FILED Received for Filing Oakland County Clerk 5/7/2020 9:10 AM STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND CITY OF MADISON HEIGHTS, Plaintiff, v. Case No: 18-169728-CZ Hon. Hala Jarbou GARY A. SAYERS, ELECTRO-PLATING SERVICES INC, SAYERS VENTURES LIMITED PARTNERSHIP, SAYERS ENTERPRISES LLC, SAYERS ENTERPRISES III LLC, and JOHN DOE Company, companies or entities, Defendants. / OPINION AND ORDER BACKGROUND This case concerns property in Madison Heights that is owned by Defendant Gary Sayers. Specifically, the three buildings at issue are located at the addresses of 901, 925, and 945/959 E. 10 Mile Road. For ease, the buildings will be referred to by their address numbers throughout this opinion. There was another building located at 937 E. 10 Mile Road, but it was demolished several years ago and only the foundation slab remains. 901 is actually three connected buildings, referred to as 901A, B, and C. 901 and 925 are smaller buildings than 945/959. The slab that used to be 937 sits directly to the south of 945/959 and separates that building from 925 and 901 respectively. 945/959 is the largest of the buildings and is a multi-level structure which used to be two separate buildings untilthe interior dividing wall was removed. For ease, that building will hereafter be referred to as 945. All the buildings are fifty to seventy years old Defendant Sayers operated an electroplating business in the buildings from sometime prior to 1996 to December 21, 2016, when the Michigan Department of Environmental Quality (MDEQ, now known as EGLE) issued an order for Defendants to cease and desist operations. * Plaintiff City of Madison Heights filed this suit on the heels of a lengthy history of attempting to gain Defendant Sayers’ compliance with local ordinances and environmental regulations, including a time-critical EPA removal action. Plaintiff requests that this Court declare the properties to be a public nuisance and order the abatement of buildings 901, 925, and 945 by demolition, and further order that Defendant Sayers is responsible for the cost of abatement. FINDINGS OF FACT The Court heard testimony from thirteen witnesses and was presented with much evidence over the course of this lengthy bench trial. What follows is a recitation of the relevant testimony and evidence. 1 Witnesses a. Kelly Thomas Mr. Thomas was employed as an environmental scientist for Tetra Tech from 2014 to 2019, and he managed environmental remediation projects? Tetra Tech was contracted by the Environmental Protections Agency (EPA) to perform air monitoring, soil * Plaintiff Exhibit 17: Cease and Desist Order. 2 Tr. Trans. Vol |, pgs 41-43.sampling, and emergency contingency actions at 945 from April 2017 to December 2017.2 In his role with Tetra Tech, Mr. Thomas was responsible for providing oversight of the contractor that was tasked with removing the hazardous chemicals on the properties.4 Mr. Thomas set up contamination reduction procedures for the disposal contractors to ensure they would not be exposed to contamination from the chemicals.® Mr. Thomas oversaw the sampling, staging, and inventory of approximately 5,000 drums and containers of chemicals stored on the properties.® Near the end of his work at the Sayers properties, Mr. Thomas authored a report to the EPA concerning the work performed on the properties and the results of testing and sampling done in and around the buildings.” The report detailed the location and history of the properties, removal of chemicals and hazardous waste, monitoring of removal actions, and the effectiveness of removal actions.® Mr. Thomas stressed that the actions taken at that time were not remediation measures, but rather were time critical removal actions designed to triage the immediate threat to health.? Mr. Thomas oversaw the draining of the two pits in the basement level of 945.°° One pit was cement-lined and held cyanide."' The other pit was an earthen pit that held hexavalent chromium."? Mr. Thomas confirmed that both of those chemicals are hazardous to human health and were present in amounts above toxicity criteria."9 After 3 Id, at 45-46. 41d, at 47-51 5a. ® id. at 52, 7 Plaintif Exhibit 22: January 25, 2018, TetraTech Report. a. 2 Id, at 7-78. 10d, at 76-79, 94. nid id, id. at 79,the pits were drained, they were filled in with crushed conerete gravel to prevent them from filling back in with rainwater or other liquids, but Mr. Thomas stated that it was likely impossible to collect every drop of hexavalent chromium." Mr. Thomas also testified that Tetra Tech conducted four soil borings just outside of building 945: two to the north and two to the west." The borings outside of the north side of the building contained hexavalent chromium in concentrations that exceeded the screening levels."® He testified that hexavalent chromium is the more toxic state of chromium and it is a danger to human health.” Mr. Thomas also testified that the concentrations of hexavalent chromium in the soil borings was above toxicity levels of five milligrams per liter, and other metals and chemicals were above toxicity levels as well." Mr. Thomas stated that it was possible for hexavalent chromium to remain in the ground for years or decades.'® Mr. Thomas also confirmed that the removal actions were ‘successful in removing the immediate risk to public health and environmental safety 2° Mr. Thomas also testified as to the state of building 945, but other witnesses testified in greater detail regarding the most recent state of the building because Mr. Thomas was only on the site until the end of 2017 b. Jeffrey Lippert Mr. Lippert worked for the EPA during 2017 and 2018 as an On-Scene Coordinator.?' He earned a Bachelor of Science degree from Central Michigan University id, at 80-82 °S Plaintiff Exhibit 25: Soll Sample Locations map id. ©” Tr, Trans. Vol |, pg 67. 