Muskegon Area Rental Ass'n v. City of Muskegon

                                                                        Michigan Supreme Court
                                                                        Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                                C hief Justice                     Justices
                                                                Maura D. Cor rigan	                Michael F. Cavanagh




Opinion
                                                                                                   Elizabeth A. Weaver
                                                                                                   Marilyn Kelly
                                                                                                   Clifford W. Taylor
                                                                                                   Robert P. Young, Jr.
                                                                                                   Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                  FILED DECEMBER 18, 2001





                MUSKEGON AREA RENTAL ASSOCIATION,

                ROGER NIELSON, and ARTHUR JASICK,


                        Plaintiffs-Appellees,


                v	                                                                               No.          118416


                CITY OF MUSKEGON,


                     Defendant-Appellant.

                __________________________________

                PER CURIAM 


                        A    Muskegon        city      ordinance                 provides   that     before        a


                residential dwelling may be rented, all past due property


                taxes on the property must be paid.                                The plaintiffs, who are


                owners of rental property within the city, brought this action


                challenging the validity of the ordinance on various grounds.


                The circuit court granted summary disposition for the city on


                all the plaintiffs’ claims, but the Court of Appeals reversed


                in    part,      finding       that     the     ordinance             violated     the         Equal


                Protection Clauses of US Const, Am XIV, and Const 1963, art 1,


                § 2. 

     We conclude that the ordinance does not violate equal


protection guarantees, reverse the judgment of the Court of


Appeals in part, and reinstate the judgment of the Muskegon


Circuit Court.


                                   I


     The city of Muskegon enacted a property maintenance code


that sets forth the maintenance standards for all existing


structures,    new   structures,        and   additions   to   existing


structures.1    The code also requires a property owner to



     1
       The purpose of the property maintenance code is stated

in Muskegon Ordinance § 4-61:


          (b) Purpose. The purpose of this code is to

     protect the public health, safety and welfare in

     buildings intended for human habitation and

     accessory structures as hereafter provided by:


          (1)   Establishing    minimum    standards   for

     exterior   property   areas,    exterior   structure,

     interior structure, basic facilities, light and

     ventilation,   occupancy    requirements    and  fire

     safety.     These standards are designed to be

     reasonably high but, at the same time, practical

     and attainable and should not be interpreted as a

     guarantee to the purchaser.


          (2) Fixing the responsibilities of owners,

     operators and occupants of every building or

     structure used or intended for commercial or

     residential use or occupancy, in whole or in part.


          (3) Provide for administration, enforcement

     and penalties.


          The provisions of this chapter shall apply to

     all existing structures.        Any new building

     construction or additions to existing structures in

     the city must comply with the requirements of the

     building code as amended.    The minimum standards

     required under this code are designed to prevent

                                               (continued...)


                                   2

obtain a certificate of compliance before the owner may rent


the property. 


     On May 27, 1997, the city amended the ordinance to impose


additional     conditions   for   obtaining   a   certificate   of


compliance.     Muskegon Ordinance § 4-83(b) was amended to


provide:


          The City shall issue a certificate of

     compliance for a rental dwelling when the city

     finds that the rental dwelling, its units and

     accessory structures and yards comply with the

     standards set forth in this code; however, no

     certificate of compliance shall be issued until all

     of the following fees and debts to the city have

     been paid in full:


             (1) all previously billed property taxes;


          (2) all current or past due special assessment

     installments;


             (3) water or sewer bills outstanding;


          (4) all charges against the property for

     mowing, cleanup, weed or debris removal and similar

     charges by the city;


          (5) any fees, fines, penalties or debts of any

     sort arising from the provisions or enforcement of

     the Property Maintenance Code. 


     The issue in this appeal is whether § 4-83(b)(1) violates


the principle of equal protection under the law.





    1
      (...continued)

    fire hazard, structural deterioration, inadequate

    light, air and heat and unsanitary and overcrowded

    conditions which constitute a menace to the safety,

    health and welfare of the occupants or to the

    surrounding area. 


                                  3

                              II


         Plaintiff Muskegon Area Rental Association is an


organization of about 145 members who own approximately 2,000


rental dwellings in the city of Muskegon.      The individual


plaintiffs are members of the association. Plaintiffs brought


this action after the city attempted to enforce § 4-83(b)(1).


Among other claims not before the Court, plaintiffs alleged


that the ordinance violated their equal protection rights. 


