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In September, we issued Part I of our series on Township Law Legal Updates, which you can find in the Township Law Resources section of our website. This year the Township Law Legal Update has been divided into two updates, as numerous developments in the law have occurred that could not all be addressed in one E-letter. In Part II, we leave the best for last, including how to repeal zoning ordinances, whether building inspectors are liable for faulty construction, and the Court of Appeals’ most recent review of the Right to Farm Act.

Court Makes Clear that Ordinances May Not Be Repealed by a Subsequent Resolution

In April of this year, the Court of Appeals reiterated the validity of a longstanding principle named the equal dignity doctrine. The Court of Appeals applied the doctrine to a township’s procedures in repealing a zoning ordinance by a resolution.

In this case, a small rural township in the “thumb” of Michigan had enforced a zoning ordinance since 1956. The township no longer desired to rely on its own zoning authority. Rather, the township preferred to relinquish local zoning authority, permitting the county zoning ordinance to control. The township board adopted an ordinance repealing the then-current zoning ordinance. The township residents, however, rejected the ordinance in a referendum. The township board, intent on repealing the township’s zoning ordinance, simply adopted a resolution to that effect. This action by the board triggered the residents of the township to file suit, arguing a zoning ordinance could not be repealed by resolution.

The Court of Appeals agreed. The Court held that longstanding Michigan law required that an ordinance be repealed or amended with an action of equal dignity. This means that if a township takes action by following the process for the adoption of an ordinance, that action may only be amended or repealed by following the same process. In the case above, the township’s adoption of a resolution was not the same process as that which adopted the original zoning ordinance, and was therefore not of equal dignity. This same principal applies to township resolutions. The adoption of a resolution can later be amended or repealed by the adoption of a subsequent resolution; it need not require the adoption of an ordinance.

We are often asked questions regarding the difference between an ordinance and a resolution. The most obvious difference between an ordinance and a resolution is the process for adoption. Ordinances require additional notice, and in the context of a zoning ordinance, at least one public hearing. In contrast, a resolution can be adopted at a public meeting, even if it is the same meeting in which the resolution is introduced, and no public hearing may be required. The Court of Appeals also discussed the difference between  a resolution and an ordinance in the case above, finding that an ordinance prescribes a permanent rule for the conduct of government, and a resolution is only of special or temporary character.

This case reminds townships of the need to ensure any amendment or repeal of an existing ordinance is done with the same formal process originally used to pass the ordinance. Resolutions, while applicable in many situations, are inappropriate for the purposes of amending or repealing township ordinances. Lorencz v Brookfield Twp, Michigan Court of Appeals (April 28, 2015) (unpublished).

Permitting a Use after Years of Controversy is Not Unlawful

Township regulations often address controversial topics—especially true of zoning ordinances. Anytime a township addresses such a topic, the oft-quoted phrase by poet John Lydgate, and later recited by President Abraham Lincoln, seems uniquely applicable: “You can please some of the people all of the time, you can please all of the people some of the time, but you can’t please all of the people all of the time.”

Anytime regulation is enacted or amended and “some of the people” are not pleased with the Township Board’s action, litigation can result. For zoning ordinances, the contention may arise whenever parcels are rezoned or additional uses are included in a certain zoning district through amendment of the zoning ordinance. The Court of Appeals recently addressed one of these cases in which long-term residents of lakefront vacation property sued a township for amending its zoning ordinance to permit transient rentals on the lakefront. Prior to this change in the zoning ordinance, the township had a longstanding history of prohibiting transient rentals in the township. This position on transient rentals had caused some litigation as well as controversy. At one point, while the township zoning ordinance clearly did not permit transient rentals, the Township  also did not always enforce this portion of the ordinance.

This controversy over transient rentals caused the township to reconsider its position on transient rentals. The township amended its zoning ordinance to allow for transient rentals as a conditional use. This appeased those property owners that wanted to convert single-family dwellings on the lake to rentals, but some lakefront residents argued that the ordinance amendments were invalid. The lakefront residents contended that they had a vested right in not allowing transient rentals near their property based on the 50-year history in which transient rentals were prohibited.

The Court found that the township could lawfully amend its zoning ordinance regardless of the longstanding history prohibiting transient rentals. The township had properly following the Michigan Zoning and Enabling Act. The changes to the ordinance were discussed at a public hearing, at which the residents had, and exercised, an opportunity to contest the proposed changes. The Court further explained that the residents could not show that their property was actually affected by the change because none of the resident’s property had been rezoned. The only difference between the previous ordinance and the amended version was that transient rentals were included as a conditional use, subject to the township’s permitting procedure. As a result, the residents could not maintain a suit as their property had not changed in use due to the amendment.

Townships are lawfully able to follow the procedures in the Michigan Zoning and Enabling Act to modify the zoning ordinance, including permitting items that may have been previously prohibited. As the trial court succinctly noted, “no landowner has a vested right in a continuance of a particular type of zoning.” Mirabella v Township of Autrain, Court of Appeals (June 9, 2015) (unpublished).

