            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                           COURT OF APPEALS



BAILEY & BIDDLE LLC,                                               UNPUBLISHED
                                                                   February 12, 2019
              Appellant,

v                                                                  No. 340989
                                                                   Berrien Circuit Court
CITY OF ST. JOSEPH,                                                LC No. 17-000112-AA

              Appellee.


Before: METER, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

       The present case arises from an order for demolition of a home owned by appellant
Bailey & Biddle, LLC. The City of St. Joseph’s chief building official ordered the demolition of
the property in accordance with the International Property Maintenance Code (IPMC) as adopted
by the City. Appellant appealed the building official’s decision to the City’s Property
Maintenance Board of Appeals (PMBOA), which affirmed the demolition order. Appellant then
appealed to the circuit court, and the circuit court affirmed the decision of the PMBOA.
Appellant now appeals the circuit court’s decision to this Court as on leave granted.1 We affirm.

                                      I. BACKGROUND

        Appellant owns an unoccupied, single-family home in the City of St. Joseph. The home
was constructed around 1900 and was purchased by appellant in 2000. Beginning in 2013, the
city began to notice several code violations on the exterior of the home, including a defective
roof. Appellant was given more than a year to replace the roof and repair the remaining issues,
but failed to do so. Appellant was again notified of the necessity of these repairs in 2015 and
met with city officials to discuss a repair plan. The city informed appellant that replacing the
roof was the highest priority. Appellant pulled a permit to replace the roof, but never completed


1
 Bailey & Biddle LLC v City of St. Joseph, unpublished order of the Court of Appeals, entered
April 10, 2018.
the work. Appellant placed a tarp over the roof, but the tarp would often come loose, revealing a
hole in the roof. The hole was large enough that birds regularly flew into the home.

         Appellant was reminded several times that it needed to repair the home, but appellant
failed to do so. Because of appellant’s failure to begin substantive work on the roof, the city
revoked appellant’s permit in early 2017 and obtained an administrative search warrant to search
the interior of the home. The city’s chief building official inspected the home and took several
pictures. The pictures revealed severe mold and water damage. The ceiling had caved in in
several places and there was a hole in the floor. Water damage had caused the plaster to fall off
the walls throughout the home. Several structural supports were so water logged that they could
not reliably hold their loads. The property was also without utility services, and had been since
at least the mid-2000s.

        Because of the extensive damage to the home, the city concluded that the home was
beyond reasonable repair and ordered appellant to demolish and remove the structure. Appellant
appealed this decision to the PMBOA, which held a hearing on his claim. At the hearing, the
city presented evidence that the repairs necessary to make the home habitable would cost roughly
$122,000. The structure had a true cash value between $40,000 and $50,000 in habitable
condition.2 Appellant, who was represented by an attorney, disagreed with the repair estimate,
and presented the report of an engineer who had inspected the home. The engineer opined that
the cost to repair the home would be 50% to 75% of the cost estimated by the city. Appellant
also offered a statement from a retired demolition contractor who opined that the city’s figures
were based on contractor prices and that most of the repair work could be done by appellant.
The city expressed concern over whether appellant could afford to make the repairs given that
appellant was in arrears on the property taxes. The city also questioned whether appellant’s
engineer’s estimate accounted for the cost of removing the decayed materials and pulling
building permits.

        The PMBOA members likewise questioned appellant’s repair estimate, opining that
water damage is often worse than it appears. The PMBOA members also questioned whether
appellant had the skill and expertise to perform the repairs itself and noted appellant’s history of
failing to maintain the property. Accordingly, the PMBOA voted to affirm the demolition order.
Appellant then appealed the PMBOA’s decision to the circuit court, which affirmed the
PMBOA, finding that there was overwhelming evidence to affirm the demolition order. This
appeal followed.

                                          I. ANALYSIS

                        A. CIRCUIT COURT STANDARD OF REVIEW

       Appellant first argues that the circuit court applied an incorrect standard of review by
considering the whole record to determine whether the PMBOA’s decision was supported by
competent, material, and substantial evidence. According to appellant, the circuit court’s review


2
    The estimated true cash value of the land was also between $40,000 and $50,000.


                                                -2-
should have been limited to whether the PMBOA’s decision was authorized by law.                   We
disagree.

