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Potholes in the Motor City: How Vacant Properties and Neighborhood Stabilization Can Subject Detroit and Similarly Situated Municipalities to Liability

KIM KROHA∗

ABSTRACT
In the wake of foreclosures and declining population in industrial areas, many vacant buildings and abandoned land sit within the City of Detroit’s boundaries. Approximately forty square miles, roughly the size of Miami Beach, is completely vacant. To combat the problem, Detroit is acquiring abandoned property and demolishing abandoned and dangerous structures. Detroit also began an initiative to “right-size” the city’s population and services into viable areas, reducing or eliminating city services to non-viable areas. Although Detroit is working to stabilize the city, the risk of injury to private parties is significant. To protect taxpayer money and government budgets, a private party can only sue government entities in very limited circumstances. Municipal immunity differs by state—Michigan has broad protections for municipalities. However, there are several ways that the City of Detroit can be held liable for its demolition and “right-size” initiatives. Through a focus on Detroit and Michigan law, this Note discusses governmental immunity law and how municipalities can incur liability through their efforts to fight vacancy and stabilize neighborhoods. Additionally, this Note discusses actions that municipalities can take to limit liability from injury caused by these efforts.
∗ Candidate for Juris Doctor, New England Law | Boston (2013). B.S., Finance, magna cum laude, Florida Atlantic University (2002). I would like to thank my husband, family, and friends for their continued support, especially my Michigan friends and family for keeping me updated on local flavor and new developments to this topic. I would also like to thank the Law Review staff for their valuable editing and polishing.

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INTRODUCTION
n cities and towns across the United States, local governments are absorbing large quantities of vacant and abandoned properties.1 The 138 square-mile City of Detroit is one of the hardest hit areas in the country; it suffers from a budget crisis and tremendous vacancy.2 Detroit has seen a mass exodus in population; in 2010 the population dropped to 713,777, less than it was almost a hundred years earlier.3 To combat the glut of vacant structures caused by the declining population, Mayor Dave Bing announced an initiative in 2010 to knock down 10,000 vacant structures during his first term in office, through 2013, and to “right-size” the city’s population by encouraging relocation into viable areas.4 Vacant land in Detroit—approximately forty square miles—is roughly the size of Miami Beach.5 The “right-size” initiative includes encouraging property owners to relocate into designated viable communities and reducing services to designated non-viable communities.6 Using the City of Detroit and Michigan Law as a case study, this Note will review governmental immunity law and how municipalities

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1 Brian Louis, Rust Belt Cities Demolish Homes as Defaults Blight Neighborhoods, BLOOMBERG (Nov. 18, 2010, 12:01 AM), http://www.bloomberg.com/news/2010-11-18/rust-belt-cities

-demolish-homes-as-foreclosures-blight-cleveland-detroit.html (discussing demolition efforts of vacant structures in Rust Belt cities). 2 See id.; Review Team to Examine Detroit Finances, MICHIGAN.GOV (Dec. 27, 2011), http://www.michigan.gov/business/0,4539,7-255--268150--,00.html; SE. MICH. COUNCIL
OF GOV’TS, HISTORICAL POPULATION AND EMPLOYMENT BY MINOR CIVIL DIVISION tbl.3 (2002), available at http://library.semcog.org/InmagicGenie/ DocumentFolder/HistoricalPopulation

SEMI.pdf. 3 Compare SE. MICH. COUNCIL OF GOV’TS, supra note 2 (listing Detroit’s population in 1920 at 993,678), with U.S. CENSUS BUREAU, Detroit (city), Michigan, QUICKFACTS.CENSUS.GOV, http://quickfacts.census.gov/qfd/states/26/2622000.html (last visited Apr. 13, 2013) [hereinafter STATE & COUNTY QUICKFACTS] (listing Detroit’s population in 2010 at 713,777).
4 Dave Bing, Mayor of Detroit, State of the City 2010 (Mar. 23, 2010), available at http://www.detroitmi.gov/Portals/0/docs/mayor/SOC_3-23-10.pdf; Edward L. Glaeser, Shrinking Detroit Back to Greatness, N.Y. TIMES (Mar. 16, 2010, 6:56 AM), http://economix.blogs.nytimes.com/2010/03/16/shrinking-detroit-back-to-greatness/; Residential Demolition Program, DETROIT.GOV, http://www.detroitmi.gov/Departmentsand

Agencies/MayorsOffice/ResidentialDemolitionProgram/tabid/2992/Default.aspx (last visited Apr. 13, 2013). 5 Kate Davidson, Detroit Has Tons of Vacant Land. But Forty Square Miles?, CHANGING GEARS (Apr. 18, 2012, 8:29 AM), http://www.changinggears.info/2012/04/18/detroit-has-tons-ofvacant-land-but-forty-square-miles.
6 See Realities, DETROIT WORKS PROJECT, http://detroitworksproject.com/planning/realities/ (last visited Apr. 13, 2013).

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attempting to remedy vacancy issues can incur liability. Although municipalities have immunity from many tort claims, there are exceptions differing by jurisdiction that allow municipal liability for tort actions. Part I of this Note will review Detroit’s population decline and vacant building problem that affects the city. Part II will review municipal immunity law in Michigan and existing and potential immunity exceptions. Part III will discuss how Detroit can be subject to liability for claims based on vacant property acquisition, demolition, expansive property ownership, “rightsizing” Detroit, and the use of federal Neighborhood Stabilization Program funds to further these initiatives. In that regard, Part III will further explore how Detroit should: (a) make sure any profits earned from real estate dispositions are used for other real estate development to help avoid the proprietary exception; (b) obtain waivers from invitees on government-owned property where possible and post no trespassing signs on property where the public is not invited; (c) avoid gaining any financial advantages when purchasing private properties in areas the city deems to be less viable in its campaign to “right-size” the city’s population into designated and viable areas; and (d) maintain close control on procedures for acquiring property to ensure all notice and statutory requirements are met. Although Detroit cannot fully shield itself from liability, certain efforts can reduce liability risks and thereby protect reduced budgets and benefit neighborhood stabilization. I. Vacancy Issues After Decline of the Once Vibrant City of Detroit

Detroit recorded almost two million city residents at its height in 1950.7 Since that height, Detroit’s population steadily declined to less than half in 2011.8 Moreover, the population dropped a staggering 25% between 2000 and 2010.9 The declining population created a surplus of housing, buildings, and vacant property lots in the city.10 To combat the problem, the Detroit has been demolishing tens of thousands of vacant buildings since 1990.11 Even in 2002, before the housing bubble burst, the Detroit spent an estimated $800,000 maintaining vacant lots.12 The problem is even more prevalent now: of the 349,170

SE. MICH. COUNCIL OF GOV’TS, supra note 2 (noting a 1950 population of 1,849,568). STATE & COUNTY QUICKFACTS, supra note 3. 9 Id.; Katharine Q. Seelye, Detroit Census Confirms a Desertion Like No Other, N.Y. TIMES (Mar. 22, 2011), http://www.nytimes.com /2011/03/23/us/23detroit.html.
8 10 Jodi Wilgoren, Detroit Urban Renewal Without the Renewal, N.Y. TIMES (July 7, 2002), http://www.nytimes.com/2002/07/07/us/detroit-urban-renewal-without-the-renewal.html. 11 12

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Id. Id.

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housing units listed in the 2010 Census, almost 23% are vacant.13 Vacant buildings are often unmanaged and dangerous.14 “Uninhabited structures are targets for graffiti and vandalism, provide a haven for illegal drug activity, and encourage unlawful possession of property, circumstances that can have a spiraling and amplifying effect on surrounding property conditions.”15 A study in Austin, Texas found vacant properties to be highly susceptible to use for illegal activities.16 The study found that 34% of abandoned properties surveyed (and if unsecured 83%) were used for illegal activities.17 Vacant and abandoned properties, together with lack of employment and poverty, led Detroit to the number one spot on the 2009 Forbes list of ten most dangerous cities.18 Regarding Detroit’s decline, author Thomas J. Sugrue wrote, “Factories that once provided tens of thousands of jobs now stand as hollow shells, windows broken, mute testimony to a lost industrial past.”19 As of October 2012, Detroit Mayor Dave Bing demolished over 5,100 structures of the 10,000 structure goal announced in 2010.20 Properties acquired in connection with the initiative will add to the 40,000 vacant lots (over 5,000 lots with structures) already owned by the city.21 Primarily funded by the Neighborhood Stabilization Program, Detroit’s demolition initiative operates predominately on the forty-seven million dollars it receives from this federal program.22 From these federal funds,

13 SEMCOG, 2010 Census Data for City of Detroit Neighborhoods, QUICK FACTS (April 5, 2011), http://library.semcog.org/InmagicGenie/DocumentFolder/2010CensusDataDetroitQuickFacts. pdf. 14 John Bailey, Vacant Properties and Smart Growth: Creating Opportunity from Abandonment, in 1 LIVABLE COMMUNITIES @ WORK 1, 1, 5 (Cheryl Little ed. 2004), available at http://www. fundersnetwork.org/files/learn/LCW_4_Vacant_Properties.pdf. 15 Keith H. Hirokawa & Ira Gonzalez, Regulating Vacant Property, 42 URB. LAW. 627, 628-29 (2010).