Township Is Not Liable for Faulty Construction despite Building Inspector’s Approval

When a new home is constructed, the owners do not expect to experience immediate problems. Sometimes errors do occur that have a significant impact on the habitability of a home. When these issues occur and the home has been inspected and certified for occupancy by a building inspector, the homeowner may believe that the township or its building inspector is responsible in addition to the builder. The Court of Appeals recently addressed this issue when a homeowner sued a city, arguing that the city building inspector had negligently inspected a home, and that a proper inspection would have revealed that the builder had inadequately gauged the groundwater level of the property. Upon completion of construction, the homeowner took possession of the property, only to realize that flooding continued to occur in the basement and water pressure from the ground had caused foundation damage. The homeowner alleged that the building inspector’s inspections were grossly negligent, and that the city’s substandard inspections amounted to an inverse condemnation of the property.

The Court rejected the homeowner’s claims. Turning first to the building inspector’s liability, the Court found that the damage to the home was caused by the builder’s actions, not the building inspector. The building inspector was not liable for gross negligence since the building inspector’s conduct during the inspection was not the most immediate, efficient, and direct cause of the injury or damage.

The Court also rejected the homeowner’s allegations of inverse condemnation, which was an attempt by the homeowner to argue that the city’s inspection services were a taking of private property without just compensation under the 5th Amendment. The homeowner argued that the failure of the city and its agent to adequately recognize and force correction of the ground water problem rendered the home virtually worthless, amounting to a taking by inverse condemnation. The Court rejected the homeowner’s argument, finding that there was no affirmative act by the city that caused the home to be virtually worthless. The Court also found that the inspector did not abuse his powers in approving the construction, as the builder had made representations that any ground water issues had been corrected. The Court determined the inadequate inspection to be an omission, rather than an affirmative act; as such, there could be no inverse condemnation.

This case demonstrates that building inspectors and municipalities will not be found liable for faulty construction that was approved by the inspector if the subsequent harm caused to the homeowner is primarily the result of some other party’s act. This gives townships a strong defense against negligence claims in connection with faulty construction projects. In most instances, the builder, rather than the building inspector, will be the party liable for any negligent construction. Even so, this case is also a reminder that the inspection process performed by building inspectors is important and inspectors should strive to ensure that a newly constructed home is habitable in order to afford a level of protection to homebuyers. Welgosh v City of Novi, Court of Appeals (March 19, 2015) (unpublished).

The Court Revisits the Right to Farm Act and Emphasizes a Township’s Local Control Over Uses Not Permitted under the Zoning Ordinance

The courts have revisited the Michigan Right to Farm Act (“RTFA”) at least once each year since the 1999 amendments to the RTFA, which weakened local control over commercial farming operations. Since that time, townships continue to grapple with whether local regulations are preempted by the RTFA. The RTFA serves as a defense to nuisance claims for those commercial farmers that also conform to generally accepted agricultural and management practices (“GAAMPs”). For those farmers that fail to conform to the GAAMPs, a township is not stopped from enforcing its nuisance and zoning ordinances. This year the Court of Appeals emphasized the importance of conforming to the GAAMPs. The Court affirmed a township’s enforcement of its zoning ordinance that prohibited farming operations in a certain zoning district on the grounds that the farming operation failed to conform to applicable GAAMPs.

The case in question dealt with a property owner who kept a number of animals on his residential property, in violation of the township zoning ordinance. The property owner argued that the RTFA preempted the township’s conflicting zoning ordinance, while the township countered this argument by arguing that defendant’s failure to adhere to GAAMPs rendered his defense inapplicable.

The Court agreed with the township, finding that the RTFA did not protect defendant’s farm from the township’s zoning ordinances. The Court found that the RTFA did preempt local laws and zoning ordinances in conflict with GAAMPs, but only if the challenged farm operation conformed to applicable GAAMPs. The Court found that defendant, while able to satisfy the first requirement, could not satisfy the requirement that he be in compliance with GAAMPs. Reviewing the record, it became apparent to the Court that defendant had failed to comply with rules regarding the farm’s manure practices and, as a result, could not rely on the protections of the RTFA.

The RTFA was specifically designed to protect farmers from local zoning ordinances; this protection is limited, however, to farms complying with GAAMPs. The difficult problem with the RTFA is the ever-changing GAAMPs. Each year the Michigan Department of Agricultural and Rural Development (“MDARD”) reviews the current GAAMPs and determines whether any revisions are necessary. The GAAMPs are extensive, covering 7 farming topics over several hundred pages. Thus, Townships dealing with individual’s conducting farming operations in violation of township regulation should be aware that the township may be able to enforce its regulation, but an extensive review of the GAAMPs will be necessary. The Township should also be aware that the RTFA may provide a defense to that individual if he or she satisfies the necessary GAAMPs. Township of Williamstown v Hudson, Court of Appeals (May 19, 2015) (unpublished).

By: Christopher Patterson

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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 150 years of experience in township law, and have represented more than 150 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.