        At the outset, we note that appellant concedes on appeal that it agreed to the circuit
court’s application of the substantial evidence test. “A party is not allowed to assign as error on
appeal something which his or her own counsel deemed proper at trial since to do so would
permit the party to harbor error as an appellate parachute.” Braverman v Granger, 303 Mich
App 587, 608; 844 NW2d 485 (2014) (internal citation, block notation, and quotation marks
omitted). Accordingly, appellant has waived this issue.

         In any event, even disregarding appellant’s waiver, its claim is without merit. Under
Const 1963, art 6, § 28, final administrative decisions, “which are judicial or quasi-judicial and
affect private rights or licenses, shall be subject to direct review by the courts” of this state. The
reviewing court must determine (1) whether the decision is “authorized by law” and (2) whether
the decision is “supported by competent, material and substantial evidence on the whole record.”
Const 1963, art 6, § 28. Here, there is no question that the PMBOA’s decision affects
appellant’s private right to the unencumbered enjoyment of the subject property. Moreover, it is
clear to this Court that the PMBOA proceedings are quasi-judicial. While the PMBOA meetings
do not share all of the hallmarks of judicial proceedings (in particular, our strict evidentiary
rules), the meetings certainly share key similarities with court proceedings, including the right to
notice, the right to representation, the right to present evidence and argument, and the right to a
neutral decision maker. See Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich
83, 91-92; 803 NW2d 674 (2011) (concluding that administrative officials engage in a quasi-
judicial function when they resolve factual claims on a case-by-case basis through an evaluation
of the evidence). Accordingly, Const 1963, art 6, § 28 required the circuit court to review the
PMBOA’s decision to determine whether the decision was authorized by law and whether the
decision was supported by competent, material and substantial evidence on the whole record.
Appellant’s argument to the contrary is without merit.

                            B. OPPORTUNITY TO MAKE REPAIRS

        Next, appellant argues that the City’s demolition order was not authorized by law and
violated its due-process rights because the City failed to provide appellant an opportunity to
repair the structure. We disagree.

         To the extent that appellant asserts that due process was violated because no opportunity
to repair was given, there is no fundamental constitutional right to repair a structure that is unfit
for human occupancy, and any private right to repair must yield to the city’s higher interest in
protecting the safety of its citizens. See Bonner v City of Brighton, 495 Mich 209, 228-231; 848
NW2d 380 (2014). Due process does entitle appellant to a meaningful opportunity to be heard
before a permanent deprivation, id. at 238-239, but, in this case, there is no concern that
appellant was not given a meaningful opportunity to present his case. Indeed, appellant was
given a full hearing before the PMBOA at which he was represented by counsel and presented
evidence for an individualized fact finding. In short, there is no evidence that appellant was
denied due process.



                                                 -3-
        Regarding appellant’s claim that the PMBOA’s decision was not authorized by law,
appellant argues that, because a right to repair is guaranteed under the city’s ordinances, he could
not be ordered to demolish the home before he had been given a reasonable opportunity to repair
it. We review de novo the “interpretation and application of a municipal ordinance.” Id. at 221-
222. The “goal of construction and interpretation of an ordinance is to discern and give effect to
the intent of the legislative body.” Id. at 222. The most reliable evidence of this intent is the
plain and ordinary meaning of the ordinance itself. Id.

       As adopted by the City, the IPMC provides for demolition of property as follows:

               The code official shall order the owner of any premises upon which is
       located any structure, which in the code official’s judgment is so old, dilapidated
       or has become so out of repair as to be dangerous, unsafe, insanitary or otherwise
       unfit for human habitation or occupancy, and such that it is unreasonable to repair
       the structure, to demolish and remove such structure; or if such structure is
       capable of being made safe by repairs, to repair and make safe and sanitary or to
       demolish and remove at the owner’s option; or where there has been a cessation
       of normal construction of any structure for a period of more than two years, to
       demolish and remove such structure. [2003 IPMC § 110.1 (emphasis added).]