1 id, at 66-68, 85-87 id. at 111 2 id. at 112-113 2d. at 119,with a double-major in biology and environmental science.2? In his role as an On-Scene Coordinator, Mr. Lippert coordinated emergency responses and time-critical removals to spills and chemical releases. Mr. Lippert mirrored Mr. Thomas’ testimony in stating that the chemicals stored in the buildings were dangerous to human health and public safety.2* He testified that Defendant Sayers did not have a permit to store the hazardous waste present in 945.25 The chemicals were tested by a field chemist.> He testified that some samples of chemicals tested positive for reactivity which he said meant that they could initiate a violent reaction when combined with another chemical.2” Some of these incompatible chemicals were stored in close proximity to each other.2° Mr. Lippert testified that even though the imminent and substantial danger was ended by removal of the stored chemicals in the barrels and pits, it did not mean that all risks were mitigated.2° Mr. Lippert opined that based on his experience he would expect to find contamination still present under building 945.°° Mr. Lippert testified that they used crushed concrete at the suggestion of a contractor to fill he pits in the basement because the lack of space in 945 prevented them from pouring liquid concrete.** 2 Id, 120. Bid. 2 id, at 136-138, 2 id, at 134, 2 id, at 139-142. 2d, 2 id. 29 fd, at 155, id. at 156-157, 165, 3 Id, at 160, 193.c. Tracy Kecskemeti Ms. Kecskemeti is employed as a district supervisor of Michigan's department of Environment, Great Lakes & Energy (EGLE).°2 She supervises approximately thirteen employees and is involved in the disposal and fil of hazardous waste.°> Ms. Kacskemeti earned her bachelor's degree from the University of Michigan, and her master's degree in environmental science from the University of Michigan- Dearborn. Ms. Kacskemeti testified that the release of “green ooze" onto 1-696 was reported to EGLE on December 20, 2019.% She testified that the “green ooze” contained hexavalent chromium, trichloroethylene, and cyanide, and all of those chemicals are waste byproducts of electroplating processes.% She opined that the release onto |-696 likely originated from the pits in the basement of building 945 as the release site was directly north and downgrade of building 945.°” There is also a groundwater well immediately north of the building that tested positive for hexavalent chromium.%* Ms. Kacskemeti opined that rainwater seeped into the earthen pit that stored hexavalent chromium, and it seeped through the walls and onto |-696.*° She confirmed that a portion of |-696 was closed as a result of the leak.*° She also testified that the leaking water they tested in the service drive catch basins found 330 milligrams/liter of hexavalent chromium 2 id, at 213-214, id, id, at 214-215, 89 id, at 217. © id, at 218-220. 5 Id, at 222-223, id. id. 40 (d, at 226-227,which far exceeds the standard of 5 milligramsiliter.*' To contain the leak, Ms, Kacskemeti testified that the EPA dug up the service drive to the north of 945 and constructed a 20- foot by 20-foot pit that runs 40 to 60 feet down the service drive. She testified that these are only temporary measures." Ms. Kacskemeti testified that hexavalent chromium, nickel, cyanide, and trichloroethylene were all present in 945. She stated that all of those chemicals are classified as hazardous waste under state and federal law and are dangerous to human health.* Ms. Kacskemeti testified that preliminary results of soil boring performed after the release onto |-696 show contamination on all sides of building 945.4 Samples were also taken further west, near 901 and 925, but those results have not been returned yet.“ She also stated that the building itself, including the pit and concrete walls, are contaminated. *® She testified that the soil under the building would need to be removed to fully remediate the contamination problem.*7 She opined that building 945 would need to be demolished to access the soil for removal.‘® She stated that if the soil was not removed, the water would need to be indefinitely pumped from the pit. She testified that the contamination has spread from 945.49 She estimated that hexavalent chromium has been in the building for over twenty years, and the soil under the building has been in contact with hexavalent chromium since 4 id, at 228-229 42 id. at 229-230. id, at 218-220 id. at 233-234. id, at 234 #6 id, at 237 4 Id, at 240-243 eid 11d,the 1990s.5° Ms. Kacskemeti also testified that Defendant Sayers told her that he dug the earthen pit $1 d. Kory Groetsch Mr. Groetsch is the director of Environmental Services in the Michigan Department of Health and Human Services (HHS).* He was the acting director in 2016 but performed the same duties.5° Mr. Groetsch confirmed that the chemicals that were stored in the buildings were dangerous to human health. He also testified that HHS received a request for a hazardous assessment from MDEQ in 2016 for building 945.5° He determined that the storage of chemicals in that building was an imminent and substantial hazard requiring immediate action, and he referred the situation to the EPA for its removal program. e. Alexandra Clark Ms. Clark is the enforcement section manager for EGLE.‘” She has a Bachelor of Science degree in environmental science and policy from Michigan State University.5* She testified that Defendant Sayers’ storage of chemicals exceeded legal limits.5° Ms. Clark testified that the cease and desist order was issued to stop continued use of hazardous chemicals, generation of hazardous waste, and to secure the building. She © id, at 249-250. 