     The plaintiffs argued that their equal protection rights


were violated because other businesses who must register to do


business in Muskegon are not required to pay real estate taxes


before securing a certificate of registration under another


ordinance.2 After discovery, both sides moved for summary


disposition under MCR 2.116(C)(10). The circuit court granted


the city’s motion.   Regarding the equal protection claim, the


court said:


          The 1990 Census of Population and Housing

     shows that 45% of Muskegon’s 14,767 occupied

     housing units were rental units. . . . Undisputed

     sworn testimony demonstrates that a substantial

     majority of rental properties which are not current

     in their tax payments are deteriorated, and unsafe

     for human occupancy. . . . When they deteriorate,

     the City generally does not apply to receive these

     tax reverted properties. . . .     Tax delinquency

     carries over to lack of interest in providing safe

     rentals for the public. . . . Finally, the City’s

     tax collection percentage is lower than the

     majority of Michigan municipalities. This results

     in higher interest costs when the City borrows or

     issues bonds. . . . 



     2
       See Ordinance 1166, adopted August 11, 1998, amending

Chapter 5 of the Muskegon Code of Ordinances.


                               4

          At oral argument, the parties explored the

     link between the stated goals and the ordinance.

     Plaintiff’s counsel argued there was little or no

     connection   between  fiscal  responsibility   and

     providing suitable housing.   A landlord could be

     fiscally responsible and provide horrific housing.

     One could provide exemplary rental housing and owe

     delinquent taxes. The Court is, however, satisfied

     that the City has established the requisite

     connection. In any event, it is not for this Court

     to second guess local governing bodies absent a

     showing that the body was arbitrary or capricious.

     Kropf v City of Sterling Heights, 391 Mich [139,

     161]; 215 NW2d 179 (1974). [Circuit Court opinion

     issued January 19, 1999, pp 8-9.] 



                               III


     The    plaintiffs   appealed,    and   the   Court    of   Appeals


affirmed the circuit court decision on all grounds except the


equal protection claim.3    The majority noted that an ordinance


is presumed constitutional and that the burden is on the party


challenging the ordinance to show that it is not rationally


related to a legitimate governmental interest.            In finding a


violation of the Equal Protection Clauses of the Michigan and


U. S. Constitutions, the Court of Appeals majority reasoned as


follows:


          We utilize the test set forth in Alexander v

     Detroit, 392 Mich 30, 35-36; 219 NW2d 41 (1974), a

     case involving a constitutional attack on a city

     refuse collection ordinance.    This test contains

     two   prongs:    (1)   whether    the   ordinance’s

     classifications are based on natural distinguishing

     characteristics and whether the classifications

     bear a reasonable relationship to the object of the

     ordinance and (2) whether all persons of the same

     class are included and affected alike or whether

     immunities or privileges are extended to an



     3
         244 Mich App 45; 624 NW2d 496 (2000).


                                5

    arbitrary or unreasonable class while denied to

    others of a like kind.      Accord, Brittany Park

    Apartments [v Harrison Charter Twp, 432 Mich 798;

    443 NW2d 161 (1989)], supra, p 804.


         [T]he problem here is that the ordinance

    treats rental property owners differently from

    other businesses.     Other businesses (nonrental

    properties) are required to obtain a certificate of

    registration and one of the prerequisites for

    obtaining   such    a  certificate   is  that   all

    outstanding debts to defendant be paid, except real

    property or income taxes.        Muskegon Code of

    Ordinances, § 5-9.6. Thus, defendant has created a

    subset of businesses—the owners of rental dwelling

    properties—and treats them entirely differently

    than   it    treats   other,   nonrental   property

    businesses.


         We hold that defendant’s ordinance violates

    the guarantee of equal protection because it

    violates the second prong of the test set forth in

    Alexander.   The ordinance does not include and

    affect all persons of the same class (businesses)

    and extends immunities or privileges to an

    arbitrary class (businesses who are not owners of

    rental properties and who are immune from the

    requirement of paying real property or income taxes

    before obtaining a certificate of registration),

    while denying the exact immunities and privileges

    to others of a like kind (businesses who are owners

    of rental properties and are required to pay all

    previously billed property taxes before obtaining a

    certificate of compliance). Consequently, we find

    that defendant’s ordinance impermissibly treats

    certain components of the same class (businesses)

    differently.    [244 Mich App 55-57 (emphasis in

    original).]


     The   dissent   disagreed    with   the   majority’s   equal


protection analysis.


          The purpose of defendant treating rental

     property   businesses   differently   than   other

     businesses is apparent.   By requiring payment of

     taxes “up front,” before units can be rented,

     defendant seeks to reduce the fiscal, safety,

     health,   and   welfare   problems   that   result

     disproportionately from rental properties.



                                 6

     The majority states that defendant’s position

regarding    the    rational    basis    for   this

classification scheme “is not supported in any way

by record evidence.”    Ante at 57.    I first note

that the majority’s analysis in this regard ignores

the   presumption    of    constitutionality   that

defendant’s ordinance enjoys and the corresponding

heavy burden of proof that plaintiffs must bear to

show that the ordinance is unconstitutional.     In

effect, the majority places the burden of proof on

defendant, as if this is a “strict scrutiny” case.