Bailey, supra note 14, at 5. Id. 18 Zack O’Malley Greenburg, America’s Most Dangerous Cities, FORBES (Apr. 23, 2009, 6:00 PM), http://www.forbes.com/2009/04/23/most-dangerous-cities-lifestyle-real-estate-dangerous -american-cities.html. 19 THOMAS J. SUGRUE, THE ORIGINS OF THE URBAN CRISIS: RACE AND INEQUALITY IN POSTWAR DETROIT 3 (1st Princeton Class ed. 2005).
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Bing, supra note 4; Residential Demolition Program, supra note 4. Christine MacDonald, Vacant Homes Stoke Woes in Detroit, DETROIT NEWS, Dec. 26, 2011, at A3, available at 2011 WLNR 26604890.
21 22 DOUGLASS J. DIGGS & MARJA M. WINTERS, CITY OF DETROIT PLANNING AND DEVELOPMENT DEPARTMENT: NEIGHBORHOOD STABILIZATION PROGRAM PLAN 32

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approximately fourteen million dollars is slated for demolition and four million dollars for acquisition.23 However, fourteen million dollars will only provide for about 1,100 demolition projects.24 The demolition initiative is part of the “right-size” plan to bring larger neighborhood stabilization to Detroit.25 The City of Detroit plans to invest in its most stable neighborhoods in an attempt to centralize the population, allowing the city to focus funds and services to certain areas for residents in the city.26 However, the city’s efforts to acquire foreclosed property, relocate residents, own and manage additional properties, and redevelop former private property for more viable uses can expose the city to liability.27 Although Michigan law provides municipalities immunity from liability in many situations, the City of Detroit’s “right-sizing” initiatives could expose it to liability.28 The city needs to limit liability claims and costs, particularly because of major budget constraints, which reduced the 2012-2013 budget by 16% from the prior year.29 II. Liability Pitfalls: Exceptions to Municipal Immunity Governmental immunity is a valued principal in the United States of America.30 Derived from English jurisprudence, governmental immunity originated from the idea that no court had jurisdiction to bring a claim

(2009) [hereinafter DETROIT NSP PLAN], available at http://www.ci.detroit.mi.us/Portals/0/ docs/planning/pdf/NSP_Approved/detroitNSP_R31_29_09_2.pdf. 23 Id. 24 City of Detroit Planning and Dev. Dep’t, Neighborhood Stabilization Program Frequently Asked Questions, DETROITMI.GOV (Dec. 17, 2009), http://www.detroitmi.gov/Portals/0/docs/ planning/pdf/NSP2010/NSP%20FAQ%2012-17-09%20rev.pdf. See DETROIT NSP PLAN, supra note 22, at 5-6. See id. at 7 (“Detroit also plans to use NSP funds to demolish properties on a concentrated, limited basis in more stable neighborhoods to rid communities of problem properties, but on a larger basis in neighborhoods . . . where a housing revitalization strategy is unlikely to be successful in the short term.”).
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See infra Part III. Id. 29 Barry Wood, Out of Money, Detroit Cuts Back, Fights Back, MARKETWATCH (Aug. 28, 2012), http://articles.marketwatch.com/2012-08-28/commentary/33426867_1_detroit-financesmayor-kwame-kilpatrick-emergency-manager.
28 30 See Terence J. Centner, Discerning Immunity for Governmental Entities: Analyzing Legislative Choices, 24 REV. POL’Y RES. 425, 425 (2007) (“[T]he sovereignty enjoyed by the

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13 independent colonies before the ratification of the federal Constitution established the principle of sovereign immunity.”) (alteration to the original).

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against the King.31 The Eleventh Amendment to the United States Constitution established sovereign immunity for the states.32 Although the Eleventh Amendment does not directly protect municipalities, governmental immunity was extended to municipalities through state legislation and judicial interpretation.33 However, states have not provided total immunity for their municipalities. Depending on the state, municipalities can be held liable for: (1) actions that are proprietary in nature;34 (2) dangerous conditions known to the municipality but not readily apparent to the public;35 (3) willful, wanton, gross, or reckless misconduct;36 and (4) actions for which immunity has been explicitly waived by statute or, in some cases, by the municipality’s purchase of liability insurance.37 A. States’ Laws Typically Provide Governmental Immunity for Activities That Are Not Proprietary Functions. Michigan (and other states) extends immunity to municipalities for most activities38 that are strictly governmental in nature, but not for acts conducted in a proprietary function.39 A statute provides municipal

31 Mark L. Van Valkenburgh, Massachusetts General Laws Chapter 258, § 10: Slouching Toward Sovereign Immunity, 29 NEW ENG. L. REV. 1079, 1081 (1995).

U.S. CONST. amend. XI. See Centner, supra note 30, at 426; State Sovereign Immunity and Tort Liability, NAT’L CONF. OF STATE LEGIS., http://www.ncsl.org/issues-research/transport/state-sovereign-immunityand-tort-liability.aspx (last updated Sept. 8, 2010).
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18 MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 53.02.10 (3d ed. rev. vol. 1993). See, e.g., Gerald T. Wetherington & Donald I. Pollock, Tort Suits Against Governmental Entities in Florida, 44 FLA. L. REV. 1, 15 (1992).
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See id. at 87. See 18 MCQUILLAN, supra note 34, § 52.02.10. 38 See Coleman v. Kootsillas, 575 N.W.2d 527, 529 (Mich. 1998) (discussing the broad grant of immunity under Michigan law). There are statutory and common law exceptions, such as latent defects known to the municipality. See 19 MCQUILLAN, THE LAW OF MUNICIPAL CORPORATIONS § 54:13, at 88 (3d ed. 1999) (“Ordinary care must be exercised both as to patent defects and also as to latent defects.”). 39 Coleman, 575 N.W.2d at 531 (holding the government liable because it engaged in a proprietary activity by profiting from waste collection and disposal of both commercial accounts and to city residents). See, e.g., Tango v. City of New Haven, 377 A.2d 284, 285 (Conn. 1977) (“Where the municipality through its agent or employee acts in the performance of a governmental duty, it has a limited immunity from liability; but when the act complained of is ministerial, the municipality is responsible for its negligent execution.”) (citation omitted); Westbrook v. City of Jackson, 665 So. 2d 833, 836 (Miss. 1995) (“Sovereign immunity cloaks all governmental functions a city performs.”); Vaughn v. Cnty. of Durham, 240 S.E.2d 456, 458 (N.C. 1977) (“When the activity of a governmental entity is clearly governmental in nature,
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immunity from liability created by the municipality’s actions during performance of governmental functions.40 But immunity is not applicable for “actions to recover for bodily injury or property damage arising out of the performance of a proprietary function.”41 A proprietary function is defined as “any activity [that] is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees.”42 The test to distinguish between governmental and proprietary actions is not always clear, but generally depends on the nature of the activity— not the physical location of the activity.43 Government functions can also be explicitly authorized by constitutional amendment, statute, or law.44 Proprietary functions can exist within a larger government function, such as a profit-generating ride within a public park.45 And if the public portion of the activity is only incidental to the profit-generating portion, government liability can attach to the public areas also, such as a public park adjacent to a water treatment facility.46 Michigan courts construe activities to be proprietary, and thus subject to liability, when the activities are conducted primarily for the purpose of generating profit and are not normally supported by taxes and fees.47 The exception to immunity derives from keeping the municipalities on an even level with private corporations when they are involved in
and not proprietary, the rule of sovereign immunity will protect the government from suit.”); Virginia Elec. & Power Co. v. Hampton Redevelopment & Hous. Auth., 225 S.E.2d 364, 368 (Va. 1976) (“A municipality acts in a dual capacity, the one governmental and the other proprietary. In failing to perform or in negligently performing governmental functions, the municipality is immune from tort liability. With respect to proprietary functions, however, it is not so immune.”). 40 MICH. COMP. LAWS ANN. § 691.1407 (West 2012). 41 Id. at § 691.1413. 42 Id. 43 Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454, 457 (S.D. 1980); Parker v. City of Highland Park, 273 N.W.2d 413, 416-17 (Mich. 1978). See Ross v. Consumers Power Co., 363 N.W.2d 641, 671 (Mich. 1984). Matthews v. City of Detroit, 289 N.W. 115, 118 (Mich. 1939) (holding that operation of a for-profit miniature railroad is a proprietary function although the railroad that caused the injury was only a small portion of the public park operation, which was governmental function).
45 46 Carlisi v. City of Marysville, 128 N.W.2d 477, 483 (Mich. 1964) (holding that the City was subject to liability for an injury occurring in a property used as a city park because the primary function of the property, a water filtration complex, was for profit; the city park use was incidental). 47 Ward v. Mich. State Univ. (On Remand), 782 N.W.2d 514, 520 (Mich. Ct. App. 2010) (citing Coleman v. Kootsillas, 575 N.W.2d 527, 530 (Mich. 1998)). 44

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nongovernmental functions.48 The importance of the proprietary exception from immunity is demonstrated in Texas and New York.49 The New York Court of Appeals held that the state does not have immunity when it acts as a landlord, finding the state liable for damages to a college student assaulted in a college dormitory.50 However, Texas does not have proprietary the function exception to immunity, therefore it came to the opposite conclusion on similar facts.51 In Virginia, where the proprietary function exception is recognized, the operation and maintenance of low-income housing is a proprietary function; therefore, the state found the housing authority (as a municipal corporation) subject to liability for negligent maintenance.52 B. Municipalities Performing Government Functions Can Be Subject to Liability Due to Possible Exceptions to Immunity Other common law and statutory exceptions from governmental immunity may be available to potential claimants.53 Some states provide broad immunity from liability and carve out certain exceptions to that immunity.54 Other states consider all municipal activities subject to liability and then provide specific exceptions when immunity applies.55 Michigan provides broad immunity and allows liability for only recognized statutory exceptions.56 Recognized statutory exceptions are: public building defects;57 performance of a proprietary function;58 ownership and operation of a