5 id. at 283. 2Tr, Trans, Vol ll, pgs 7-8 Sid % id. at 13-18, 35-36. id. at 9 © id. at 9-10. 57 id. at 48-49, 5 id. at $0-51 © Id, at 82-53, 78. id. at §5-59testified that the land needs to be remediated.*' She stated that in order to remediate the land, the soil may need to be dug up and hauled away.°2 Ms. Clark testified that the current state of the soil can be a danger to the health, welfare, and safety of the general public unless remediation occurs.® She also stated her opinion that the origin of the release onto 1-696 was the earthen pit in the basement of building 945. Ms. Clark also stated that building 945 is stil unsafe due to the condition of the building and the contamination of the building materials.®° She opined that building 945 needs to be demolished to properly remediate that site.® She did not have an opinion as to buildings 901 and 925, but she stated that samples taken around those buildings show contamination in the groundwater around them.®” f. Daljit Benipal Mr. Benipal is an expert in structural engineering hired by Plaintiff to examine buildings 901, 925, and 945. Mr. Benipal earned his bachelor’s degree in civil engineering from Punjab University in India.®® He earned his master's degree in structural engineering from City University in London, England.** Mr. Benipal currently works for Safebuit Inc., as a structural engineer.” He was qualified as an expert by this Court.” Id at 88, eid. id. & id, at 91-92 6 id. at 98-99. & Id, at 100. 6 id, at 100-101 69 /d, at 186-188. Id. 70 jd, at 194-195. Nd,Mr. Benipal opined on all the buildings at issue. He inspected all the buildings on October 4, 2019.” Concerning building 945, he confirmed from his observation that the building was originally two buildings but was combined into one.’ He stated that 945's interior has two levels with a mezzanine level on the 959 side of the building,” He opined that the building has quite a few structural issues including bad rusting of the structural steel members which means the structural steel has lost strength, lack of handrails and guard rails on raised levels, and some of the structural steel girders had been cut which may have affected the lateral stabilization system and load-bearing capabilities of the building.’> He also stated that it did not appear to him that the building was built for electroplating activity, because there was no coating protecting the structural steel from rust.’6 Mr. Benipal noted that on visual inspection of the exterior, the building is noticeably leaning towards the west.”? He believes this is due to failure of the load adjustment system.7® He opined that the building is not stable as a whole.’? Mr. Benipal noted that the building should be built to withstand a 90 mile per hour wind, but he believes there is a risk of it collapsing in high wind or seismic activity, which it should normally withstand.®° Mr. Benipal opined on building 901. He stated that it was a single-story building in three parts: A, B, and C." He saw a hole in the wall between 901C and 925.*? He believes id, at 195, 7 id, at 197-199. 7d. "8 id, at 200-203 78 id, at 204-205, "id, at 202, id. 79 id, at 206-209, £0 id, at 208-207 8 id. at 211. id. 10it was a door opening that was later widened and that the hole could affect the structural integrity of the wall.? The roof deck was absent at one side of 901C so there was no support for the roof in that area. He stated that the wall was no longer braced in that spot by the roof because of the holes in the roof, so the wall was only braced at the foundation.®° He observed holes in the roof that allowed rain and snow into the building.®° Mr. Benipal opined that continued exposure to water through the holes in the roof affected the integrity of the soil support and has caused the foundation to settle.” He observed cracks in the walls.®* Mr. Benipal opined that 901C needs to be demolished. Mr. Benipal opined that 901B was generally in good shape with some cracks in the walls and the floor slab. He stated that further investigation was needed but 9018 could be saved. Mr. Benipal observed a large hole in the roof of 901A.°" He observed the roof is a wood roof structure supported on steel beams, and the steel beams are rusted.%? He opined that the rust on the steel beams causes them to lose strength.% He observed cracks in the wall and slab.®* 901A is in similar shape to 901C.* Mr. Benipal opined that 901A needs to be demolished.% 9 id, at 211-212. 8 id, at 214. 8 id. at 214. 5 id, at 215-216 id. £8 fd, at 216-217, £8 jd, at 217. 0 ia. 8 id, at 217-218. id. id, at 217-219, id at 219, id. 0 id. 1Mr. Benipal also inspected 925. He observed that the roof structure was comprised of a system of steel joists supporting metal roof decking.®” He observed that some of the joists were twisted, and there were some cracks in the cinder-block wall.°° Mr. Benipal opined that the building is overall pretty stable and it could be saved with some rehab. Mr. Benipal stated that there was no way to test the strength of the rusted member, particularly as it concerned the rusted beams in 945," He also stated that he was not aware how much of a load 945 supported three years ago, prior to the removal actions performed by the EPA."°! He did agree with Defendant that a lighter load makes the building safer.'