The Coronavirus and the State of Emergency
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive cases of coronavirus, also known as COVID-19, in the State of Michigan. On March 16, 2020 Governor Whitmer signed Executive Order 2020-9 which closed restaurants, bars, cigar lounges, movie theaters, casinos, libraries, and gyms from the public. On March 23, 2020, Governor Whitmer signed Executive Order 2020-21 which imposed a temporary stay-at-home order for non-essential matters, which was later extended and expanded through Executive Orders 2020-42, 2020-59, 2020-70, 2020-77, and 2020-92, and is currently in effect for the majority of the State through at least May 28, 2020.
In Michigan, as in most states, the state authority has significantly limited access to public places, stores, restaurants, movie theaters, offices, and other businesses through the issuance of executive orders prohibiting such access. For businesses whose viability depends on the public’s ability to access that business’ physical location, the issuance of such orders has resulted in a loss of use of the property and a severe interruption in business. For some, their insurance policies may appear to insure against loss of use of the insured property when a civil authority prohibits the insured from using the insured property, such as through issuance of an executive prohibiting such access, or there is damage to the property resulting in its loss of use. While it may seem as though the business climate created by the Coronavirus (COVID-19) is unique to our generation, this is not the first time a Governor’s executive order has impacted businesses in Michigan and there are several cases from the Michigan Court of Appeals which can provide guidance.
The full economic impact of COVID-19 and its related “stay at home” orders cannot be measured right now. Anecdotal evidence suggests that widespread delinquencies and defaults have begun. Condominium and homeowner associations are not immune and can rightly expect negative consequences. As homeowners struggle with job disruptions and loss of income, the likelihood of delay or default in payment of assessments becomes a stark reality. And the association’s ability to collect past due assessments is substantially affected by unpaid property taxes, by delinquent mortgages having priority over assessments and by homeowner bankruptcies. This environment poses unique challenges for associations to continue services uninterrupted, especially when vendors and employees expect timely payment. Read more
Law & Crime Network recently interviewed Kevin Hirzel regarding national issues that are arising due to the Covid-19 crisis . In this Q & A, Kevin Hirzel addresses rent and mortgage concerns, loan modifications, State Executive Orders and Federal stimulus efforts. Viewers from around the nation have questions and concerns about this pandemic and want to know what rights they have. Covid-19 is causing housing concerns across the nation and Kevin Hirzel provides advice on how to navigate this national crisis. The interview can he found here.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2019, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine in 2018 and 2019, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or email@example.com.
On February 12, 2020, the Ottawa County Circuit Court issued a decision in the consolidated cases Duke, et al v Wittenbach, et al, Case No 19-5989-CH and Wittenbach v Duke, et al, Case No 19-5995-CH. The Duke cases are interesting because at first glance they appear to arise out of the intersection of riparian rights and property owner rights but are ultimately resolved through the application of the ordinary easement principles described in more detail below. Nonetheless, given the increase in Great Lakes water levels, the issues presented in the Duke cases may resurface in future cases, and the Court’s means of resolving the dispute could be applied in any such future cases.
In Michigan, a significant portion of commercial and residential real estate development occurs through the creation of either subdivisions or condominiums. Typically, an owner of a large parcel of land will establish a condominium or subdivision as a means of dividing the land into various smaller lots (called “units” in a condominium) that can be individually sold. Although the more recent trend, particularly in residential developments, is to create condominiums, most older developments were done through creating platted subdivisions under the Michigan Land Division Act, MCL 560.101, et seq., or one of its predecessor statutes.
In Michigan the governmental regulation of land use is largely achieved through the Michigan Zoning Enabling Act, (“MZEA”), MCL 125.3101, et seq. The MZEA allows local municipalities to adopt zoning ordinances which regulate the physical appearance and use of property within their jurisdiction. For decades zoning ordinances adopted pursuant to the MZEA or its predecessors focused primarily on regulating the use of property, and not necessarily on the physical form of the property and its buildings. Over the past two decades there has been a slow and gradual shift from use-based zoning to zoning based on the physical form of property, especially in downtown areas.
The relationship between municipalities and land developers is often one of compromise, with each attempting to find some middle-ground in order to move forward on a particular project. In many instances, however, the municipality and developer are unable to reach such a compromise and the parties find that their positions are irreconcilable. In such instances the developer may believe that their only next viable option is to seek redress in the court system. But before doing so, it is important that a developer recognize the limitations on judicial review of land use decisions by a municipality. Specifically, if a developer does not satisfy the “rule of finality,” the developer may find that they have no right to seek a judicial remedy at all. The rule of finality helps to ensure that a municipality is given an opportunity to make a final decision on the matter before it. Without such a final opportunity, judicial review is not available.
Zoning is the regulation of the use of land. It is the exercise of police power intended to protect the public health, safety, and general welfare. Zoning does not create divisions of land nor does it guarantee development. Zoning constitutes an effort on the part of the designated governmental body to avoid land use conflicts between neighbors by ensuring that uses and structures are generally compatible with other uses and structures in the area. It is a means to promote the welfare of the community by guiding orderly growth.
The Michigan Zoning Enabling Act
In Michigan zoning is implemented and statutorily authorized under the Michigan Zoning Enabling Act, MCL 125.3101, et seq. (“MZEA”). The MZEA was enacted in 2006 and consolidated several prior zoning enabling acts Read more