Lisiecki v. Detroit-Wayne Joint Bldg. Auth., 111 N.W.2d 803, 805 (Mich. 1961). See infra notes 50-51 and accompanying text. 50 Miller v. State, 467 N.E.2d 493, 494 (N.Y. 1984) (“When the State operates housing, it is held to the same duty as private landlords in the maintenance of physical security devices in the building itself. Thus, a student who is injured in a criminal assault in a State-operated college dormitory may recover damages against the State in its capacity as a landlord . . . .”) (citation omitted).
49 51 Delaney v. Univ. of Houston, 792 S.W.2d 733, 738 (Tex. Ct. App. 1990), rev'd on other grounds, 835 S.W.2d 56 (Tex. 1992) (dismissing a student’s claim against the state for damages from her rape in a college dormitory, because Texas does not apply the proprietary function exception). 52 Virginia Elec. & Power Co. v. Hampton Redev. & Hous. Auth., 225 S.E.2d 364, 369 (Va. 1976). 53 54 55 56 57 58

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18 MCQUILLIN, supra note 34, § 52.02.05. Id. § 52.03. Id. Pohutski v. City of Allen Park, 641 N.W.2d 219, 226 (Mich. 2002). MICH. COMP. LAWS ANN. § 691.1406 (West 2012). Id. § 691.1413.

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government hospital;59 negligent operation of government vehicles;60 failure to maintain highways;61 and sewage-disposal-system events.62 1. The Public Building Exception Creates Liability Risk for Government-Owned Buildings Open to Public Use.

The public building exception allows plaintiffs to hold municipalities liable for damages that occur in and around government owned buildings.63 Under this exception, municipalities are subject to liability for injuries caused by a building defect or condition that: (1) occurs in a building under the government’s ownership and control; (2) occurs in a building that is open for use by the public; (3) is known or which should be known by the municipality; and (4) is not being corrected by the municipality.64 The public’s accessibility to the building, not the use of the building, determines whether the building is open for public use.65 The building does not need to be open to the general public; the public building exception applies even if limited public access is permitted.66 Municipalities can be charged with knowledge of the defect if a reasonable inspection would have discovered the defect.67 Liability can occur due to “dangerous conditions” in a government building or on the surrounding property.68 The public building exception protects the public from the government’s negligent maintenance of its property.69 However, the tests are often strict: temporary conditions, such as water on the ground, do not constitute a condition causing liability.70
Id. § 691.1407(4). Id. § 691.1405. 61 Id. § 691.1402. 62 Id. § 691.1417(3); Pohutski v. City of Allen Park, 641 N.W.2d 219, 229 (Mich. 2002). 63 MICH. COMP. LAWS ANN. § 691.1406 (West 2012). 64 Id. 65 Brown v. Genesee Cnty., 564 N.W.2d 125, 127 (Mich. Ct. App. 1997) (“[T]he focus . . . [of the inquiry] is on the ‘accessibility to members of the general public, rather than on the extent to which the building might benefit the community.’”) (alteration to original) (citation omitted) (quoting Steele v. Dep't of Corrs., 546 N.W.2d 725, 728 (Mich. Ct. App. 1996)).
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Kerbersky v. N. Mich. Univ., 582 N.W.2d 828, 832 (Mich. 1998). See Ali v. City of Detroit, 554 N.W.2d 384, 387 (Mich. Ct. App. 1996) (finding constructive notice where regular maintenance and inspection of a bus shelter would have found the defect).
67 68 Velmer v. Baraga Area Schs., 424 N.W.2d 770, 774 (Mich. 1988) (noting that the injury must be caused by building itself). 69 70

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Archibeque v. Moya, 866 P.2d 344, 347 (N.M. 1993). Shedrick v. William Penn Sch. Dist., 654 A.2d 163, 165 (Pa. Commw. Ct. 1995) (finding

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Inverse Condemnation Creates Liability Risk for Government Actions that Reduce the Value of Private Property.71

Courts have also found municipalities liable when the municipalities interfere with private property under the Takings Clause of the Michigan Constitution.72 An inverse condemnation claim under the Takings Clause occurs when a government does not actually take private property, but damages the property through public improvements or activities.73 A plaintiff can claim inverse condemnation and obtain damages for diminished private property value when a government delays condemnation proceeding in an attempt to lower property values that it would otherwise owe property owners for the condemnation.74 To prove inverse condemnation, a claimant must show (1) that government actions were a substantial cause of the decline of claimant’s property value, and that (2) “the government abused its legitimate powers in affirmative action directly aimed at the plaintiff’s property.”75 The plaintiff must show an “overt action” by the municipality against the plaintiff’s property.76 Additionally, the plaintiff cannot simply suffer an injury common to others similarly situated, such as damages caused by road salt that are comparable to damages to all properties along a highway.77

the municipality not liable for injuries because water on floor is not a defect of floor itself).
71 Inverse condemnation occurs when a governmental entity takes private property without bringing formal condemnation proceedings. BLACK’S LAW DICTIONARY 332 (9th ed. 2009). 72 Pohutski v. City of Allen Park, 641 N.W.2d 219, 239 (Mich. 2002) (Kelly, J., dissenting). 73 Merkur Steel Supply, Inc. v. City of Detroit, 680 N.W.2d 485, 494 (Mich. Ct. App. 2004). 74 See Heinrich v. City of Detroit, 282 N.W.2d 448, 451-52 (Mich. Ct. App. 1979). 75 Id. (citing Holloway Citizens Comm. v. Cnty. of Genesee, 196 N.W.2d 484, 485 (Mich. Ct. App. 1972)).

Compare Hinojosa v. Dep’t of Natural Res., 688 N.W.2d 550, 557 (Mich. Ct. App. 2004) (barring a claim against a state agency for property damage based on trespass-nuisance tort for fire spread from a nearby abandoned house owned by the state through tax delinquency proceedings), with Allen v. City of Laingsburg, No. 286031, 2010 WL 539823, at *4 (Mich. Ct. App. 2010) (distinguishing Hinojosa because the plaintiff in Allen alleged that the defendant municipality had done an overt act to cause the problem by modifying the elevation of the municipality owned property and the plaintiff in Hinojosa had only alleged that “at most, the state failed to abate a fire hazard nuisance”).
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Blue Harvest, Inc. v. Dept. of Transp., 792 N.W.2d 798, 808 (Mich. Ct. App. 2010).

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Real Estate Acquisition by Government Entities Creates Liability Risk When Procedures Are Negligent.

Improper acquisitions can create legal challenges and reversion of property ownership to the private party.78 Municipalities primarily acquire private property through tax foreclosures.79 If the foreclosing entity files improper notice that does not meet constitutional requirements, the resulting tax foreclosure judgment violates the party’s due process rights.80 The injured property owner is entitled to rescission of the foreclosure and is vested with ownership of the property again.81 Additionally, if the government performs any actions on the property after acquisition, such as demolition, the government can be liable under inverse condemnation as a taking of the property.82 4. The Trespass-Nuisance Exception Creates Liability Risk for Government Created or Controlled Nuisances in Jurisdictions Where Recognized.

Additionally, some jurisdictions allow plaintiffs to obtain damages against the government for government created or controlled nuisances that damage the plaintiff’s property.83 Under this exception, nuisances created at municipally-owned vacant properties may create liability for the municipality for damage caused to adjacent properties.84 Moreover, there was a period in Michigan jurisprudence when the nuisance did not need to originate from municipally owned property if the municipality caused the trespass.85 However, in 2002, the Michigan Supreme Court held that the

78 Sidun v. Wayne Cnty., 751 N.W.2d 453, 462-63 (Mich. 2008); Ligon v. City of Detroit, 739 N.W.2d 900, 907-08 (Mich. Ct. App. 2007). 79 U.S. DEP’T OF HOUS. & URBAN DEV., REVITALIZING FORECLOSED PROPERTIES WITH LAND BANKS 2 (2009), available at http://huduser.org/portal/publications/landbanks.pdf.