°2 Mr. Benipal also agreed with Defendant that any of the buildings could be saved, but the feasibility was a matter of cost." g. Frank Haywood Mr. Haywood has been employed by Safebuilt for over nine years. He was contracted as the building official for the City of Madison Heights from the beginning of 2016 until sometime around June 2018." Mr. Haywood eared his bachelor's degree in construction management from Eastern Michigan University. He is a licensed building official in the State of Michigan.*°” ® Id, at 220. 8 id, at 220-221 id. “00 jd, at 228-229. 101 jd, at 231-237, 102 1d, 102 Jd, at 242. 104 fd, at 244-245, 108 fd, at 245-246. 108 fd, at 247, 107 jd, at 249. 12Mr. Haywood first inspected building 945 on December 21, 2016 and inspected it once again on January 3, 2018."°° During his second inspection, Mr. Haywood took pictures of the building. °? He presented those pictures during his testimony and testified that the pictures represent numerous violations of fire, building, occupancy, and electrical codes.""? Mr. Haywood testified that the condition of 945 has not changed since his inspection on January 3, 2018.'"' He stated that the conditions he observed were dangerous and unsafe. 1? On cross examination, Mr. Haywood was shown a letter he mailed to Defendant Sayers on December 22, 2016."'° That letter stated that 945 was being condemned by the city for code violations, and Defendant must vacate, repair, or demolish the building within 14 days." That letter was posted onto 945.1'5 h. Tim Gardner Mr. Gardner works for Safebuilt and took over for Mr. Haywood as the Madison Heights building official in April 2018.""° He remains in that position.‘"” Mr. Gardner is a licensed building contractor in the State of Michigan.‘® 108 Jd, at 266. a 1° Plaintif Exhibit 31: Pictures from Frank Haywood's inspection of Building 945. sg mg, 2 Tr, Trans. Vol Ill, pg 18, 41g, at 19. 15 fd. at 19-20, 18 dat 76-77. "Tid, at 77, 181d, at 78-79, 13He testified that he has visited and inspected 901, 925, and 945 several times, but has not written a report of those inspections." Mr. Gardner testified that when a building is condemned it means that it is dangerous and unsafe for human occupancy. 120 During his testimony, Mr. Gardner presented pictures of buildings 901 and 925 that he took during an inspection.'2" Mr. Gardner testified the following conditions existed in 901: debris and industrial equipment was piled up everywhere; paint was peeling and may need to be tested for lead due to its age; a mold-like substance was visible on parts of the ceiling; the ceiling had holes and was falling in some spots; electrical junction and breaker/fuse boxes were open with flammable materials nearby; the holes in the roof presented a fire hazard because water entering there could cause arcing from the exposed electrical; and there was a manually created hole in the wall of 901 with a corresponding hole in the wall of the adjacent 925 building.” Mr. Gardner also testified that exposure to the elements from rain and snow entering could weaken the frost footings of the structure. ‘29 Mr. Gardner testified that he believes 901C should be demolished.’ He also testified that 901B is not in as bad condition as 901C and 901A. "5 He stated that a lot of the debris shown in the pictures has since been removed from 901."° He believes that 901A should also be demolished because the cost of repair would likely exceed the state equalized value." "19 Id, at 80. 120 Id, at 82. 121 Plaintiff Exhibit 29: January 2019 inspection photographs. °F Trans Voll, pos 106-107 124 Id, at 110-111 51d, at 12. 128 id, at 114, 12 Id, at 115. 14Concerning 925, Mr. Gardner testified that there was some equipment and debris inside.‘?° He testified that it would take approximately three to six months to repair the building after plans and permits were approved. 2° Mr. Gardner confirmed on cross examination that all of the buildings were condemned by the city on December 21, and 22, 2016.'%° He agreed that he does not have any knowledge of whether there is chemical contamination in 901 or 925."3' i. Ronald Almas Mr. Almas was the Deputy Director of Public Services for Madison Heights from November 2014 until July 2019."%2 In that role he was the supervisor of streets and facilities. He testified that Madison Heights has both combined storm and sanitary sewers and separate sewers in different locations. '% He stated that the sewers around building 945 are separate storm and sanitary sewer systems." Mr. Almas testified that the sanitary sewer system main in that area is a concrete pipe and that 945 has two cleanouts that connect to the sanitary sewer main." A video recording of a camera scope of the sanitary sewer main around the buildings was played during Mr. Almas’ testimony. 6 Mr. Almas testified that the lead from demolished building 937 shows evidence of severe corrosion."°’ He also testified that the leads from the sewer cleanouts in 945 showed green staining and corrosion."%* Mr. Almas testified that the 128 fd, at 120-121 129 dat 131-132. '80 Tr. Trans. Vol IV, pg 41. 181 fd. at 102-103. "82 Tr, Trans Vol VI, pgs 13-16. 188 fd, at 17-21 198 fg 185 Plaintiff Exhibit 22: Tetra Tech report, pictures 39, 40, and 42, showing the cleanouts. 196 Plaintiff Exhibit 30: Sanitary Sewer Scope video. *8" Tr. Trans. Vol VI, pgs 37-38. 188 Jd, at 34. 15green color was the same color as the substance that leaked onto |-696."%° However, Mr. Almas did not indicate that the stained walls in the sewer were tested or whether the same chemicals did cause the staining and corrosion. "#9 Mr. Almas testified that the corrosion of the sewer observed in the video should not have happened normally. **" He stated that the EPA intends to repair the damaged sanitary sewer that was show in the video. “# He said that part of that repair would require excavating soil to get to the sewer line.