action was affected in any way by defendant’s continuing
and somewhat related administrative efforts to obtain a building permit for the premises. “An
appellant may not merely announce a position and leave it to this Court to discern and rationalize
a basis for his claims, nor may he give issues cursory treatment with little or no citation of
supporting authority. An appellant’s failure to properly address the merits of his assertion of
error constitutes abandonment of the issue.” Houghton v Keller, 256 Mich App 336, 339; 662
NW2d 854 (2003) (internal citations omitted).
Moreover, we note that defendant argues that “[i]n no event did [the] Judge . . . have
jurisdiction over Mr. Kircher’s application for a permit to make repairs to the building . . . .”
However, in the October 1, 2007, order at issue in this appeal, the trial court did not assume
jurisdiction over defendant’s building permit application. Rather, it held that the building was a
nuisance, that defendant had sufficient time to abate the nuisance and that defendant did not do
so. Defendant does not contest these findings. On the record, it was apparent that defendant did
not have plans to abate the nuisance in a way satisfactory to the city, and plaintiffs were
permitted to abate the nuisance. Regardless of the inapposite arguments offered by defendant on
appeal, there can be no doubt that the trial court had jurisdiction to enter its order abating the
nuisance.
Defendant next argues that the trial court’s decision infringed upon his constitutional
rights to private ownership of property. Again, we disagree. As this Court explained in Ypsilanti
Charter Twp v Kircher, 281 Mich App 251, 272; 761 NW2d 761(2008):
The federal and state constitutions both proscribe the taking of private property
for public use without just compensation. US Const, Am V; Const 1963, art 10
§ 2; Adams Outdoor Advertising v East Lansing (After Remand), 463 Mich 17,
23; 614 NW2d 634 (2000). However, the nuisance exception to the prohibition
on unconstitutional takings provides that because no individual has the right to
use his or her property so as to create a nuisance, “the [s]tate has not ‘taken’
anything when it asserts its power to enjoin [a] nuisance-like activity.” Keystone
Bituminous Coal Ass’n v DeBenedictis, 480 US 470, 491 n 20; 107 S Ct 1232; 94
L Ed 2d 472 (1987). Indeed, “[c]ourts have consistently held that a [s]tate need
not provide compensation when it diminishes or destroys the value of property by
stopping illegal activity or abating a public nuisance.” Id. at 492 n 22.
On appeal, defendant does not dispute the trial court’s ultimate conclusion that the building
constituted a nuisance. Therefore, “[b]ecause plaintiff was exercising its legitimate police power
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to abate a public nuisance on defendant’s property, no unconstitutional taking occurred.” Id.;
Kircher (On Reconsideration), supra at 555 n 22.
We affirm.
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
/s/ Douglas B. Shapiro
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