Sidun, 751 N.W.2d at 462. Id. at 462-63. 82 Ligon, 739 N.W.2d at 907-08. 83 E.g., Picco v. Town of Voluntown, 989 A.2d 593, 599 (Conn. 2010) (recognizing nuisance claims against government entities based on a state statute); Gooden v. City of Atlanta, 531 S.E.2d 364, 366 (Ga. Ct. App. 2000) (observing that county and municipal governmental tort immunity does not apply in a nuisance action); Bd. of Educ. of Prince George’s Cnty. v. Mayor & Common Council of Riverdale, 578 A.2d 207, 209 (Md. 1990) (observing that municipal governmental tort immunity does not apply in a nuisance action). 84 Gerzeski v. State, 268 N.W.2d 525, 533 (Mich. 1978) (“The . . . exception to judicial immunity consists of those situations wherein damage is caused by the direct trespass of an instrumentality from government-owned land onto private property.”).
81 85

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Hadfield v. Oakland Cnty. Drain Comm’r, 422 N.W.2d 205, 208 (Mich. 1988) (“Trespass-

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Governmental Tort Liability Act (“GTLA”) abrogated the trespass-nuisance exception to liability against municipalities and the Michigan Court of Appeals rejected the trespass-nuisance exception against the state.86 After GTLA, these Michigan decisions overruled years of precedent permitting the trespass-nuisance exception to survive, but it is possible that there could be a future challenge.87 If the dissent’s view in Pohutski gains momentum, the trespass-nuisance exception to government liability could again become relevant to municipalities.88

ANALYSIS
III. Government Expansion of Property Ownership Will Create Various Liability Concerns Far Into the Future. Although Michigan laws provide broad immunity for municipalities, some activities planned and performed by the City of Detroit can still create liability.89 Redevelopment of government-owned parcels may be considered a proprietary function; subjecting the City to liability because it would be acting more like a private entity than a government.90 Additionally, as the City expands its real estate ownership, it exposes itself to potential liability for injuries that occur on those properties.91 Also, “right-sizing” the City’s population into areas deemed viable may create inverse condemnation claims if properties situated in the areas deemed non-viable suffer value reduction due to such designation.92 If the City’s acquisition notice to property owners is inadequate, the City may be required to give the property back or be subject to liability for inverse

nuisance shall be defined as a direct trespass upon, or the interference with the use or enjoyment of, land that results from a physical intrusion caused by, or under the control of, a governmental entity.”), overruled by Pohtski v. City of Allen Park, 641 N.W.2d 219, 229 (Mich. 2002). 86 See MICH. COMP. LAWS ANN. § 691.1407(1) (West 2012); see also Pohutski, 641 N.W.2d at 229 (holding that the trespass-nuisance doctrine could still be used for liability against the state, but not against a municipality because municipal liability could only be found in statutory exceptions, not common-law exceptions); Blue Harvest, Inc. v. Dept. of Transp., 792 N.W.2d 798, 808 (Mich. Ct. App. 2010) (holding that the trespass-nuisance doctrine could not be used for liability against the state).
87 88 89 90 91 92

See Lessard v. City of Allen Park, 372 F. Supp. 2d 1007, 1010-11 (E.D. Mich. 2005). Pohutski, 641 N.W.2d at 235 (Kelly, J., dissenting). See infra Part III.A. See infra Part III.A. MICH. COMP. LAWS ANN. § 691.1413 (West 2012); see infra Part III.B.1. See infra Part III.B.2.

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condemnation.93 Furthermore, new justices on the Michigan Supreme Court may allow additional liability against the City in the future.94 A. Property Redevelopment Can Be a Proprietary Function Creating Municipal Liability Without Safeguards on Profits and Tax Use. Municipalities enacted various actions to both streamline private property acquisition and enhance government oversight of vacant and abandoned properties.95 These activities could subject the municipalities to liability because proprietary government actions are not granted immunity.96 Michigan classifies a municipality’s action as a proprietary function if the action is: (1) conducted primarily for the purpose of producing pecuniary profit; and (2) not normally supported by taxes and fees.97 Courts have also found activities to be proprietary where the profitgenerating activity is only a part of a larger governmental function.98 Property ownership can be a governmental or proprietary function depending on the use of the property.99 To help prevent real estate activities from being considered proprietary functions, municipalities should make sure any profits earned through real estate activities are only used to fund other real estate activities—not projects in different departments.100 Dextrom v. Wexford County demonstrates how municipalities can incur liability through governmental activities if the municipality profits from the activity and uses the profits for separate activities.101 In Dextrom, the Michigan Court of Appeals questioned whether a municipal landfill’s trash acceptance from a neighboring county constituted a proprietary operation.102 Residents sued the County for damages resulting from groundwater well contamination

See infra Part III.B.3. See infra Part III.B.4. 95 DETROIT NSP PLAN, supra note 22, at 33. 96 See infra Part III.A.1. 97 Ward v. Mich. State Univ. (On Remand), 782 N.W.2d 514, 520 (Mich. Ct. App. 2010). 98 See, e.g., Carlisi v. City of Marysville, 128 N.W.2d 477, 483 (Mich. 1964). 99 Cf. Rohrabaugh v. Huron-Clinton Metro. Auth. Corp., 256 N.W.2d 240, 241, 243 (Mich. Ct. App. 1977) (holding that a municipality’s operation of a roller rink on a public park is a proprietary function because the uses were not related and the roller rink drew people regardless of the fact that it was in a park—even though operation of a park is traditionally a government function).
94 100 101 102

93

Dextrom v. Wexford Cnty., 789 N.W.2d 211, 215, 222-23 (Mich. Ct. App. 2010). See id. at 216. Id. at 216, 222.

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traced back to the landfill.103 When the County moved for summary judgment based on governmental immunity, the residents argued that operation of the landfill was a proprietary function because the County profited from accepting out-of-county waste.104 Although acknowledging landfill operation as a traditional government function, the court agreed that there was a question of whether the landfill was a proprietary function based on the municipality’s accepting out-of-county waste in its landfill and transferring profit from the landfill to other municipal uses.105 The court remanded the case back to the trial court for a determination of “whether [the] defendants’ operation of the landfill was subject to the proprietary function exception to government immunity.”106 Coleman v. Kootsillas demonstrates how municipalities can be subject to liability for projects larger in scope and more costly than their income from taxes or fees.107 Additionally, the case demonstrates how using profits from one activity to support another can subject a municipality to liability.108 In Coleman, the Michigan Supreme Court held that the proprietary function exception applied to a “vast and lucrative” landfill beyond what that municipality’s community could support “either through taxes or fees.”109 In addressing the first element of the proprietary function test—whether the primary purpose of the activity is to produce a profit—the court reviewed “whether a profit [was] actually generated” and how the profit was spent.110 Because the City used a “substantial profit” generated from the landfill in other City activities, the court held that the landfill’s purpose was to generate profit.111 The court held that the landfill satisfied the second element of the proprietary function test—the activity is not normally supported by taxes—because the operation was much bigger than what the municipality could operate relying only on taxes and fees.112 In an unpublished case, Jenkins v. City of Detroit, the Michigan Court of Appeals held that the purchase and sale of real estate by the City of Detroit was not a proprietary function, overturning the trial court’s finding that

Id. at 215. Id. at 216. Out-of-county waste has never been more than 13.2% of total waste. Id. at 215. 105 Id. at 215, 222-23. 106 Dextrom, 789 N.W.2d at 226. 107 Coleman v. Kootsillas, 575 N.W.2d 527, 530-31 (Mich. 1998). 108 See id. (finding that because the City was using the fees to fund other projects, they opened themselves up to liability).
104 109 110 111 112

103

Id. at 529-31. Id. at 528-30. Id. at 530, 531 n.11. Id. at 529-30.

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such action was a proprietary function.113 Specifically, although the City appeared to earn revenue from property sales, the court found that the primary purpose of a program, which allowed parties to buy back previously owned property, was not for profit.114 The court noted that it was not clear if the City really made a profit after paying property taxes and there was no proof whether the purchase price deposited in the general fund was used for unrelated activities.115 Moreover, the court held that the proprietary function exception did not apply because “urban development and stabilization of neighborhoods are the sorts of activities normally funded through taxes.”116 Jenkins is instructive for Detroit, and similarly situated municipalities, to help avoid liability based on the City’s expanded real estate development program.117 First, municipalities should use any profits made from property sales only for real estate and neighborhood development purposes to help protect their activities from the profit-purpose prong of the test.118 Second, and more importantly, municipalities may run into issues meeting the “normally funded through taxes” test because a significant part of funding for Detroit’s development activities are coming from the Neighborhood Stabilization Program (“NSP”), which are not tax dollars produced by the municipality.119 Although the use of NSP funds provides for more projects than current tax income allows, Detroit should use the NSP funds as it would normally use tax income to help keep its real estate activities under the government function umbrella.120 1. The Neighborhood Stabilization Program Could Support an Argument of Proprietary Function Because Detroit Does Not Need to Rely Solely On its Tax Base for Funding.

In 2008, Congress created the NSP “to help cities, counties and states deal with community problems that are the result of the mortgage foreclosure crisis in the nation.”121 Detroit received approximately forty-

113 Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *2-4 (Mich. Ct. App. Nov. 6, 2001).

See id. at *3. Id. 116 Id. at *4. 117 Id. at *3-4 (explaining how the organization of Detroit’s real estate program did not fit the proprietary exception to governmental inventory).
115 118 119

114

See id. at *3. Jenkins, 2001 WL 1388386, at *4; DETROIT NSP PLAN, supra note 22, at 3. 120 Cf. Coleman v. Kootsillas, 575 N.W.2d 527, 530-31 & n.11 (Mich. 1998). 121 About NSP and the NSP Resource Exchange, NEIGHBORHOOD STABILIZATION PLAN RES.