“ Mr. Almas also testified that the chemicals that spilled onto 1-696 would enter the storm sewer system, if not caught before, and end up in Lake St. Claire." j. Melba Kastelic Ms. Kastelic has been employed by Madison Heights as an accountant and assessing liaison since 2011.45 She testified that in aggregate the properties at issue are in arrears on taxes of approximately $35,000. "“° She also testified to the state equalized or taxable value of the properties."4” k. Angela Randazzo Ms. Randazzo has been employed by Madison Heights as a code enforcement officer for approximately eighteen years." She testified concerning the code enforcement measures taken by the city.“ Ms. Randazzo testified that when a citation was issued for a code violation, Defendant Sayers would usually comply for about two 180 fd, at 36. 0 Tr. Trans. Vol VI, Pg. 54. "1 Id, at 36-37. 2 jd, at 47. 3 fd. at 50. 441d, at 20. 45 Jd, at 65-6. 46 fd, at 66-84. rid, 8 Jd, at 101-102. 49 Jd, at 102-108. 16weeks but would retum to the previous activities giving rise to the code violation. 1° She had no knowledge of any of the interior issues in the buildings. ** |. Gregory Lelito Mr. Lelito has served as Madison Height’s Fire Chief since 2012."® He testified that his first contact with the subject properties and Defendant Sayers was in May 2016."5° He testified that he was driving on the service drive adjacent to the buildings’ north sides, when he noticed that there was no overhead door on 945 and the opening was instead covered with plastic." He stated that he observed plastic storage totes outside of the north walls. 8° He testified that he drove around to the front of 945 and could see plastic bins and metal barrels inside along with lots of debris. ° From this observation, Chief Lelito and Fire Marshall Knight decided to perform annual inspections of the properties. "57 The first inspection occurred on May 11, 2016."®° Chief Lelito and Fire Marshall Knight obtained permission to inspect 945 from Defendant Sayers. '*? Chief Lelito testified that he observed lots of debris outside of the buildings and he observed containers all throughout the building upon entering. ®° He testified that Defendant Sayers admitted that hazardous waste was stored in the building."®' Chief Lelito observed corroded steel beams and holes in the roof with water present on the lower level, as well as the earthen 101d, ‘tid, at 114 °82 Tr, Trans. Vol VII, pg 3. 183 Jo, at 15-17, 184 Ig, 155 1g 186 fd, 571g, 180 fd, at 19. 19 fd, 182 jg, at 19-20. 10 fd, at 19-21 7pit."®2 Chief Lelito contacted Mr. Haywood to come out to inspect the property." Chief Lelito testified that he provided Defendant Sayers with a list of fire code violations. Chief Lelito testified that despite initial progress in fixing the code violations, no hazardous waste had been removed when Chief Lelito returned to the properties with Ms. Clark from MDEQ/EGLE."® Chief Lelito testified that he placed a notice of non-occupancy on the properties on December 20, 2016." Chief Lelito next visited the property in January 2018, after the EPA’s removal actions were complete. "®” He testified that during that walk-through, he observed debris, open electrical panels, extension cords used for lighting, and propane heating, which were all code violations. ®* He also testified that the beams remained in poor condition due to rust and that there were holes in the roof. '®° He stated that the condition was largely the same as in 2016, except for the removal of the chemicals and additional debris present."7° His last inspection was in November 2019.‘”' He observed that the conditions were stil the same, and more equipment debris seemed to be in 945.'72 He also inspected 901 and 925 in January 2019 and provided a list of code violations to Defendant Sayers as a result of those inspections. 173 Id. at 22-26. 183 jd, at 27 "4 id, at 27-29; Plaintiff Exhibit 32: List of Code Violations from May 11. 2016 inspection. "5 Tr. Trans. Vol VII, pas 38-43. 186 jd. at 41 "6rd, at 54 168 fd, at 51-54, 108 ig WH, 17 Id, at 54 1 fd, at 54-57. +7 Plaintif t Exhibits 33 and 34: Code Violations for 901 and 925. 18Concerning all the code violations listed by the fire department, Chief Lelito testified that it could all be fixed without razing the buildings." m, Lawrence Mangindin Mr. Mangindin was Defendants’ sole witness. Mr. Mangindin eared a bachelor's degree in civil engineering from California Polytechnic University. 175 He is a registered professional engineer in fifteen states including Michigan.” Mr. Mangindin was qualified as an expert by this Court."”” Mr. Mangindin was hired by Defendant Sayers to perform a structural assessment of the buildings and building 945 in particular. "78 Mr. Mangindin testified that the exterior walls of 945 are primarily concrete masonry construction, and the roof is comprised of bar joists bearing on the exterior walls with metal decking tying everything together."”? The mezzanine inside the building is made from steel frame and decking. ®° Mr. Mangindin testified that there are some issues with the building where some of the beams may have deteriorated and rusted, but he opined that the overall structure is still sound."® He stated that there are a few defects that need to be fixed — primarily the steel plates on the floor of the mezzanine which have been corroded. "®? He observed no signs of bowing, settlement, or cracking in the exterior walls. He opined that the main steel framing is still intact and can still provide lateral 174 fd, at 107-108. "5 Tr. Tans. Vol VIll, pgs 19-20. 118 ig 7 fd, at 24 W810, at 22. 8 id, at 24 100 a, 181 dat 26 182 dat 25-26. 