BY BENJAMIN J. GOHS, EDITOR
Boyne City commissioners, on Tuesday July 26, determined the dilapidated Chapp house must be demolished per the findings from the Dangerous Building and Structure Hearing of April 28.
Following several hours of expert testimony, and presentations by both sides in the case, commissioners voted unanimously—without deliberation—to uphold hearing officer Don Gilmet’s decision that the house must come down.
“I am very confident that all the procedures and policies are in place to allow you to move forward with this ordinance,” Boyne City Manager Michael Cain told the Boyne City Commission.
The issue over the house, located at 204 East St. in Boyne City, began on March 16, when neighboring property owner Todd Wright filed a complaint of “dangerous structure” with the city.
Wright said he is concerned that such a dilapidated structure is near his office and his daughter’s house.
“I would buy it in a heartbeat just to clean it up because it’s probably the biggest eyesore in the area … if you don’t count the commercial buildings,” he said.
Wright said a hole in the roof has been there much longer than a year, despite claims by the Chapps.
“It’s time for the city to put their foot down and say ‘that’s enough of this’ and then go after some of the other derelict properties around town,” he said, “because this is really like a cancer.”
On April 28, after numerous requests to inspect the property, the city obtained a search warrant and an inspection of the house was performed.
Later in the day, on April 28, a Dangerous Building Hearing was held.
Representatives from the city presented their case as did representatives speaking on behalf of the property owners, the Chapp family.
According to Gilmet, there was overwhelming evidence the structure was dangerous and should be demolished.
He then set a deadline of May 20, the date which the property must be cleaned up; and, June 30, the date by which the house was to be destroyed and the property made to look presentable.
Paul Barden, who works in a business near the property in question, also said, despite what the Chapps claim, the hole in the roof has been there longer than just this past winter.
He and Wright also said the house has been in disrepair for many decades.
According to Barden, he had planned to purchase the property from the Chapps but the deal fell through, Barden said, because the Chapps took too long.
“My only interest now is the fact that I just want to see this place safe,” he said.
According to a July 26 memo from Boyne City Planning Director Scott McPherson to the city commission, the property was visually inspected on July 1, by city staff, and found that the second deadline had not be complied with.
As a result, hearing officer Gilmet requested enforcement of the order to destroy the building.
According to the city, the house has been vacant for several decades. A portion of its roof has caved in, as has a section of floor. The outside of the house appears to be in general disrepair, as was the property with fallen tree limbs and stray shingles among other debris.
The city argued that, since the property’s 2016 State Equalized Value is $22,800, and an estimate from Legacy Construction states it would cost $163,231.88 to make the house safe, it is not worth saving.
The Chapp family’s legal representation in this matter was attorney John Jarema, of Charlevoix, who said he had several issues concerning him, including the ordinance itself, how the ordinance was applied to his clients, and the recommendations made by the hearing officer.
“[T]his ordinance is asking this commission to demolish a structure—to demolish private property—and, as such, my clients the Chapps have a due process right to make sure that this ordinance is correct, this ordinance is followed through to the letter of the law … and I don’t believe that that happened.”
Jarema claimed the city does not have a mechanism to enforce its dangerous building ordinance. He also claimed the city never served the Chapps with a municipal civil infraction before having the demolition of their property ordered.
“Although on one part, your charter/your code, defines who can enforce a municipal civil infraction, it does not say who can enforce this particular ordinance—it’s absolutely lacking,” he said.
Jarema also pointed out that the city’s building code violation ordinance #14 is a stand-alone ordinance which is not defined nor codified in the city’s zoning nor planning acts.
Jarema read from the city’s code which, in one section states that all city officers and employees may issue a municipal civil infraction. In another section, it states that all city officers and employees may issue such infractions for codes they represent.
Under the city’s municipal civil infraction definition section, it states that authorized city officials include the city manager, city clerk, police officers, or other personnel of the city duly authorized by the city manager.