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seven million dollars under the NSP.122 Of those funds, the City allocated almost fourteen million to rehabilitation, and the remainder to acquisition, administration, demolition, disposition, new construction, and public improvements.123 The City created The Detroit Land Bank Authority, a land bank to perform the acquisition, disposition, and management of the properties.124 The Detroit Land Bank Authority was created in 2008 pursuant to Land Bank Fast Track Legislation in Michigan, which allowed cities to create a land bank and permitted expedited quiet title proceedings for properties owned by the land bank.125 Additionally, the City granted the land bank authority to sell the properties for reuse in the community after a quiet title action, which provides clear title and eliminates concerns of past claims against the new purchaser.126 Creating a land bank helps municipalities ensure that any profits earned through real estate activities are used for other real estate activities.127 Municipalities should require income from property sales to run through a land bank and only be used for community development to limit the risk of courts finding a for-profit function.128 In Detroit, the agreement creating the land bank requires all proceeds earned from property sales to be used for land bank activities.129 The land bank should perform cost-benefit analysis between protecting against liability and earning a profit.130 If the land bank resells a house at a higher price than the cost to acquire and update the property, it may be subject to liability for actions involved in the redevelopment and sale.131

EXCHANGE, http://hudnsphelp.info/index.cfm?do=viewAbout (last visited Apr. 18, 2013). DETROIT NSP PLAN, supra note 22, at 32. Id. 124 Id. at 33. 125 Id. at 9. 126 See What Is the Neighborhood Stabilization Program, DETROIT NSP: NEIGHBORHOOD STABILIZATION PROGRAM DETROIT LAND BANK AUTHORITY, http://detroitlandbank.org (last visited Apr.18, 2013) [hereinafter What is the NSP?] (accessed through “Detroit NSP” hyperlink) (advertising fully renovated DLBA NSP homes).
123 127 See Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *3 (Mich. Ct. App. Nov. 6, 2001); U.S. DEP’T OF HOUS. & URBAN DEV., supra note 79, at 3-4. 122

See DETROIT NSP PLAN, supra note 22, at 9 (noting that a land bank will be created and funds will be used for purposes of property management—not as profit for the municipality). 129 See MICH. LAND BANK FAST TRACK AUTH., BIENNIAL REPORT: FISCAL YEARS 2009 AND 2010 5 (n.d), available at http://michigan.gov/documents/treasury/Biennial_Report_2009_2010_2_367846_7.pdf.
130 See Coleman v. Kootsillas, 575 N.W.2d 527, 529 (Mich. 1998) (explaining that when a state municipality earns a profit it can be liable for tortious conduct). 131

128

See id. at 529-30.

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However, if the land bank has the potential to profit from these activities, the risk may be worth the reward.132 At a minimum, the land bank should make sure these profits are used for other real estate redevelopment activities performed by the land bank.133 As in Jenkins, using profits for selfsufficiency of that particular activity is the safest way to protect from liability.134 Because NSP funds can be included with taxpayer dollars for land bank activities, municipalities should recognize that part of the “primary profit” prong of the proprietary function test considers whether activities are generally paid with taxes—specifically whether activities are typically paid with taxes, not actually paid with taxes.135 Although the court in Jenkins stated, “urban development and stabilization of neighborhoods are the sorts of activities normally funded through taxes,” there are portions of the current neighborhood stabilization that are not normally funded through taxes.136 For example, the municipality should be especially careful when marketing and selling properties, acting as a landlord, or performing demolition.137 These exclusions are especially important because Michigan courts noted that a proprietary function could be recognized within a greater governmental function.138 Therefore, the municipality could be held liable for those nontraditional governmental functions—even if the municipality has immunity for other portions of the development activities.139 Additionally, Detroit is offering land-bank properties to nonresidents of the City.140 Selling property to nonresidents is probably not supported

132 See Review Team to Examine Detroit Finances, supra note 2 (discussing the City of Detroit’s lack of funding and budget deficit).

Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *3 (Mich. App. Ct. Nov. 6, 2001). See id. Coleman, 575 N.W.2d at 530-31 & n.10. 136 Compare Jenkins, 2001 WL 1388386, at *4 (holding that the municipality’s purchase and sale of real estate constituted governmental activities), with Virginia Elec. & Power Co. v. Hampton Redevelopment & Hous. Auth., 225 S.E.2d 364, 369 (Va. 1976) (concluding that the municipality’s actions in operating a housing facility were essentially the same as a private landlord). 137 18A MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 53:116 (3d ed. rev. vol. 2012). 138 Carlisi v. City of Marysville, 128 N.W.2d 477, 483 (Mich. 1964) (finding that because the City was acting as a private possessor of the land in question, the City assumed the duties normally imposed by law).
135 139 140 134

133

See id. See generally What is the NSP?, supra note 126.

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by taxes because those buyers have not previously paid city taxes.141 Arguably, this type of sales activity qualifies as a proprietary function.142 In Coleman, the court allowed liability against the waste treatment facility because it accepted waste—and income—from out-of-town parties.143 Similarly, the land bank is accepting income from out-of-town buyers.144 Because the injured party in Coleman was a resident of the municipality, it follows that any buyer of land-bank properties could argue that the land bank and city are liable for damages caused by negligent property sales; thus, municipalities should maintain control over their property sales to reduce negligence.145 2. Municipal Activities Could Create Additional Liability in a Less Protective Legal Atmosphere.

The proprietary function test wavered over the years in Michigan courts; it is possible that judges in future cases could restructure the test and look to other jurisdictions in deciding such a question.146 The current Michigan decisions are protective of municipalities and focus on whether an activity’s purpose is for profit and generally supported by taxes.147 In North Carolina however, the courts adopted a totality of the circumstances test.148 That test is: (1) whether the local government provides this function; (2) whether the function is exclusively provided by the local government; (3) whether the local government charges a substantial fee; and (4) whether the fee generates a profit.149 “Not all of these factors must be present for a function to be proprietary, but the second of these considerations is the

Cf. id. See generally Coleman v. Kootsillas, 575 N.W.2d 527, 530-31 (Mich. 1998) (noting that the landfill was ultimately deemed a proprietary function because it generated funds by charging out-of-town users).
142

141

See id. See id.; What is the NSP?, supra note 126 (noting that under the requirements for participation, it is not necessary to be a Detroit resident to purchase a home).
144

143

See Coleman, 575 N.W.2d at 529-31. Compare Matthews v. City of Detroit, 289 N.W. 115, 117 (Mich. 1939) (finding an exception to immunity when an activity that is “commercial in character” is voluntarily undertaken for profit), with Ward v. Mich. State Univ. (On Remand), 782 N.W.2d 514, 520 (Mich. Ct. App. 2010) (requiring the activity’s purpose be for profit and operate independently of taxes). 147 See Ward, 782 N.W.2d at 520. 148 See Vaughn v. Durham Cnty., 240 S.E.2d 456, 459 (N.C. Ct. App. 1977) (finding that providing foster care was a governmental function under a totality of the circumstances test).
146 149 Estate of Williams v. Pasquotank Cnty. Parks & Recreation Dep’t, 711 S.E.2d 450, 453 (N.C. Ct. App. 2011), rev’d, 718 S.E.2d 381 (N.C. 2011).

145

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most important.”150 To firmly qualify as a government function, the land bank should not charge a fee for its services.151 Because any corporation or individual could act as a property buyer and seller, the court may find that any service charge is a proprietary function.152 Although the land bank has more governmental powers to acquire properties than an individual does, the function of buying and selling real estate is not unique to a municipality.153 Additionally, although legislation enabling the land bank promotes a public purpose, the enabling legislation is not controlling in the proprietary function analysis.154 In Virginia Electric and Power Co. v. Hampton Redevelopment and Housing Authority, the Supreme Court of Virginia looked beyond the enabling legislation to the true nature of the activity; it found that a municipal housing authority was not entitled to immunity from negligent operation and maintenance of a housing project because the authority was performing a proprietary function.155 Although the enabling statute declared that “providing safe and sanitary dwelling accommodations for persons of low income are public uses . . . and . . . governmental functions of grave concern to the Commonwealth,” the Court construed the language as only providing justification for the use of public funds—and not immunity from tort liability.156 The court then reviewed the “true nature of the functions,” and found that the authority acted as a private landlord.157 The housing authority’s operation and maintenance qualified as a proprietary function because it operated as a quasi-private enterprise and did not provide a public benefit.158 B. Detroit’s Property Ownership and Development Activity Can Create Liability Through Government-Immunity Exceptions. Municipal property ownership can also create liability for government

Id. See Dextrom v. Wexford Cnty., 789 N.W.2d 211, 226 (Mich. Ct. App. 2010). 152 See Va. Elec. & Power Co. v. Hampton Redevelopment & Hous. Auth., 225 S.E.2d 364, 368 (Va. 1976) (noting that governments can subject themselves to liability when performing actions typically taken by private parties).
151 153 See generally id. at 369 (holding the municipality’s actions in operating a housing facility were essentially the same as a private landlord). 154 155 156 157 158

150

Id. at 367-69; Dohm v. Twp. of Acme, 93 N.W.2d 323, 328 (Mich. 1958). Va. Elec. & Power Co., 225 S.E.2d at 367-69. Id. at 368 (citing VA. CODE ANN. § 36-2(1) (1942)). Id. at 368-69. Id. at 369.

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actions.159 Michigan recognizes the public building exception for buildings owned by municipalities and open to the public.160 Additionally, Michigan courts recognize inverse condemnation claims through the Takings Clause.161 Because Takings Clause claims are not torts, the Governmental Tort Liability Act does not shield inverse condemnation claims.162 There is also a risk that new justices to the Michigan Supreme Court could be less favorable to municipalities, allowing additional claims of liability in the future.163 1. Injuries at Municipally-Owned Properties Could Create Liability Through the Public Building Exception.