189 Jd, at 26-27, 19support for the building. '@4 While there are openings that can allow the elements to enter, he believes those openings have since been boarded. "> Mr. Mangindin also walked through 901 and 925. He opined that although there are openings in the roofs, the overall structural integrity of the buildings is sound."® He stated that the holes in walls of 901C and 925 are not meant to be long-term, but the rest of the wall maintains its integrity.'8” He did not recall any vertical cracking that would indicate foundation settlement." On cross examination, Mr. Mangindin stated that he does not dispute any findings of the EPA and MDEQ/EGLE conceming contamination of the properties."® He also stated that he cannot speculate as to what remediation measures would be necessary and did not account for contamination in his assessment.1% APPLICABLE LAW To establish a public nuisance a plaintiff must show that conditions or actions unreasonably interfere with a common right enjoyed by the general public. Capito! Properties Group LLC v 1247 Ctr Street LLC, 283 Mich App 422, 427-428; 770 NW2d 105 (2009). Unreasonable interference is defined as conduct that: 1. significantly interferes with the public’s health, safety, peace, comfort, or convenience; 2. is proscribed by law; or, 3. is known or should be known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. Id, "84 Jd, at 25-26. 188 fd, 186 Jd, at 26-29. 187 fd, 182 fd, 189 Ig, at 31-33, 190 fd, at 33. 20Violations of ordinances alone are not enough to establish nuisance — it must be proven that the actions or conditions described in the ordinance violations constitute a nuisance. Ypsilanti Charter Twp v Kircher, 281 Mich App 251, 277-278; 761 NW2d 761 (2008). A nuisance per se is “an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.” /d. at 269 n 4. “Nuisance-abatement proceedings brought in the circuit court are generally equitable in nature.” Ypsilanti, supra at 270. Once a public nuisance is proven, the Court has the authority under MCL 600.2940 to order abatement and grant injunctions as needed Judging the credibility of witnesses during a bench trial is within the discretion of the trial court. MCR 2.613(C), Howard v Lud, 119 Mich App 55, 59-60; 325 NW2d 623 (1982). DISCUSSION Plaintiff spent significant time over the course of the bench trial establishing the existence of numerous code and city ordinance violations in buildings 901, 925, and 945 Plaintiff references violations of Madison Heights Code of Ordinances §6-178 — Unlawful to keep or maintain a dangerous or unsafe building, and §6-178 — Definition of dangerous or unsafe building, and specifically subsections 6-178(1), (2), (3), (4), (6), (7), (9), (10), (11), (12), and (13).1%" + Plaintiff Exhibit 28: Madison Heights, MI Code of Ordinances, 2This Court will not quote the ordinances here due to their length, and such recitation would be fruitless because even if those ordinances and other codes were violated that does not establish that the buildings are public nuisances. Madison Heights Code of Ordinances §§ 6-180 and 6-181 provides for the demolition of dangerous and unsafe buildings after notice is given and a hearing is conducted. Although testimony was presented that a hearing occurred, demolition of the buildings did not occur as a result The Madison Heights ordinances are similar in some respects to the ordinance at issue in Bonner v City of Brighton, 495 Mich 209; 848 NW2d 380 (2014). In that case, the defendant, City of Brighton, ordered that the plaintiff's house be demolished pursuant to an ordinance which provided that if the cost to repair an unsafe structure exceeds 100 percent of its true cash value, the structure is considered a nuisance and may be demolished without an option to repair. /d. at 215. The plaintiff filed suit to stop the demolition, arguing that that statute violated his due process rights because it denied him the option to repair the house. /d. at 213-214. The Court upheld the constitutionalty of the ordinance, finding that the ordinance merely created a rebuttable presumption that an unsafe structure is a nuisance and the presumption could be challenged at a hearing. /d. at 228-229. The Court found that the inclusion of the hearing provision met minimum due process standards, and thus, the decision to provide for demolition instead of providing repair rights was a policy judgment. Id, at 230 Part of Plaintiff's argument in this case rests on the fact that Defendant was in violation of numerous city codes and ordinances for a substantial length of time. While those purported violations may constitute an unsafe or dangerous building under the 22ordinances, the violations do not make a building a public nuisance. Proving that ordinances were violated or that the buildings meet the definition of “dangerous or unsafe” under the ordinance does not satisfy Plaintiff's burden to show that a public nuisance exists. Plaintiff is required to show that the conditions or actions underlying the violations rise to the level of public nuisance. Ypsilanti, supra at 277-278. Thus, the proper focus is not on the per se violations, but rather on the character of the conditions underlying the violations as well as structural and environmental evidence presented. Due to the volume of testimony elicited at trial, each building will be considered in turn, 945/959 Building 945 is the largest of the three buildings and it was the focus of the EPA's removal efforts. This building has paramount significance in this litigation due to the extensive use and storage of chemicals within it, including hexavalent chromium and cyanide, and the allegation that contamination leeching from the earthen pit was the source of the leak onto |-696. The parties generally do not dispute that numerous code and ordinance violations exist in 945. Testimony from Frank Haywood, Tim Gardner, and Fire Chief Lelito established violations of the electrical code, fire code, building code, and unpermitted renovations. The allegedly dangerous conditions include improperly connected electrical and open electrical boxes, lack of a fire suppression system, expired fire extinguishers, improperly constructed stairs, missing handrails and guardrails, debris piled up in front of exits, and missing flooring on the second floor and mezzanine levels. 