Opinion
No. 341017
07-24-2018
PHIL FORNER, Appellant, v. TOWNSHIP OF SPRING LAKE, Appellee, and MICHIGAN AIR CONDITIONING CONTRACTORS ASSOCIATION, Amicus Curiae.
UNPUBLISHED Construction Code Commission
LC No. 00-000000 Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ. PER CURIAM.
Petitioner, Phil Forner, appeals as of right, pursuant to MCL 125.1518, a final decision from the Michigan Construction Code Commission (the Commission). Forner is a mechanical contractor who performed permitted work on a residence within the Township of Spring Lake (the Township). Jim Callender, an inspector for Michigan Township Services Muskegon (MTSM), an organization with which the Township contracted to administer and enforce the 2015 Michigan Residential Code (the Code), refused to approve Forner's work, stating "Return air not sealed at floor." Forner sought and received clarification of the Code sections upon which Callender relied, and under protest he subsequently performed sealing to Callender's satisfaction. Forner contends that the remedial work was not required by the Code, and that his rights were violated in various ways by process of appeals in which he engaged, including the fact that the Township did not have a construction board of appeals and he did not receive an unbiased decision. We conclude that several legal violations did occur, but that none of them negatively affected Forner's rights. We therefore affirm.
Forner first argues that his rights to due process were violated because he had not been given adequate notice and opportunity to be heard regarding MTSM and the Township's decision that his initial work failed to comply with the 2015 Michigan Residential Code. We disagree.
We review de novo constitutional issues and any other questions of law that are raised on appeal. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998); Hinojosa v Dep't of Natural Resources, 263 Mich App 537, 541; 688 NW2d 550 (2004). We review administrative rules de novo in the same manner as it reviews issues of statutory interpretation, although we generally give some deference to an agency's interpretation of its own rules. Romulus v Mich Dep't of Environmental Quality, 260 Mich App 54, 64-66; 678 NW2d 444 (2003). "Due process requires the existence of reasonably precise standards to be employed by administrative agencies in performing their delegated legislative tasks." Brang, Inc v Liquor Control Comm, 320 Mich App 652, 663; 910 NW2d 309 (2017). An administrative agency must ensure that any party to its proceedings is given adequate notice; a meaningful opportunity to present arguments, evidence, and responses; and fair and impartial tribunal. Livonia v Dep't of Social Servs, 423 Mich 466, 505; 378 NW2d 402 (1985); Hughes v Almena Twp, 284 Mich App 50, 69; 771 NW 2d 453 (2009).
The Stille-DeRossett-Hale Single State Construction Code Act (Act), MCL 125.1501 et seq., prescribes the procedures for the administration and enforcement of the state construction code. See MCL 125.1502a(1)(j); 125.1504(1), (4), (6). MCL 125.1504(1) provides that the state construction code shall consist of "rules governing the construction, use, and occupation of buildings and structures." Under MCL 125.1509(1), a governmental subdivision may contract with a private organization to enforce the construction code by performing inspections, issuing code violations, and ordering remediation for code noncompliance. In this case, the Township hired MTSM to serve as its agency for enforcement of compliance with the construction code. Under MCL 125.1512(1), MTSM had the statutory obligation to periodically inspect all construction within the Township to ensure compliance with the construction code and other applicable laws and ordinances. MCL 125.1512(3) required MTSM to give written notice to the holder of the building permit notifying him of the violation of the Act, or other applicable laws and ordinances. To comport with due process, notice must be "'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Sidun v Wayne Co Treasurer, 481 Mich 503, 509; 751 NW2d 453 (2008), quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950).
R408.30509a (Rule 509a) of Part 5 of the Construction Code pertaining to residential construction inspections provides:
Work shall not be done beyond the point indicated in each successive inspection without first obtaining the approval of the building official. The building official upon notification shall make the requested inspections and shall either indicate the portion of the construction that is satisfactory as completed, or shall notify the permit holder or agent of the permit holder wherein portion of the construction fails to comply with this code. The notification shall include specific reference to the code chapter and section numbers in violation in writing. Any portions that do not comply shall be corrected and such portion shall not be covered or concealed until authorized by the building official.
Forner received written notice on May 5, 2017, from MTSM that the rough-in mechanical inspection had not been approved, in part because Forner had not sealed the cold air returns at the floor. The notice indicated what the inspector required for approval, but he cited no provisions of the construction code in violation of Rule 509a. Forner inquired regarding what provisions had been violated, and MTSM responded by clarifying the specific provisions relied upon for its decision. Although MTSM's response did not elaborate on the rationale for the denial of the inspection approval, Forner received notice of MTSM's decision and explanation of the code provisions that MTSM found Forner's work violated. The record reflects that that notice gave Forner adequate information regarding the basis of MTSM's decision and provided adequate basis for Forner to seek an administrative review of the decision. The notice Forner received was therefore adequate.