The public building exception to municipal immunity allows liability for damages that occur at government owned property.164 Under this exception, immunity is not applicable for injuries caused by a building defect or condition: (1) occurring in a building under the government’s ownership and control; (2) occurring in a building that is open for use by the public; (3) known or which should be known by the municipality; and (4) not being corrected by the municipality.165 The public building immunity exception is based on public accessibility, not the actual use of the building.166 The building does not need to be open to the general public; limited public access is sufficient for the public access test.167 Because the government’s sale and marketing of property to private parties could qualify as property open to the public, the government entity handling the sale should obtain liability waivers from invitees when showing property for sale to avoid liability within the public building exception.168

See infra Part III.B. MICH. COMP. LAWS ANN. § 691.1406 (West 2012). 161 Merkur Steel Supply, Inc. v. City of Detroit, 680 N.W.2d 485, 495 (Mich. Ct. App. 2004) (citing In re Acquisition of Land-Va. Park, 328 N.W.2d 602, 604-05 (Mich. Ct. App. 1982)).
160 162 MICH. COMP. LAWS ANN. § 691.1407(1) (West 2012); Pennoyer v. Saginaw, 8 Mich. 534, 534-35 (1860) (finding liability against the City of Saginaw for flooding on plaintiff’s property caused by drainage ditch run-off).

159

See infra Part III.B.4. MICH. COMP. LAWS ANN. § 691.1406 (West 2012). 165 Id. 166 Brown v. Genesee Cnty. Bd. of Comm’rs, 564 N.W.2d 125, 127 (Mich. Ct. App. 1997) (“[T]he focus of the . . . [c]ourt’s inquiry is on the ‘accessibility [of the accident site] to members of the general public, rather than on the extent to which the building might benefit the community.’”) (alternation in original) (citation omitted) quoting Steele v. Dep't of Corrs., 546 N.W.2d 725, 728 (Mich. Ct. App. 1996)).
164 167 168

163

Kerbersky v. N. Mich. Univ., 582 N.W.2d 828, 832 (Mich. 1998). See MICH. COMP. LAWS ANN. § 691.1413 (West 2012); infra Part III.B.1.

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Government Ownership and Control

Under the public building exception, defective structures owned by a municipality can subject it to liability for injuries caused by the structure.169 This could be especially applicable to buildings listed for sale.170 Once a municipality acquires a property, it falls under the municipality’s ownership and control.171 The land bank would be an extension of the municipality.172 b. Marketing Buildings for Sale Could be Considered Buildings Open to the Public.

A property’s accessibility determines whether the building meets the definition for “public use” under the public building exception.173 The land bank was created to buy and sell property.174 When an officer or agent for the land bank shows properties for sale, the admission of the public could meet this test.175 If an injury occurs while the building is open to at least a general group of the public, this portion of the test is met; therefore, the land bank should remediate defects before walking the public through a building with potential hazards and oversee their open houses and showings to avoid claims.176 Furthermore, vacant or dilapidated buildings not properly secured could be considered open for public use depending on the characteristics of the open area.177 If the public has any reason to visit a dilapidated building, such as a property showing or open house, and was injured due to its neglected condition, the public presence—even if only outside of the structure—could meet the test for public accessibility.178 The Michigan

See supra text accompanying notes 63-64. See Kerbersky, 582 N.W.2d at 831-32. 171 See DETROIT NSP PLAN, supra note 22, at 7-9. 172 See id. at 7, 9. 173 Brown v. Genesee Cnty. Bd. of Comm’rs., 564 N.W.2d 125, 127 (Mich. Ct. App. 1997). 174 DETROIT NSP PLAN, supra note 22, at 7, 9. 175 See Kerbersky, 582 N.W.2d at 832-33 (holding that the public building exception applied when government building access was limited only to members of a theater group). 176 Cf. Maskery v. Bd. of Regents of Univ. of Mich., 664 N.W.2d 165, 170 (Mich. 2003) (holding that a dormitory that only admitted persons who were qualified on the basis of “individualized, limiting criteria” was not open to the public for the purposes of the public building exception). 177 Cf. Kerbersky, 582 N.W.2d at 831-33 (agreeing that access to a government building through broken lattice was not within the public building exception because the remainder of the window was bricked closed).
170 178

169

See id.

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Court of Appeals held that public access could be found even when a building was closed to the public because the public was still allowed to be in the exterior area of the building during closed hours.179 If the land bank lists a building for sale or rent, a claimant could argue that he or she had a privilege to be on the property to view the building in more detail—even if that person was not allowed inside the building.180 The court in Kerbersky v. Northern Michigan University clarifies that a building may be “open for use by members of the public” even where a location within the building is restricted from public use.181 The court in Tellin v. Forsyth Township expands on Kerbersky and allows exterior areas to be “open to the public” even when the building is closed to all of the public.182 Accordingly, a claimant could argue that an injury on the property surrounding a government building listed for sale is “open to the public” even when no showings are currently taking place and even if the claimant is not there as an interested purchaser.183 It would be more difficult for a claimant to succeed in arguing that the inside of the boardedup building was open for public use, even if the building’s protection was insufficient.184 Nevertheless, the municipality should post “no trespassing” signs on owned vacant buildings to make clear that the properties are not open to the public and take steps to reduce hazards on the exterior of owned properties to reduce potential liability.185 c. Oversight of Vacant and Dilapidated Buildings Could Create an Inference of Government Knowledge of Defects.

A municipality could be charged several ways with knowledge of a defect or dangerous condition in government-owned property.186 If an agent for a land bank shows a property for sale, the agent should be aware of visible dangerous conditions at the property.187 The Michigan Court of

Tellin v. Forsyth Twp., 806 N.W.2d 359, 370 (Mich. Ct. App. 2011). See Maskery, 664 N.W.2d at 170. 181 Id. at 169 n.9 (citing Kerbersky, 582 N.W.2d at 832). 182 Tellin, 806 N.W.2d at 370. 183 Cf. id. (allowing a claimant’s case to proceed even though the claimant was not on the property for reasons that public access was permitted, i.e., the use of the building’s drop box).
180

179

See id. at 369 (discussing how buildings closed completely for renovations are closed to the public under the public building test). 185 See MICH. COMP. LAWS ANN. § 691.1413 (West 2012) (showing that a governmental agency shall not be liable for injury arising out of the operation of proprietary function of the government); see supra Part III.B.1.
186 187

184

See Ali v. City of Detroit, 554 N.W.2d 384, 387 (Mich. Ct. App. 1996). E.g., Bob Hunt, Agent Visual Inspection Form Will Probably Change

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Appeals held that knowledge of a defective condition satisfies actual or constructive notice.188 Constructive notice exists when a reasonable inspection would discover the defect.189 Accordingly, if conducting a visual inspection is reasonable under the circumstances, the municipality could be charged with constructive notice of a defect even if an inspection did not occur.190 Moreover, dangerous building laws and initiatives could support a claimant’s argument that the municipality knew of defects in governmentowned buildings because information about dangerous properties has been compiled for Detroit.191 Michigan enacted legislation making it unlawful to keep or maintain a dangerous building.192 Property reports and maps are available to pinpoint dangerous properties in Detroit.193 Although breaches of this requirement do not create municipal liability under current Michigan law, the claimant could use evidence of a breach to prove knowledge of the defect.194 Under the dangerous building provisions, a building that is not structurally sound due to neglect or abandonment, or does not meet minimum building codes, is a dangerous building.195 Because information is available and monitored by community groups, Detroit could be found to have constructive notice of defects or dangerous conditions in government-owned property.196 Additionally, the City could be found to have actual knowledge of a defect if an unsolicited tip regarding the condition is sent to the it.197 Moreover, even if the City did not inspect the property or get a tip about the condition, knowledge of the

Practices, REALTYTIMES.COM (May 15, 2007), http://realtytimes.com/rtpages/20070515agent visual.htm (noting that many real estate agents should perform visual inspections of a property, even if not required by law). 188 Ali, 554 N.W.2d at 387. 189 See id. (finding that constructive notice was applicable based on expert testimony that regular maintenance and inspection of the bus shelter would have led to the discovery of the defect). 190 See id. 191 About the Survey, DETROITRESIDENTIALPARCELSURVEY, http://www.detroitparce lsurvey.org/interior.php?nav=aboutsurvey (last visited Apr. 18, 2013). 192 MICH. COMP. LAWS ANN. § 125.538 (West 2012). 193 DATA DRIVEN DETROIT, DETROIT RESIDENTIAL PARCEL SURVEY CITYWIDE REPORT FOR VACANT, OPEN AND DANGEROUS AND FIRE (2010), available at http://www.detroitparcel survey.org/pdf/reports/DRPS_citywide_VOD_fire.pdf. 194 See Pohutski v. City of Allen Park, 641 N.W.2d 219, 226, 237 (Mich. 2002). 195 § 125.539(b). 196 Ali v. City of Detroit, 554 N.W.2d 384, 387 (Mich. Ct. App. 1996). 197 Tellin v. Forsyth Twp., 806 N.W.2d 359, 370 (Mich. Ct. App. 2011) (holding that a volunteer’s lay opinion that a support beam was loose was actual knowledge of the defect).

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condition can still be found.198 If a defect exists so that it is “readily apparent to an ordinary observant person for a period of 90 days or longer before the injury [takes] place,” knowledge of the dangerous condition is conclusively presumed.199 Detroit officials should monitor dangerous property reports and conduct drive-bys of owned properties so that the municipality can repair or remove any visible hazards to reduce liability claims.200 d. Failure to Remedy Defects Can Create Liability. Lastly, once the governmental entity owning the building knows of a defect, it can be liable for injury if it has not begun remedial maintenance at the time of the injury.201 Accordingly, Detroit’s ownership of property, directly or through its land bank, can create liability for injuries on that property caused by a defective condition if the city knew and did nothing to remedy the it.202 Because liability can be found regardless of whether the City is acting in a governmental or proprietary function, Detroit should take care to determine where defects exist and remedy them, or limit entry onto the property, to avoid private party injury and liability.203 2. Encouraging “Right-Sizing” of Certain Areas Could Create Inverse Condemnation Claims in the Derelict Areas of the City.