23Testimony reveals that many of these code violations are repairable. Chief Lelito testified that after his initial visit in May 2016, Defendant Sayers had made some progress in fixing some of the code violations that were pointed out to him.'®? However, Plaintiff argues that this fits the pattern of prior attempted enforcement, as explained by Ms. Randazzo, where Defendant Sayers would comply for a short period of time and then lapse into noncompliance. Were the issues in building 945 merely correctible code violations this Court would likely find an injunction preventing use until the building is brought to code to be the most suitable remedy. Testimony, however, revealed that there are significant structural and environmental concems in and around 945 that must be addressed Plaintiff and Defendants each presented opinions of experts in structural engineering. Mr. Benipal testified that almost all of the structural steel was rusted and deteriorating. Mr. Mangindin agreed that at least some of the structural steel was rusted, but he believed that it could still serve its purpose in supporting the structure. Mr. Benipal testified that the cut structural steel members may affect the lateral support system of the building, and he believes the westward leaning of the building that he observed is evidence of the support system failing. Mr. Mangindin did not directly opine on whether the building was leaning, but he said that the cement masonry unit walls were intact, and he believed the structural stee! could still support the load of the building Both experts admitted that they could not assess any environmental impact on the structural integrity of the building other than any observable effects any chemicals or contamination may have created. Ms. Kacskemeti testified that not only are the materials 1 Tr, Tans. Vol Vil, pg. 43. 24in the building contaminated, but the soil and groundwater around 945 are also contaminated. She testified that the contamination has spread as evidenced by the December 2019 leak onto |-696. To properly remediate the soil around the building, Ms. Kacskemeti testified that 945 would need to be demolished so that the soil could be dug up and hauled away. She also stated that if the building was demolished, the materials would need to be disposed of because those materials are contaminated itis apparent to this Court from the testimony presented, that the contamination of the ground under and around building 945 requires remediation. The chemicals contaminating the ground, including hexavalent chromium, cyanide, and trichloroethylene, are hazardous to human health. Moreover, the leak onto I-696 shows that the contamination unreasonably interferes with the public’s health, safety, and convenience, as it has forced the closure of part of a freeway and service drive. While potential exposure to the public has been mitigated to an extent, it has only been so mitigated at the cost of digging large trenches in the service drive and other containment measures around the freeway catch basins. The testimony is clear that the likely origin point of the leak are the chemicals which used to be in the earthen pit but have since leaked into the soil and groundwater. Defendants argued in closing arguments that Mr. Almas testified to the fact that the EPA has a plan to remediate the soil without requiring demolition of the building. However, Mr. Almas’ testimony concerned the repair of the sanitary sewer line in the City's right of way located across the service drive. Mr. Almas testified that the soil excavated to repair that section of the sanitary sewer would need to be removed, and his testimony included no reference to remediating the soil underneath 945 25The testimony further established that building 945 has extensive structural problems, evidenced by the corroded and rusted structural steel beams, and structural beams that were cut and may now affect the lateral support system of the building. The problems in the building's structure may make it more susceptible to damage or falling over during high winds or seismic activity. Add to this the general contamination present in the building's construction materials, and this Court has no confidence that rehabilitation of the building, including code violations, can be fully effectuated without exposing construction workers to the contamination present therein. Therefore, this Court finds that the contaminated soil, groundwater, and building materials, together with the structural problems and numerous code violations, unreasonably interfere with the public’s right to health, safety, and convenience. Additionally, the conduct which cause the leak and contamination of the surrounding ground ~ the illegal storage of hazardous chemicals and materials — is proscribed by law, and thus constitutes a public nuisance. Because building 945 is the origin of the contamination, and due to the conditions within that building, this Court finds that 945 is a public nuisance and abatement of that nuisance by demolition is an appropriate remedy. 