As used in this provision, the term “or” is disjunctive, signaling a choice between alternatives.
See Ellison v Dep’t of State, 320 Mich App 169, 179; 906 NW2d 221 (2017). Consequently,
under 2003 IPMC § 110.1, demolition may be ordered under any of three unique circumstances.
First, demolition and removal of a structure shall be ordered when, (1) the structure is unsafe for
human occupancy and (2) it is unreasonable to repair it. Second, alternatively, if the structure is
capable of being made safe by repairs, the code official shall give the owner the option to repair
the structure or demolish and remove it. Third, if there has been a cessation of normal
construction on a dilapidated structure for more than two years, the code official shall order the
owner to demolish and remove the structure.

        Considering these three distinct scenarios, it is clear that a reasonable opportunity to
repair is only required when the structure is capable of reasonable repair. When the structure is
incapable of reasonable repair, however, the code official “shall” order demolition. See Russell v
Detroit, 321 Mich App 628, 639; 909 NW2d 507 (2017) (concluding that the term “shall”
indicates a mandatory directive). Thus, because the home was unreasonable to repair, 2003
IPMC § 110.1 did not require that the city give appellant an opportunity to repair it before
ordering demolition.

        Alternatively, appellant argues that an opportunity to repair the home is mandated under
the IPMC’s notice provision, 2003 IPMC § 107. 2003 IPMC § 107.1 mandates that all orders
issued under 2003 IPMC § 110.1 shall comply with the notice requirements set forth in 2003
IPMC § 107.2. In turn, 2003 IPMC § 107.2 requires the notice to include “a correction order
allowing a reasonable time to make the repairs and improvements required to bring the dwelling
unit or structure into compliance with the provisions of this code.” Thus, appellant argues that,
because an order to repair is required under 2003 IPMC § 107.2, the lack of a reasonable time to
repair in 2003 IPMC § 110.1 is immaterial. We disagree.


                                                -4-
        We must read provisions of an ordinance “together to produce an harmonious whole
and to reconcile any inconsistencies wherever possible.” SMK, LLC v Dep’t of Treasury, 298
Mich App 302, 309; 826 NW2d 186 (2012) (internal citation and quotation marks omitted). In
doing so, we avoid any construction that would render any part of the ordinance surplusage or
nugatory. Id. at 305. As previously stated, 2003 IPMC § 110.1 draws a distinction between
structures that are reasonable to repair and those that are not. Property owners are given a
reasonable opportunity to repair those structures that are capable of reasonable repair and are
given no opportunity to repair those structures that are not. Reading a repair requirement into
2003 IPMC § 110.1 by way of 2003 IPMC § 107.2 would therefore require this Court to ignore
the former’s distinction between repairable and unrepairable structures. In other words,
appellant’s proposed interpretation impermissibly renders the first demolition scenario in 2003
IPMC § 110.1 nugatory. To avoid this construction, we conclude that the provisions should be
harmonized by recognizing that the reasonable time to repair a structure that is incapable of
reasonable repair is no time at all. Accordingly, a notice and order for demolition need not
include a repair provision when the structure “is so old, dilapidated or has become so out of
repair as to be dangerous, unsafe, insanitary or otherwise unfit for human habitation or
occupancy, and . . . it is unreasonable to repair the structure.” 2003 IPMC § 110.1.

        Appellant raises several additional arguments asserting that he should have been given a
reasonable time to make repairs. Each of these arguments is without merit. First, appellant
asserts that a reasonable time to make repairs should be given when the property has historical or
sentimental value. We disagree. While historical or sentimental value may be considered when
determining whether a property is reasonably capable of repair, Bonner, 495 Mich at 233, once
the property has been deemed incapable of reasonable repair, the only option is demolition, see
2003 IPMC § 110.1. Second, appellant argues that the city’s notice of code violations in 2013
was procedurally deficient and that the city improperly concluded that appellant’s roofing permit
had expired. We need not answer these question, however, because the demolition order was
issued because the structure was presently unsafe for human occupancy and incapable of
reasonable repair. Any prior opportunity appellant had to maintain the structure before it became
irreparable is irrelevant.3 Finally, appellant argues that the present case is indistinguishable from
Himes v City of Flint, 38 Mich App 308; 196 NW2d 321 (1972), wherein this Court concluded
that the city’s notice of violations was inadequate as a matter of law because it failed to advise
the property owners of the defects which would justify demolition of their structure. Himes,
however, is not binding upon this Court, MCR 7.215(J)(1), and, in any event, does not interpret a