Municipalities are also subject to liability for injury to private property if the owner can prove an inverse condemnation case.204 Inverse condemnation is based on “a governmental entity that has taken the owner’s property without bringing formal condemnation proceedings.”205 Moreover, inverse condemnation can occur where a municipality causes damage to private property through a public improvement, public activity, or ownership of adjacent property.206 To prove inverse condemnation, a claimant must prove: (1) “that the government’s actions were a substantial

See § 691.1406. Id. 200 See, e.g., Vacant and Dangerous Buildings, CITY OF YPSILANTI, http://cityofypsilanti.com /Government/Departments/BuildingDepartment/VacantDangerousBuildings (last visited Mar. 28, 2013).
199 201 202 203 204 205 206

198

Tellin, 806 N.W.2d at 368. § 691.1406. See id.; Kerbersky v. N. Mich. Univ., 582 N.W.2d 828, 830 (Mich. 1998). Merkur Steel Supply, Inc. v. City of Detroit, 680 N.W.2d 485, 495 (Mich. Ct. App. 2004). BLACK’S LAW DICTIONARY 332 (9th ed. 2009). See Merkur Steel Supply Inc., 680 N.W.2d at 494.

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cause of the decline of his property’s value. . . . [and (2)] the government abused its legitimate powers in affirmative actions directly aimed at the plaintiff’s property.”207 Cities establishing a widespread urban renewal program like Detroit should not focus on a particular area of the city to the detriment of private property owners in that area.208 In Heinrich v. City of Detroit, the propertyowner plaintiff alleged inverse condemnation due to an urban redevelopment plan surrounding Wayne State University.209 The plaintiff’s commercial property was located within a district labeled for recreational use in the new plan.210 The city held meetings about the redevelopment in 1962 and corresponded with the owner and his commercial tenants, which led the parties to believe the city would acquire the building in the mid- to late 1960s.211 The tenant moved out in 1967 and the owner was unable to lease the building again.212 The redevelopment project in the plaintiff’s area was discontinued due to lack of funding, and the property was later acquired by the city through tax foreclosure in 1973.213 However, the plaintiff’s claim failed because he did not sufficiently prove causation between the City’s actions and his loss of rent and profits.214 The plaintiff failed to prove that the “government’s actions were a substantial cause of the decline of his property’s value;” he could niether prove that his tenant would have stayed, nor that another tenant would have leased the property, but for the urban development plan.215 The court cited Detroit’s 1967 riots as the main cause of the losses.216 Additionally, the City’s contacts with the property owner and his tenant were not “so egregious as to constitute an abuse of its eminent domain power.”217 However, the court indicated that a delay in condemnation to reduce property values is an abuse of power.218 Municipalities, like Detroit, that target specific areas for condemnation

207 Heinrich v. City of Detroit, 282 N.W.2d 448, 451-52 (Mich. Ct. App. 1979) (citing Holloway Citizens Comm. v. Cnty. of Genesee, 196 N.W.2d 484, 486 (Mich. Ct. App. 1972)). 208 209 210 211 212 213 214 215 216 217 218

See id. Id. at 449. Id. Id. at 449-50. Id. at 450. Heinrich, 282 N.W.2d at 450. Id. at 450. Id. at 451-52. Id. at 451. Id. at 452. See id.

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should avoid contributing to declining values in those areas if at all possible.219 For example, the Detroit NSP committee specified areas of the City for acquisition, demolition, or financing programs to encourage the public to purchase in that area.220 In the subsection of Brightmoor, the Detroit NSP committee did not find viable potential for growth, and therefore targeted Brightmoor for property acquisition and demolition.221 Like the plaintiff in Heinrich, a property owner in Brightmoor could bring an inverse condemnation claim against the City of Detroit and obtain damages if the owner could prove that Detroit’s emphasis on Brightmoor’s unlikely revitalization substantially caused the owner’s decline in property value.222 The court in Heinrich did not find the city’s condemnation of properties in the plaintiff’s area to be a substantial cause of the property value declining, but instead attributed the loss in property value to the mass riots affecting the area during that timeframe.223 The 1967 riots caused extensive damage to the city including the looting and burning of 2,509 buildings; in the aftermath of the riots, a journalist dubbed Detroit as America’s “first major Third World city.”224 Although there are no major riots or other substantial incidents presently, Detroit should still factor in the potential cost for inverse condemnation claims if it continues with its effort to effectively shut down less viable portions of the city—such as Brightmoor.225 Furthermore, modifications to government property that damage neighboring properties can constitute inverse condemnation.226 For example, Detroit targeted Brightmoor for “[b]road demolition to clear and assemble land for alternative uses such as industrial or green space.”227 It is possible that creating an industrial area close to a residential area could create potential liability and environmental concerns for the City.228 In Allen
219 220

See DETROIT NSP PLAN, supra note 22, at 7, 10. Id. at 63. 221 Id. at 7, 11. 222 See Heinrich, 282 N.W.2d at 449-50. 223 Id. at 452 (“Evidence also showed that plaintiff’s property was in or immediately adjacent to one of the most severely damaged business areas during the 1967 riots, and that in the aftermath of these civil disturbances, entire neighborhoods in the City of Detroit suffered generally from loss of established businesses and vacant property.”). 224 SUGRUE, supra note 19, at 259, 270. 225 Cf. Heinrich, 282 N.W.2d at 452. 226 Allen v. City of Laingsburg, No. 286031, 2010 WL 539823, at *4 (Mich. Ct. App. Feb. 16, 2010) (modifying the municipality-owned property’s evaluation, which caused damage to the neighboring property, provided cause for an inverse condemnation claim).
227 228

DETROIT NSP PLAN, supra note 22, at 63. See, e.g., Allen, 2010 WL 539823, at *4; Att’y Gen. v. Ankersen, 385 N.W.2d 658, 674-75

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v. City of Laingsburg, the court allowed a claim for inverse condemnation to proceed because the plaintiff alleged that the city “took deliberate and affirmative actions in modifying the elevations of its nearby land which directly impacted the flow of storm water run-off so as to cause a portion of plaintiff’s property to be permanently submerged in water and rendered useless to him.”229 A municipality avoids inverse condemnation claims when it abstains from direct actions that render private property useless— whether due to water run-off or environmental contamination—otherwise the injured party may be able to hold the municipality liable.230 3. Government Acquisition of Private Property Can Cause Liability Without Proper Controls and Oversight on Acquisition Procedures.

Although property acquisition methods do not generally subject municipalities to liability, improper acquisitions can create legal challenges and reversions in property ownership to the private party.231 The primary method of acquisition by municipalities has been tax foreclosures.232 In Michigan, a municipality may purchase property by forcing a tax auction foreclosure sale.233 However, if the foreclosing entity files an improper notice that does not meet constitutional requirements, a resulting tax foreclosure judgment violates the party’s due process rights.234 To meet constitutional requirements for notice, the government must only provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”235 In effect, the government only needs to send out notice through certified mail.236 If the notice is returned, the government need only send notice by first-class mail to the same address—it does not need to ensure the address is current and that it

(Mich. Ct. App. 1986) (explaining how a city may be liable for allowing an industrial area to be built near a residential area). Allen, 2010 WL 539823, at *4. See id. 231 See, e.g., Sidun v. Wayne Cnty. Treasurer, 751 N.W.2d 453, 462-63 (Mich. 2008); Ligon v. City of Detroit, 739 N.W.2d 900, 907-08 (Mich. Ct. App. 2007). 232 U.S. DEP’T OF HOUS. & URBAN DEV., supra note 79, at 2. 233 MICH. COMP. LAWS ANN. § 211.78m (West 2012). 234 Republic Bank v. Genesee Cnty., 690 N.W.2d 917, 920 (Mich. 2005); Ligon, 739 N.W.2d at 904.
230 235 Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)) (internal quotation marks omitted). 236 229

See id. at 234-35.

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reached the intended recipient.237 The United States Supreme Court established this minimum notice standard, which Michigan follows.238 For cases involving improper notice, the legislature tried to limit the remedy to damages, instead of rescinding the foreclosure judgment.239 However, the Michigan Supreme Court vacated a foreclosure judgment and restored a former owner’s property rights because the foreclosure process violated her right to due process, i.e., notice of the foreclosure sale did not meet constitutional requirements.240 Accordingly, a municipality should maintain controls for issuing notices of an impending foreclosure to meet constitutional guidelines.241 In the event of a notice requirements violation, the foreclosure could be rescinded after the municipality has spent money performing the foreclosure, and possibly even incurred costs for selling the property to a third party.242 Additionally, if the government performs any actions on the property after acquisition, such as demolition, the government can be liable under inverse condemnation because this action qualifies as a taking of the property.243 Moreover, the municipality should strictly adhere to the notice requirements in order to keep stability in their foreclosures.244 Such stability would keep potential buyers from lowering their offering prices based on uncertainty in the legitimacy of the sale.245 4. The Trespass-Nuisance Exception

Michigan and other states do not currently recognize the trespassnuisance exception to municipal immunity for tort claims, although Michigan did before 2002.246 Other states currently allow liability for
See id. at 244. Id.; see Sidun v. Wayne Cnty. Treasurer, 751 N.W.2d 453, 462 (Mich. 2008) (acknowledging that Michigan follows the minimum requirements in Jones to provide notice, plus requires the notifying entity to send notice to all addresses available from the property’s tax bills and recorded deeds).
238 239 240 237

Sidun, 751 N.W.2d at 462 n.7. Id. at 462-63; Wayne Cnty. Treasurer v. Perfecting Church, 732 N.W.2d 458, 463 (Mich.