925 Building 925 was roundly considered by all witnesses to be in the best condition of all of the buildings. Accordingly, this Court will not engage in lengthy analysis concerning 925. One caveat must be noted, however, to the analysis of both 925 and 901. It is currently unknown to this Court whether the ground around and under these buildings and the buildings themselves are contaminated. If the results of soil sampling that was 26conducted by the EPA shows that the soil around and under these buildings are contaminated to an extent that requires remediation, and such remediation cannot be accomplished without demolition of these buildings, then this Court finds that 925 and 901 are also public nuisances and abatement by demolition of same is appropriate. Absent such findings, this Court finds that none of the testimony establishes the need to demolish 925. However, due to testimony evidencing that the building requires repairs and remedying of code violations, this Court enjoins use of the building for any industrial, commercial, or other use it is zoned for, until it can be brought up to code as needed to allow for occupancy and use, as determined by the relevant local authorities, 901 This building is considered to be three distinct but attached buildings, with 901A, being the most westward building, and 901C the eastward building. Subject to the above environmental caveat, this Court finds that the conditions of 901A and 901C make them @ public nuisance for which demolition is an appropriate remedy. Mr. Benipal testified that there are cracks present in the slabs which indicate that the prolonged exposure to the elements has likely caused the foundations to settle, weakening the foundational support of 901A and C. He explained that due to the exposure of the elements, water inside the building would freeze the foundation, thereby causing the cracks in the slab. He also testified to cracks in the walls and missing and rusted Portions of the roof. Mr. Benipal opined that 901C is very unsafe and could fall down in high winds. Mr. Mangindin testified that he saw no structural reasons that these buildings would need to be demolished. However, he agreed that cracks in the walls were present aralthough he did not believe that these “step cracks” were as serious as a vertical crack He also did not address if the slab cracks showed that the foundation was weakened, except to say that he saw no evidence of a heaving foundation from the condition of the walls. He said he would expect to find vertical cracking or bowing of the walls if the foundation was weakened. However, Mr. Mangindin was unsure as to whether 901 was comprised of three separate buildings and admitted that he did not put that in his notes. This Court finds the testimony of Mr. Benipal to be more credible as it pertains to building 901. As a result, this Court finds that the conditions of 901A and 901C constitute a public nuisance because the buildings are structurally unsound, Based on the significant structural defects in 901A and 901C and Defendants’ checkered past in complying with code enforcement, this Court finds that an injunction would be unlikely to abate the nuisance. Therefore, demolition of 901A and 901C is appropriate As both experts testified that 901B is in the best shape, relatively speaking, of the 901 buildings, this Court finds that demolition is not an appropriate remedy, pending investigation into whether 901A and 901C can safely be demolished without damaging 901B to an extent that it too would need to be demolished. If 901B can be saved, it is subject to the same use injunction as 925. Cost of Abatement Plaintiff also requests that the cost of abatement be assessed against Defendant. A trial court has the discretion to order a defendant to pay the cost of abatement of a public nuisance. Ypsilanti, 281 Mich App at 276-277. Here, the evidence shows that Defendants were given numerous wamings of violations of hazardous waste storage and production regulations in excess of allowable 28amounts in 1996, 2004, 2005, 2006, 2007, 2008, and 2016, including a 2010 consent order which required Defendant Sayers to bring the plating company into compliance. While some effort was made towards compliance in 2007, full compliance was never achieved. It is not unreasonable then, to order Defendants to pay the cost of demolition considering the problems giving rise to the nuisance was entirely within Defendants’ control, particularly Defendant Sayers, and Defendants did not comply with the hazard waste storage and production regulations for over twenty years. THEREFORE, IT IS HEREBY ORDERED that the buildings known as 945/959 E. 10 Mile Road in Madison Heights, and 901A and 901C of 901 E. 10 Mile Road in Madison Heights, are public nuisances. IT IS FURTHERED ORDERED that those buildings shall be demolished with the cost of demolition to be assessed to Defendants. IT IS FURTHER ORDERED that 925 E. 10 Mile Road in Madison Heights and the 901B section of 901 E. 10 Mile Road in Madison Heights, are enjoined from use or occupation until those buildings are brought up to the applicable codes to allow occupancy and use, as determined by the applicable local ordinances and authorities of the City of Madison Heights *© Plaintiff Exhibits 4, 5, 6, 7, 8, 11, 12, 14: Letters of Waming from MDEQ regarding hazardous waste; Plaintiff Exhibit 13: Consent Order. ‘4 Plaintiff Exhibit 10: Emails between MDEQ staff 29IT IS FURTHER ORDERED that if the 901A and 901C sections cannot be demolished without damaging the 901B section to the extent that it cannot safely stand ‘on its own, then 901B shall also be demolished as well. IT IS SO ORDERED. This is a final order and closes this case. Dated: __5/6/2020 /s/ Hala Jarbou Hon. Hala Jarbou Circuit Court Judge AS 30