The record also indicates that Forner took action by disputing that the cited code provisions required sealing cold air returns. MTSM informed him that he could present his dispute to the Township's construction board of appeals. MCL 125.1514(1) requires that each governmental subdivision enforcing the construction code must create a construction board of appeals that must hear appeals and render decisions within 30 days. There is no dispute that the Township did not have a construction board of appeals and completely failed to meaningfully address Forner's diligent efforts to appeal his dispute. Therefore, the Township clearly violated MCL 125.1514(1). However, the Legislature foresaw situations in which governmental subdivisions might forsake their statutory duties and provided that such failure automatically would be deemed "a denial of the appeal for purposes of authorizing the institution of an appeal to the commission." MCL 125.1514(1). Consequently, despite the Township's dereliction of its statutory duty, its conduct did not deprive Forner of an opportunity to be heard. He had recourse to seek review by the Commission under MCL 125.1516(1), and he did so by filing an Application for Construction Code Appeal with the Michigan Department of Licensing and Regulatory Affairs (LARA) Bureau of Construction Codes (the Bureau).
Forner argues that the delays he experienced in having his appeal decided violated his due-process rights. We are unpersuaded that the Commission's decision was untimely. The Bureau received Forner's application for appeal on August 17, 2017, whereupon it requested an explanation from the Township for its failure to hold an appeal hearing and required it to submit its records. The Township responded on September 11, 2017. The Bureau then determined that the Commission had jurisdiction over the appeal and, on September 25, 2017, submitted Forner's appeal to the Commission for determination by a three-person panel as permitted under MCL 125.1516(1). The Commission heard and decided his appeal on October 11, 2017. Consequently, the Commission panel decided the appeal 17 days after the appeal was submitted to it, well within the "30 days after receipt of the appeal by the commission" (emphasis added) required by MCL 125.1516(1). Nevertheless, whether Forner's due-process rights were violated does not turn on whether the Commission technically complied with the time limit for review of his application for appeal. Instead, the issue rests on whether he had an opportunity to be heard regarding the Township's adverse decision, and whether he received review of his appeal by a fair and impartial tribunal. See Hughes, 284 Mich App at 69.
The record reflects that, before the Commission rendered its decision, the panel gave Forner an opportunity to present his position on all issues raised in his application for appeal. Forner expressed his points of contention with the denial of the rough-in approval. He also stated his belief that his due process rights had been violated by the inadequate handling of his complaint by the Township. Further, Forner explained to the Commission that he satisfied the requirement to seal the cold air returns. After the parties presented their positions, the Commission panelists asked further questions of the parties, and the parties had opportunity to respond. The Commission panelists considered the applicable code provisions, discussed them openly before Forner, and the panel chairperson stated how the construction code provisions applied in this case. The chairperson asked the parties and the panelists if they had any further comments or questions. No one responded, so he made a motion to deny Forner's application for appeal based upon the applicable code provisions. The Commission panelists voted, and the motion passed by a two-thirds majority vote in compliance with MCL 125.1516(1). We conclude that Forner received a meaningful opportunity to be heard.
Forner next argues that his due-process rights were violated because the Commission deprived him of a fair and unbiased panel by having a three-person panel comprised of two construction code officials, one of whom served as a full-time inspector. Forner contends that inspectors who serve as full-time code enforcement officials can never be fair and impartial in disputes involving the construction code. He also argues that his due-process rights were violated because the panelist may have discussed a provision of the 2015 Michigan Residential Code before conducting the hearing on his appeal.
Forner failed to preserve these claims of error. Consequently, our review is discretionary. See Walters v Nadell, 481 Mich 377, 387-388; 751 NW2d 431 (2008); see also Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich App 364, 377-378; 761 NW2d 353 (2008). We do not believe exceptional circumstances are present in this matter that would warrant review. See Booth v Univ of Mich Bd of Regents, 444 Mich 211, 234 n 23; 507 NW2d 422 (1993). Nevertheless, we observe that in Crampton v Dep't of State, 395 Mich 347; 235 NW2d 352 (1975), a member of the plaintiff's License Appeal Board was a Lansing Police officer who would be called upon to adjudicate a decision by a fellow Lansing Police officer, which our Supreme Court found to be a violation of the plaintiff's due process rights due to an unacceptable risk of partiality. However, merely being a member of the same profession, which is the only bias alleged here, does not implicate the same risk, in the absence of a pecuniary interest or prior actual involvement in the specific matter. See Morris v Metriykool, 418 Mich 423; 344 NW2d 736 (1984) and Monroe v State Employees' Retirement Sys, 293 Mich App 594; 809 NW2d 453 (2011). Additionally, we cannot comprehend how any prior discussion of the code by the panel, if any such discussion even occurred, prejudiced him; nor does Forner provide any authority explaining such a claim. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Forner also argues that the Commission committed plain legal error because the 2015 Michigan Residential Code does not require sealing of cold air returns. We disagree.
The Michigan Constitution governs an administrative agency's conduct. Const 1963, art 6, § 28 provides:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
The scope of this Court's review of an administrative agency's decision is set forth in §106 of the Administrative Procedures Act, which states as follows:
(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a party.