2007). See Sidun, 751 N.W.2d at 462-63. See id. 243 Ligon v. City of Detroit, 739 N.W.2d 900, 907-08 (Mich. Ct. App. 2007). 244 See Sidun, 751 N.W.2d at 462-63. 245 See Sam DeBord, Foreclosures, Bank-Owned Homes, and Short Sales: Don’t Believe the Big Discounts, SEATTLE PI (Nov. 3, 2011, 7:04 AM), http://blog.seattlepi.com/seattlewaterfront
242 241

homes/2011/11/03/foreclosures-bank-owned-homes-and-short-sales-dont-believe-the-bigdiscounts/.
246

E.g., Morrissey v. New Eng. Deaconness Ass’n., 940 N.E.2d 391, 401 (Mass. 2010)

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actions that create or maintain a nuisance.247 Generally for the trespassnuisance exception to apply, the municipality will need actual or constructive notice of the nuisance.248 For example, Georgia requires that the claimant prove: (1) the occurrence of the defect is beyond “mere negligence”; (2) the defect was continuous, repetitious, or existed for some time; and (3) the city failed to remedy the defect within a reasonable time after knowing of it.249 In even more protective states, municipal liability is limited to situations where the municipality not only knew about the nuisance, but also took some overt act towards creating the nuisance.250 Michigan previously recognized the trespass-nuisance exception and, until 2002, did not consider the Governmental Tort Liability Act (“GLTA”) to limit trespass-nuisance liability.251 It is possible that future courts could once again interpret the GLTA to allow tort claims against municipalities based on common-law actions, as was the case between 1967 and 2002.252 If Michigan again recognizes the trespass-nuisance exception to immunity, municipalities could be held liable for governmental nuisances that trespass and cause damage to private property.253 The 2002 decision, Pohutski v. Allen Park, which abrogated the trespassnuisance exception and all other common-law exceptions to immunity against municipalities, has been questioned the by court.254 The author of the dissent in Pohutski, Justice Marilyn Kelly, wrote that the majority’s rationale for overruling the “well-reasoned precedent” of the court’s interpretations of the GTLA “is that it brings the statute’s construction

(interpreting a 1993 statute to bar nuisance liability against municipalities); see also Pohutski v. City of Allen Park, 641 N.W.2d 219, 227, 229 (Mich. 2002).
247 See, e.g., Prifty v. City of Waterbury, 54 A.2d 260, 261-62 (Conn. 1947); Paduch v. City of Johnson City, 896 S.W.2d 767, 772 (Tenn. 1995); Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826, 829 (Tex. Ct. App. 1993).

City of St. Petersburg v. Collom, 419 So. 2d 1082, 1086 (Fla. 1982) (finding liability where a municipality knew of a dangerous condition that was not readily apparent and did not warn the public); Cobbley v. City of Challis, 139 P.3d 732, 736 (Idaho 2006). 249 City of Vidalia v. Brown, 516 S.E.2d 851, 854 (Ga. Ct. App. 1999). 250 E.g., Gaines v. Vill. of Wyoming, 72 N.E.2d 369, 372-73 (Ohio 1947); Taylor v. City of Charlottesville, 397 S.E.2d 832, 836 (Va. 1990).
251 See MICH. COMP. LAWS ANN. §§ 691.1401-19 (West 2012); Pennoyer v. Saginaw, 8 Mich. 534, 534 (1860) (finding liability against the City of Saginaw for flooding on plaintiff’s property caused by drainage ditch run-off). 252 Pohutski v. City of Allen Park, 641 N.W.2d 219, 226-27 (Mich. 2002). 253 Pennoyer, 8 Mich. at 534. 254 Lessard v. City of Allen Park, 372 F. Supp. 2d 1007, 1010 n.4 (E.D. Mich. 2005) (arguing that abrogating common-law exceptions to immunity was improper because the Michigan Supreme Court misinterpreted legislative intent).

248

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closer to the Legislature’s intent. I find this patently inaccurate.”255 Justice Kelly also states that the trespass-nuisance doctrine is grounded in the Constitution’s Takings Clause and therefore cannot be abrogated by a legislature, even if the legislature’s intent was to abrogate the doctrine.256 Additionally, the Pohutski decision questions the stability of the court’s broad immunity interpretation.257 Justice Kelly ended her dissent as follows:
But what must be apparent to all, when the rhetoric is stripped of its gloss, is that this Court is again ignoring its own past rulings. And, if each successive Court, believing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable.258

Michigan Supreme Court justices only serve eight-year terms.259 As justices are replaced, the interpretations of government immunity can change.260 Since the Pohutski decision, only two justices of the majority remain on the bench.261 Accordingly, it is very possible that the court could revise the Pohutski holding and allow common-law exceptions to immunity to apply in future cases.262 Detroit should monitor trespass-nuisance cases entering the Michigan Supreme Court in order to maintain controls on potential liability for defects that Detroit should have otherwise known and remedied.263

CONCLUSION
There are many cities similarly situated as Detroit with large quantities of vacant buildings and parcels.264 Although Michigan law favors
Pohutski, 641 N.W.2d at 235 (Mich. 2002) (Kelly, J., dissenting). Justice Michael Cavanagh concurred with the dissent. Id. at 240. 256 Id. at 239. 257 Id. at 240. 258 Id. 259 The Michigan Supreme Court History Timeline: 1950-Present, MICHIGAN SUPREME COURT HISTORICAL SOCIETY, http://www.micourthistory.org/history-timeline/ (last visited Apr. 18, 2013). 260 See Pohutski, 641 N.W.2d at 240 (Kelly, J., dissenting). 261 Compare Michigan Supreme Court Justices, MICHIGAN COURTS, http://www.courts. michigan.gov/courts/michigansupremecourt/justices/pages/default.aspx (last visited Apr. 20, 2013), with Pohutski, 641 N.W.2d at 224, 234.
262 263 264 255

See Pohutski, 641 N.W.2d at 240 (Kelly, J., dissenting). See supra Part III.B.4. U.S. CONFERENCE OF MAYORS, COMBATING PROBLEMS OF VACANT AND ABANDONED

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municipal immunity, Detroit can still be liable for its actions.265 However, there are steps that Detroit and other municipalities can take to protect themselves from liability.266 Municipalities should create land banks, if not already in existence, which should only use profits from selling property for maintenance or renovation of other properties.267 The use of profits for the self-sufficiency of a governmental activity is the safest way to protect the activity from being considered a proprietary function.268 Land banks should obtain waivers from invitees when showing property for sale because opening those properties to the public could cause those properties to fall within the public-building exception.269 Moreover, the municipality should post “no trespassing” signs on owned vacant buildings; the clearer the municipality communicates that the properties are not open to the public, the less likely injuries thereon would fall within the public-building exception.270 In order to protect efforts to “right-size” the city into the most viable areas from an inverse condemnation claim, the city should set internal rules for eminent domain to calculate the market value as of the date that the “right-sizing” plan went into effect, and keep municipal comments about moving population out of any certain area to a minimum. These efforts should at least reduce a party’s chance of claiming that the municipality’s actions substantially caused a decline in property value, and that “the government abused its legitimate powers in affirmative actions directly aimed at the plaintiff’s property.”271 Additionally, Detroit should make sure that the foreclosing entity in a tax sale follows strict procedures for issuing notices to parties in foreclosure, such as: checking all recorded documents and tax bill addresses for property owner contact information; mailing a certified letter to each address found; and if the letter is returned, the notice should be

PROPERTIES: BEST PRACTICES IN 27 CITIES 1 (2006), available at http://www.usmayors.org /bestpractices/vacantproperties06.pdf. 265 See supra Part III. 266 See infra text accompanying notes 268-74. 267 Id. 268 See Jenkins v. City of Detroit, Nos. 215116, 215117, 215118, 2001 WL 1388386, at *2 (Mich. Ct. App. Nov. 6, 2001). 269 See supra Part III.B.1; see generally MICH. COMP. LAWS ANN. § 691.1413 (West 2012). 270 See supra notes 184-85 and accompanying text. 271 See Heinrich v. City of Detroit, 282 N.W.2d 448, 451-52 (Mich. Ct. App. 1979) (citing Holloway Citizens Comm. v. Cnty. of Genesee, 196 N.W.2d 484, 486 (Mich. Ct. App. 1972)); supra Part III.B.2.

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sent by mail and posted physically on the property.272 Following all of these steps should preclude a due process violation for lack of notice.273 Lastly, although the trespass-nuisance exception is not currently recognized in Michigan, governmental property owners should use care when renovating their property and perform periodic inspections to ensure that conditions at the property do not harm adjacent property owners.274Although there is no perfect solution, the City’s efforts to reduce liability risks are efforts well spent to protect reduced budgets from damage claims during the city’s attempts to stabilize the neighborhoods and the City.275

272 273 274 275

See Sidun v. Wayne Cnty., 751 N.W.2d 453, 460-62 (Mich. 2008); supra Part III.B.3. See supra Part III.B.3. See supra Part III.B.4. See supra text accompanying notes 264-73.