“So, you’ve got two competing things: one says every employee can do it; and, one says any of those specifics … or any other person duly authorized by the city manager,” said Jarema, who added that there is a discrepancy in who can file a municipal civil infraction.
Jarema said the ordinance and the matter in question were enforced by McPherson.
“I want to rhetorically ask you, Mr. Cain and the board, is there anything that appoints Mr. McPherson to enforce this particular ordinance?” Jarema said… “I don’t think there is.”
He added, “You cannot take the authority given to Mr. McPherson, given to the zoning department, given to the planning department, the authority to enforce those regulations and say that he can enforce a stand-alone ordinance. You cannot do that. It has to have specific authority, and he doesn’t.”
Boyne City Commissioner Ron Grunch asked Jarema if he thought the Boyne City Commission had the authority to enforce the stand-alone ordinance.
“We have broad-based authority to make decisions,” Grunch said.
Jarema responded, “You do. But, did this city commission … delegate Mr. McPherson to specifically act on your behalf as the commission?”
Jarema also said, since the city commission acts as both the enforcing agency and the appeals agency in the matter, his client’s right to due process is being violated.
According to Jarema, state law says the city must have a named enforcing agent, and, if it is the planning director, he must be officially designated to do so.
“I want to know how the planning director can enforce another ordinance that’s not in his jurisdiction,” said Jarema.
Cain told commissioners McPherson is, by his employment as planning director, authorized by the city to act as the enforcing agent in regards to what are deemed “dangerous structures.”
Kevin Schlickau, a Charlevoix County Building Official and Electrical Inspector, attended the inspection of the house prior to the first hearing.
Jarema asked Schlickau if he witnessed any exterior walls bowing, leaning or whether the building was likely to collapse.
Schlickau said “no.”
Jarema asked if the outside was secure from children trying to get in the house.
Schlickau said the door had to be unlocked to let him in to inspect it.
Schlickau summarized by saying the Chapp house is not likely to fall down any time soon.
Jarema asked if there is anything that prevents the building from being brought up to code.
Schlickau said “no.”
Kevin Stark, the Field Building Inspector for Charlevoix County, was then asked questions on the matter.
Stark said that, while he was in the building, he was asked to inspect the foundation.
He said the foundation is in the shape one would expect for an older type foundation and that he did not see any signs of it nearing collapse.
Jarema asked if the structure was repairable.
Stark said “yes” the house is repairable.
“To me, it’s no different than a number of the fire jobs that I’ve done before, where a fire starts in a certain area, it starts in the basement, burns up through the floor, burns up through the roof—they repair that section and we drive on,” he said.
Jarema asked if it was accurate that the county only concerns itself with whether a structure can be brought up to the minimum safety standards, regardless of what it would cost the property owner.
“I’m not allowed to look at cost,” said Stark.
Jarema asked Stark if there was any discussion between he and McPherson, Gilmet or anyone else that the building couldn’t be brought up to code.
“All three of those gentleman admitted to me that it was fixable but that it was financially not viable,” said Stark. The third person in question was not identified.
Jarema then asked Stark if, in his opinion, this is a dangerous building.
“Not by our definition,” said Stark. “It’s not in danger of collapsing, it’s secure on all sides so that you couldn’t just wander on in, and it looked no different than any older structure that needed repair.”
The city’s attorney, James Murray of Petoskey, asked Stark repeatedly if he believed the cost to fix the property would exceed the property’s value.
Stark said it is not within the scope of his duty to decide whether personal property, from a financial perspective, is worth saving; adding that he has seen people put large amounts of money into projects he felt were not worth saving.
The property owners and a contractor who attended the hearing said repairs were being made to the roof and floor. The owners said the rest of the house would be restored to a usable state.
However, some neighboring property owners warned that they have been given assurances for decades that the property would be taken care of only for the house to continue to crumble.
The Chapps may now either comply with the demolition order or appeal.