The question here is not whether defendant has

proved the rational basis for the classification

scheme.   The question is whether plaintiffs have

come forward with evidence sufficient to show

defendant’s ordinance to be arbitrary and wholly

unrelated to a legitimate government purpose.


     I conclude they have not. There has been no

showing   that    rental    properties    are  not

disproportionately tax delinquent compared to

properties owned by other businesses. In fact, the

record includes admissions by members of the

Muskegon Area Rental Association that allowing

rental properties to become delinquent is a common

business practice.     Defendant has articulated

reasons why its failure to promptly receive taxes

when due causes fiscal problems, and plaintiffs

have offered no evidence to suggest that those

problems do not result from tax delinquencies.

Thus, if the purpose of the classification scheme

here was simply to encourage prompt payment of

taxes for fiscal reasons, by enacting a special

penalty against a class of property owners who

disproportionately   are    tax   delinquent,  the

classification would pass constitutional muster.


     However, defendant has articulated other

reasons for treating rental property owners

differently than other businesses.        In sum,

defendant’s position is that the deteriorating

conditions of residential properties are commonly

the result of or exacerbated by the failure to pay

taxes when due.      This seems a common sense

conclusion to anyone familiar with “urban blight.”

It is certainly at least “rational speculation” on

defendant’s part.   See Alexander v Merit Systems

Protections Bd, 165 F3d 474, 484 (CA 6, 1999)

(“legislative choice is not subject to courtroom

factfinding   and  may   be   based  on   rational

speculation unsupported by evidence or empirical


                        7

     data”).    Again, plaintiffs have not shown that

     there   is    no  relationship    between   housing

     deterioration and tax delinquency or otherwise

     proved that the classification scheme at issue here

     has no “rational basis” in this regard. [244 Mich

     App 61-62.]


     The city filed an application for leave to appeal to this


Court.4


                              IV


     We review de novo a trial court’s decision to grant or


deny summary disposition.   Hazle v Ford Motor Co, 464 Mich


456, 461; 628 W2d 515 (2001). After reviewing the evidence in


the light most favorable to the nonmoving party, the court


must grant summary disposition if there is no genuine issue of


material fact.   Hazle, supra at 461. 


                              V


     The tests applicable to challenges based on the Equal


Protection Clauses are well established and were recently


summarized in Crego v Coleman, 463 Mich 248, 259; 615 NW2d


218(2000):


          When a party raises a viable equal protection

     challenge, the court is required to apply one of

     three traditional levels of review, depending on

     the nature of the alleged classification. The

     highest level of review, or "strict scrutiny," is

     invoked where the law results in classifications

     based on "suspect" factors such as race, national

     origin, or ethnicity, none of which are implicated

     in this case. Plyler v Doe, 457 US 202, 216-217;

     102 S Ct 2382; 72 L Ed 2d 786 (1982). Absent the

     implication of these highly suspect categories, an

     equal   protection   challenge   requires   either



     4

       The plaintiffs did not cross-appeal on the issues

decided against them by the Court of Appeals.


                              8

     rational-basis   review    or    an   intermediate,

     "heightened scrutiny" review.


     In this case, the categorization does not involve suspect


classifications, to which “strict scrutiny” analysis applies,


nor does it involve classifications to which the courts apply


a heightened level of scrutiny, such as illegitimacy and


gender.   Id. at 260.   Thus, the ordinance is reviewed under


the rational-basis test.    As we explained in TIG Ins Co v


Treasury Dep’t, 464 Mich 548, 557-558; 629 NW2d 402 (2001):


          “Rational basis review does not test the

     wisdom,    need,   or    appropriateness   of   the

     legislation, or whether the classification is made

     with 'mathematical nicety,' or even whether it

     results in some inequity when put into practice."

     Crego v Coleman, 463 Mich 248, 260; 615 NW2d 218

     (2000).   Rather,   it   tests   only  whether  the

     legislation is reasonably related to a legitimate

     governmental purpose. The legislation will pass

     "constitutional muster if the legislative judgment

     is supported by any set of facts, either known or

     which could reasonably be assumed, even if such

     facts may be debatable." Id. at 259-260. To prevail

     under this standard, a party challenging a statute

     must overcome the presumption that the statute is

     constitutional. Thoman v Lansing, 315 Mich 566,

     576; 24 NW2d 213 (1946).         Thus, to have the

     legislation stricken, the challenger would have to

     show that the legislation is based "solely on

     reasons totally unrelated     to the pursuit of the

     State's goals," Clements v Fashing, 457 US 957,

     963; 102 S Ct 2836; 73 L Ed 2d 508 (1982), or, in

     other words, the challenger must "negative every

     conceivable   basis    which   might  support"  the

     legislation. Lehnhausen v Lake Shore Auto Parts Co,

     410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351

     (1973).