3
  We note that, even had the 2013 notice been deficient, appellant received several additional
notices between the initial notice and the demolition order. Indeed, appellant had met with the
city to discuss the violations. Thus, appellant cannot seriously argue that it was not aware of the
code violations. Regarding the roofing permit, the city presented testimony that a roofing permit
expires 180 days after it is issued if no substantive work is performed under the permit. The city
also presented evidence that appellant did not undertake any substantive repair work within the
180-day period. Rather, appellant merely placed a tarp over the roof.


                                                -5-
demolition provision similar to 2003 IPMC § 110.1.4 Accordingly, Himes offers little support
for appellant’s argument that a demolition order under 2003 IPMC § 110.1 must include an
opportunity to repair.

                                    C. PMBOA’S FINDINGS

        Finally, appellant argues that the PMBOA and the circuit court erred by affirming the
city’s demolition order. “A final agency decision is subject to court review but it must generally
be upheld if it is not contrary to law, is not arbitrary, capricious, or a clear abuse of discretion,
and is supported by competent, material and substantial evidence on the whole record.”
Vanzandt v State Employees Retirement System, 266 Mich App 579, 583; 701 NW2d 214 (2005).
An agency’s “decision is not ‘authorized by law’ when it is in violation of a statute or a
constitutional provision, in excess of an agency’s statutory authority or jurisdiction, made upon
unlawful procedure that results in material prejudice, or when it is arbitrary and capricious.”
Bureau of Professional Licensing v Butler, 322 Mich App 460, 465; 915 NW2d 734 (2017). In
applying the substantial-evidence test, the circuit court must review the entire record to
determine whether reasonable minds would accept the evidence as sufficient to support the
agency’s decision. In re Grant, 250 Mich App 13, 18-19; 645 NW2d 79 (2002). “Our review of
the circuit court’s decision is limited to determining whether the court applied correct legal
principles and whether it misapprehended or grossly misapplied the substantial evidence test to
the agency’s factual findings.” Id. at 18 (internal citation and quotation marks omitted). “In
other words, the circuit court’s legal conclusions are reviewed de novo and its factual findings
are reviewed for clear error.” Braska v Challenge Mfg Co, 307 Mich App 340, 352; 861 NW2d
289 (2014).

        Appellant raises several challenges to the PMBOA’s decision to affirm the demolition
order and the circuit court’s decision to affirm the PMBOA. In essence, appellant argues that the
PMBOA’s decision was not supported by sufficient factual findings to establish that the home
was incapable of reasonable repair. As a general matter, “findings of fact are sufficient where it
is manifest that the fact finder was aware of the factual issue, that [it] resolved it, and that it
would not facilitate appellate review to require further explanation of the path followed by the
fact-finder in reaching the result.” Blom v Thermotron Corp, 139 Mich App 50, 55; 360 NW2d
172 (1984). Although we agree with appellant that the PMBOA could have stated its factual
findings more explicitly, we conclude that the PMBOA’s discussion of the property and
appellant’s plan to repair it sufficiently resolved the factual issues to support its decision to
affirm the demolition order.




4
  We recognize that the notice provision interpreted in Himes was similar to 2003 IPMC § 107.2;
however, as already noted, as applicable to this case, the requirements of 2003 IPMC § 107.2
must be read in light of 2003 IPMC § 110.1’s distinction between reasonably repairable
structures and those that are incapable of reasonable repair. Because there is no indication that
the demolition provision in Himes contained a similar distinction, Himes is distinguishable from
this case.


                                                -6-
        In this case, the parties do not dispute that the home was unsafe for human occupation;
rather, the central issue is whether it was unreasonable to repair the home. Relevant
considerations for determining whether it is reasonable to repair a structure include the estimated
value of the property and the cost of repairs, whether the owner has presented a “viable repair
plan,” and any “cultural, historical, familial, or artistic value” the structure may have. Bonner,
495 Mich at 233.