(d) Not supported by competent, material and substantial evidence on the whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
(f) Affected by other substantial and material error of law.
(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings. [MCL 24.306.]
In Brang, 320 Mich App at 661, this Court explained the principles of construction for interpretation of administrative rules as follows:
Just as with statutes, the foremost rule in construing an administrative rule, and our primary task, is to discern and give effect to the administrative agency's intent. This Court begins with an examination of the language of the administrative rule, which provides the most reliable evidence of the agency's intent, and if the language is unambiguous, the rule must be enforced as written without any further judicial construction. We may go beyond the words of the administrative rule to ascertain the agency's intent only when the rule is ambiguous. This Court must give effect to every clause, phrase, and word in an administrative rule and avoid a construction that would render any part of the rule surplusage or nugatory. When the rule is ambiguous, we generally defer to the construction of an administrative rule given by the agency charged with administration of the rule; however, this deference does not mean that a reviewing court abandons its ultimate responsibility to give meaning to administrative rules. Deference is not afforded to the agency's interpretation of a rule when the rule is
unambiguous or when the agency's interpretation is clearly wrong. [Quotation marks and citations omitted.]
In Guardian Environmental Servs, Inc v Bureau of Constr Codes, 279 Mich App 1, 6; 755 NW2d 556 (2008), this Court stated:
In the absence of fraud, findings of fact made or adopted by an administrative agency are conclusive on appeal if they are supported by competent evidence on the record; however, the decision of an administrative agency may be reversed if the agency's decision was based on erroneous legal reasoning or if the agency operated within the wrong legal framework. [Citation omitted.]
The 2015 Michigan Residential Code provides in Chapter 11 N1103.2 that "[d]ucts and air handlers shall be in accordance with Sections N1103.2.1 through N1103.2.3." R201 and R202 define a "duct system" as:
A continuous passageway for the transmission of air that, in addition to ducts, includes duct fittings, dampers, plenums, fans and accessory air-handling equipment and appliances.A "plenum" is defined as a "chamber that forms part of an air-circulation system other than the occupied space being conditioned." The term "cold air return" is not separately defined. N1103.2.1 in relevant part provides:
All portions of the air distribution system shall be installed in accordance with section M1601 . . .
N103.2.2 requires mandatory sealing of ducts as follows:
Ducts, air handlers, and filter boxes shall be sealed. Joints and seams shall comply with either the International Mechanical Code or International Residential Code, as applicable.
Chapter 16 of the 2015 Michigan Residential Code governs duct systems. M1601.1.1 provides in relevant part as follows:
Above-ground duct systems shall conform to the following:
7. Stud wall cavities and the spaces between solid floor joists to be used as air plenums shall comply with the following conditions:
* * *
7.3 Stud wall cavities shall not convey air from more than one floor level.
7.4 Stud wall cavities and joist-space plenums shall be isolated from adjacent concealed spaces by tight-fitting fireblocking in accordance with Section R602.8.
M1601.4.5 requires that all duct installations must be fireblocked in accordance with R602.8 which provides that fireblocking shall be provided in accordance with R302.11. R302.11 provides:
In combustible construction, fireblocking shall be provided to cut off both vertical and horizontal concealed draft openings and to form an effective fire barrier between stories, and between a top story and the roof space.
Fireblocking shall be provided in wood-framed construction in the following locations:
1. In concealed spaces of stud walls and partitions, including furred spaces and parallel rows of studs or staggered studs, as follows:
1.1. Vertically at the ceiling and floor levels.
1.2. Horizontally at intervals not exceeding 10 feet (3048 mm).
* * *
4. At openings around vents, pipes, ducts, cables and wires at ceiling and floor level, with an approved material to resist the free passage of flame and products of combustion. The material filling this annular space shall not be required to meet the ASTM E136 requirements.
Read together, N1103.2, N1103.2.1, M1601.1.1, R602.8, and R302.11 require sealing of cold air return ducts. The language of these provisions lack ambiguity, and they all cover the same subject. We conclude that the Commission's interpretation of the 2015 Michigan Residential Code regarding sealing of cold air returns was not based on erroneous legal reasoning or derived from the wrong legal framework. The Commission panel relied upon applicable provisions of the 2015 Michigan Residential Code, and the Commission appropriately based its final decision on the same interpretation of the construction code. Accordingly, the Commission did not commit reversible error.
Forner also argues that the Commission violated MCL 125.1516(1) by not conducting the hearing on Forner's appeal within the 30-day time limit and by failing to send him a copy of its decision within five business days of its decision. Forner, however, failed to preserve these claims of error. Even presuming the Commission did violate MCL 125.1516(1), we would appreciate Forner's frustration, but we would not find he has shown such a technical violation to have prejudiced his substantial due process rights. Therefore, we do not find that exceptional circumstances in this case warrant review of these claims of error. Accordingly, we decline to review them.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Elizabeth L. Gleicher
/s/ Anica Letica