____________________________/ BREIF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY DISPOSITION NOW COMES Defendant, Joseph Giannosa and Beth Giannosa, Pro Se, who files this motion pursuant to MCR 2.116 (C)(1), MCR 2.116 (C)(4), MCR 2.116(C)(5), MCR 2.116(C)(6), MCR 2.116(C)(8) for summary disposition in its favor and against the Plaintiff, CHARTER TOWNSHIP OF CHESTERFIELD, and support thereof incorporates the brief attached hereto and Defendants have read the pertinent ordinances and statutes relating to building and zoning codes in Michigan and are either without jurisdiction of such or are otherwise in compliance. Support thereof incorporates the brief attached hereto and incorporated here in by reference. . FACTS Defendant had purchased property commonly known as 55345 Zuhlke Road in 1991 and subsequently purchased two contiguous pieces of land which was and still is zoned agricultural-residental for the purposed of raising chickens and growing other types of food at leisure (See Affidavit). In accordance with Michigan State Laws pertaining to residential zoning or municipality, property must be 75% residential to be considered residential which Defendant’s property is not (See MCL Law).(See Google Earth). Based on the surrounding area (See Exhibit of Zoning Map) the area is agricultural as the surroundings are farms and 55345 Zuhike Road was built in 1890 as a homestead farm house. Defendant purchased this house because of the area and its particular zoning type as Defendant planned on using the land for agricultural in accordance with Michigan State and Constitutional Law. . STANDARD OF REVIEW . MCR 2.116 ARGUMENTS The following outlines the legal reasons that Defendants should be granted a motion for summary disposition in their favor. . MCR 2.116(C)(1) LACK OF JURISDICTION OF THIS COURT This court lacks jurisdiction over the person or property. MCLA 125.3407 Certain violations as nuisance per se. (See attached Exhibit) says, “except as otherwise provided by law”… This being the first sentence in the statute renders the statute vague and should be considered void for vagueness. It also states “The court shall order the nuisance abated, and the owner or agent in charge of the dwelling, building, structure, tent, recreational vehicle, or land is liable for maintaining a nuisance per se. So, as the law reads, the court shall order the owner “liable” and if no other law prohibited the courts action the court could order the nuisance abated, however there are many laws restricting governmental interference with private property. The remedies stated include; “The legislative body shall in the zoning ordinance enacted under this act designate the proper official or officials who shall administer and enforce the zoning ordinance and do 1 of the following for each violation of the zoning ordinance; (a) Impose a penalty for the violation. (b) Designate the violation as a municipal civil infraction and impose a civil fine for the violation. (c) Designate the violation as a blight violation and impose a civil fine or other sanction authorized by law. This subdivision applies only to a city that establishes an administrative hearings bureau pursuant to section 4q of the home rule city act, 1909 PA 279, MCL 117.4q.” Injunctive relief is not mentioned in any of these remedies. “This subdivision applies only to a city that establishes an administrative hearings bureau pursuant to section 4q of the home rule city act, 1909 PA 279, MCL 117.4q.” and therefore parts of this Act only apply to “a city that establishes an administrative hearings bureau” and not to this court. The ordinance in the instant case is stated below as (76-653)*(1) it is a zoning ordinance but references article II of chapter 14*(2) of the building code which adopts by reference Stille-DeRossett-Hale single state construction code act.” The state construction code is an administrative code *(3) which promulgates “rules” and “guidelines” defined in Act No. 306 of the Public Acts of 1969,( ADMINISTRATIVE PROCEDURES ACT OF 1969) being sections 24.203 *(4) and 24.207 *(5) of the Michigan Compiled Laws. The act states that these rules and guidelines do not have the force or effect of law, and bind the agency but does not bind any other person. Defendants contend that these rules and guidelines are without the jurisdiction of their private property. The fact that these “laws” only pertain to licensed individuals is overly apparent throughout the statute as well as on the building permit and homeowner affidavit forms which the township requires to be filled out when obtaining a permit. Defendant is a private natural person and cannot be compelled to enter into a contract (permit/license) without his consent. Defendant further contends that although the legislature established the administrative agency, the agency cannot enact laws, as evidenced by MCL 24.203 and 24.270. The Michigan Constitution limits the authority to enact laws to the legislature only *(6). Therefore the proper venue for building code violations is the “department of consumer and industry services” which means this court lacks subject matter jurisdiction.
Posted on: Sun, 27 Oct 2013 03:50:54 +0000
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