        Appellant argues that the PMBOA improperly shifted the burden to it by considering
appellant’s financial ability to make the repairs and appellant’s home-repair expertise. We
disagree. Appellant’s ability to pay for the repairs was relevant to whether appellant had a viable
repair plan. In turn, appellant’s lack of personal expertise in home repair was relevant to its
ability to pay for the repairs, especially given the testimony that appellant could undertake the
repairs itself to avoid the cost of hiring a contractor. Moreover, contrary to appellant’s argument,
appellant’s prior failure to maintain the structure was relevant to appellant’s ability—financial or
otherwise—to make the repairs presently necessary to render the structure habitable.

        According to appellant, the PMBOA failed to consider the home’s sentimental or
historical value when determining that it was unreasonable to repair it. Appellant, however, has
not provided any explanation as to why the structure has sentimental or historical value.
Appellant offered testimony that its agent had lived in the home when he was younger. This
testimony, however, was not offered to show any sentimental value. Rather, it was offered to
rebut the city’s assertion that water service to the home was discontinued in 1979. Appellant’s
agent testified that the water service was not stopped until the mid-2000s, but did not testify that
the home held any non-economic value to appellant.

        Appellant also argues that the PMBOA improperly speculated about other possible
problems with the structure and that the PMBOA improperly considered the board member’s
personal experiences with moisture damage. The board members considered the photographs of
the water damage in the home and noted that, in their experience, when water damage was as
extensive as portrayed in the photographs, hidden damage was usually present. This is not
improper speculation; rather, it is the board members’ application of their relevant expertise to
the evidence presented at the meeting. Indeed, this is the basic purpose of the IPMC’s
requirement that board members be “qualified by experience and training to pass on matters
pertaining to property maintenance.” 2003 IPMC § 111.2. The PMBOA was created for the
very purpose of applying property-maintenance expertise to evidence of property damage and
appellant has not shown that any extra-evidentiary consideration improperly influenced the
PMBOA’s decision.

       Appellant asserts that the PMBOA allowed the improper denigration of a qualified expert
by the City’s attorney. More specifically, appellant asserts that it was improper for the City’s
attorney to characterize appellant’s engineer as considering the structural integrity of building
from the perspective of an engineer as compared to considering all of the problems that needed
to be rectified for code compliance. Again, we disagree. There is nothing improper in an
attorney challenging an expert witness’s testimony on the basis of the evidence, see People v
Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008), and there is nothing wrong with a fact
finder assessing expert credibility, see SSC Assoc Ltd Partnership v Gen Retirement Sys of
Detroit, 210 Mich App 449, 452; 534 NW2d 160 (1995).

                                                -7-
        Finally, appellant asserts that the PMBOA impermissibly expressed personal animus
toward appellant and, in doing so, violated appellant’s due-process right to an impartial decision-
maker. See Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012) (“Due process
requires that an unbiased and impartial decision-maker hear and decide a case.”). Yet, the only
evidence of bias that appellant offers are his claims that the PMBOA improperly considered
appellant’s capacity to make the necessary repairs. As already discussed, appellant’s capacity to
perform the repairs was a relevant consideration for the PMBOA. Accordingly, appellant has not
established bias. See Schellenberg v Rochester Mich Lodge No 2225, 228 Mich App 20, 39; 577
NW2d 163 (1998) (concluding that opinions formed by decision makers on the basis of the facts
presented, even when critical of a party, do not constitute bias or partiality).

         The record shows that the structure held an estimated true cash value between $40,000
and $50,000 in habitable condition. Estimates of repairs necessary to make the home habitable
ranged from roughly $61,000 to roughly $122,000. As it stands, the structure has severe water
damage, widespread mold infestation, and extensive structural damage. Although appellant
claimed that it could perform the repairs itself, the record showed that appellant had contributed
to the structure’s dilapidation by failing to undertake necessary repairs despite years of notices
from the city. Thus, there was sufficient evidence from which reasonable minds could determine
that it was unreasonable to repair the property. Accordingly, the PMBOA, and the circuit court
on first appeal, did not err by affirming the demolition order

       Affirmed.



                                                            /s/ Patrick M. Meter
                                                            /s/ David H. Sawyer
                                                            /s/ Thomas C. Cameron




                                                -8-