                              VI


     In this case, the city has advanced legitimate objectives


for its ordinance, including encouraging prompt payment of



                              9

property taxes to minimize the fiscal problems associated with


delinquent      taxes   due   on   rental     properties   and   promoting


appropriate      maintenance       of    rental   properties.         Thus,


plaintiffs must show that the ordinance is not rationally


related to those objectives.            We conclude that the plaintiffs


have not met that burden for the reasons articulated in the


Court of Appeals partial dissent.


     The Court of Appeals majority explained its finding of an


equal protection violation by stating that the ordinance 


     does not include and affect all persons of the same

     class (businesses) and extends immunities or

     privileges to an arbitrary class (businesses who

     are not owners of rental properties and who are

     immune from the requirement of paying real property

     or income taxes before obtaining a certificate of

     registration), while denying the exact immunities

     and privileges to others of a like kind (businesses

     who are owners of rental properties and are

     required to pay all previously billed property

     taxes   before    obtaining   a    certificate   of

     compliance). [244 Mich App 56-57.]


     This analysis is incomplete. The majority concludes that


there is an equal protection violation simply because two


classes of businesses are treated differently.              If that were


all that is required, then virtually any classification could


be successfully challenged.          The rational basis test requires


that the plaintiff also demonstrate that there is no rational


basis     for    the    challenged       distinction.       As   to    that


consideration, the Court of Appeals majority said:


             [W]e find that plaintiffs have met their

        burden   of  showing that   the  classification

        established by the ordinance is not rationally

        related to a legitimate governmental interest


                                        10

     because the ordinance subjects a subset of

     businesses to a financial requirement to operate

     and does not include or affect the entire class,

     thus extending a privilege to a certain set of

     businesses while denying that privilege to another

     (rental dwellings).    Accordingly, we find this

     distinction to be a violation of equal protection.

     [244 Mich App 57 (emphasis added).]


     Manifestly, this conclusion merely repeats the majority’s


previous   observation      that   the    city    has   treated   these


properties differently than others, and fails to analyze the


reasons supporting that legislative decision.


     As noted in the dissent, the plaintiffs have not disputed


the city’s claims that residential rental properties are


disproportionately delinquent compared to other classes of


property and that the failure to receive taxes when due causes


the city fiscal problems.      Nor did the plaintiffs refute the


city’s   explanation   of   the    distinction     between   owners   of


residential rental properties who must obtain certificates of


compliance pursuant to the property maintenance code and


owners of other businesses who must obtain certificates of


registration.    By    encouraging       timely    payment   of   taxes,


interest and penalties are avoided.              This, in turn, frees


funds to maintain the property, thereby promoting the health,


safety, and welfare of residents.5           These concerns do not



     5
       Interestingly, in its analysis of the plaintiff’s due

process claim, the Court of Appeals majority found this

justification a rational basis for the ordinance:


          [W]e agree with          defendant that requiring

     rental owners to pay          delinquent property taxes

                                                    (continued...)


                                   11

necessarily apply to other businesses, which are more likely


to be tenants rather than owners of leased property. 


     Although legitimate arguments can be made regarding the


wisdom of the approach taken by the city in addressing the


problems of delinquent taxes and the failure to maintain


residential rental property, it is not for the courts to


substitute their judgment for that of legislative bodies on


such questions of economic and social policy.     We affirm that


as long as the ordinance is rationally related to the city’s


legitimate purposes, it does not violate equal protection


guarantees. 


                              VII


     Because    the   plaintiffs    have   not   overcome   their


considerable burden of demonstrating that the city lacked any



     5
       (...continued)

     before receiving a certificate of compliance is

     reasonably related to defendant's stated purpose of

     protecting the safety, health, and welfare of those

     inhabiting    dwellings     and     of    eliminating

     deteriorated     dwellings      from    the     city.

     Uncontroverted    affidavits    of   city   officials

     indicate that houses in the city that revert to the

     state because of tax delinquency are normally

     rental properties and are usually dilapidated when

     they do revert to the state.


          Accordingly, we conclude that there is a

     rational relationship between the requirement that

     any delinquent property taxes be paid before a

     certificate of compliance can be issued for a

     rental dwelling unit and the city's legitimate

     interest in providing safe and habitable rental

     dwellings    to   its    citizens.    Consequently,

     defendant's   ordinance   does  not   violate   the

     substantive due process rights of plaintiffs. [244

     Mich App 54-55 (emphasis added).]


                              12

rational basis for its ordinance, the city was entitled to


summary   disposition      on    the    equal     protection      claim.


Accordingly, we reverse the judgment of the Court of Appeals


in part, and reinstate the judgment of the Muskegon Circuit


Court.


     CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and


MARKMAN, JJ., concurred.





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