Act 188 of 1954 (“Act 188”) is a statute that many townships use to finance many improvements using special assessments ranging from lak...Read More
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The laws that apply to townships are unique and not well understood by ordinary citizens and even most lawyers. These laws are also constantly developing, with new interpretations being handed down by the courts on a regular basis. Some of the most recent developments in this changing body of law are discussed below for the benefit of township officials.
Truck Route Ordinances
Our law firm recently helped Oshtemo Charter Township get a favorable decision from the Court of Appeals on its truck route ordinance. The Court’s opinion will also assist other townships to defend their right to regulate heavy truck traffic on roads within the township.
Heavy trucks on roads within the township can have significant traffic, safety, dust and noise impacts on township residents. To address these impacts, townships often seek to control the weights and routes of trucks within the township. A truck route ordinance can be an effective means to establish these controls, but townships need to consider some guidelines to the use of these ordinances.
Townships have clear legislative authority to adopt ordinances providing “that only certain highways or streets may be used by trucks or other commercial vehicles” under MCL 257.726(1). Pursuant to this legislative authority, townships may prohibit truck traffic above certain weights on designated roads, or may require that trucks above certain weights may only use designated roads.
Townships also have constitutional authority under art 7, §29 of the Michigan Constitution to “reasonably control” their roads. Thus, the courts have focused on whether township truck route ordinances are “reasonable” or “constitutional.” Examples of some truck route ordinances that the courts have upheld as reasonable in past cases include:
- A truck route that caused increased expense to the truckers.
- A route that eliminated traffic from one residential area but diverted it to two others.
- Diversion from a former route that in some respects was “wider and safer.”
- A route that required trucks to enter the municipality at a point distant from their destination.
- A route that increased the round trip distance to and from a gravel pit by 12 miles.
- An ordinance that required trucks to avoid residential and recreational areas.
- A route that allegedly made the trucking company “uncompetitive.”
- A truck route that was not the “best” route, since it is only necessary that it be “reasonable.”
The recent truck route case involving Oshtemo Township presented a situation where the surrounding townships and the county road commission objected to the truck routes that Oshtemo Township chose within its township boundaries. A 2009 statutory amendment allowed such objections, and made the road commission the arbiter of such disputes. In Oshtemo Township’s case, the road commission sided with the other townships and struck down large portions of Oshtemo’s truck route ordinance.
Fortunately, the Court of Appeals agreed with Oshtemo Township on review of the road commission’s decision. The road commission could not set aside the township’s ordinance unless it first demonstrated that the ordinance was unreasonable. Since the road commission and the objecting townships did not prove that the ordinance was unreasonable, the road commission had no authority to disapprove the township truck route ordinance. Further, to the extent that the statute purported to grant the road commission unlimited discretion to set aside township truck route ordinances, the Court held that the statute was unconstitutional.
The Court explained that a township truck route ordinance might be “unreasonable” if, in combination with other townships’ regulations, it created a “chaotic patchwork” of truck routes through and between the townships. But in the Oshtemo Township case, the other townships had not adopted any conflicting regulations, and simply preferred that trucks use specific streets within Oshtemo Township. That did not make the Oshtemo Township ordinance unreasonable.
As a result of this court opinion, which was published, townships across the state will now enjoy broader authority to regulate the routes of heavy truck traffic within their boundaries. Oshtemo Charter Township v Kalamazoo County Road Commission, Michigan Court of Appeals (June 25, 2013).
Flat-Fee Township Police and Fire Assessments
In another recent win for one of our law firm’s clients, Williamstown Township, the Court of Appeals reversed the Michigan Tax Tribunal and allowed the township to collect flat-fee special assessments under the Township Police and Fire Act. This published authority will help townships across the state to support their police and fire departments with special assessments that are fairly based on the benefit of those services to individual properties.
Although flat-fee special assessments have been used by townships for many years to support their police and fire departments, a recent change in the statute raised a question about whether flat-fee assessments were still valid. According to the Michigan Tax Tribunal, the statutory change meant that all township police and fire assessments must be based on the taxable value of township properties. As a result, the townships would be required to impose special assessments based on taxable value for all properties, regardless of the benefit to the properties. So, for example, a million dollar farm parcel that derives little or no benefit from police and fire service would be required to pay the same special assessment as a million dollar retail building. This change seriously threatened the continued viability of special assessments for township police and fire services.
The Court of Appeals reversed the Tax Tribunal, finding that the township properly assessed a flat fee of $150 for each residential parcel and $250 for each commercial parcel. The Court recognized that a special assessment may be calculated based on “benefits received” by a parcel, and not only based on the parcel’s taxable value. Although taxes must be levied uniformly on taxable value, the same is not true for special assessments, which may be assessed “according to benefit.”
Many townships face this same quandary. If they try to finance police and fire services with a tax millage, they face understandable resistance from many property owners, especially farmers, who receive little or no benefit from the service. By instead financing the services with a flat-fee special assessment for each residential and commercial parcel, which do benefit from the services, the township may find greater community acceptance for the proposed financing mechanism. Kane v Williamstown Township, Michigan Court of Appeals (July 11, 2013).
We Can Help
The lawyers of Fahey Schultz Burzych Rhodes PLC have decades of experience assisting townships in meeting their legal needs and requirements. Our lawyers have guided many townships through difficult issues and disputes. We welcome your questions and ideas about ways to improve the delivery of your township’s legal services. Please contact us if you need assistance.
— Bill Fahey email@example.com
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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 130 years of experience in township law, and have represented more than 130 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
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