Laws that apply to townships are changed frequently by the Legislature and the courts. This month’s E-letter focus on decisions handed down by the Michigan Court of Appeals impacting zoning and planning. As economic activity increases, so do requests for zoning action. Some of the most recent developments in the last year provide assistance to township officials faced with current zoning challenges. Stay tuned for the second part of our legal update that will focus on other decisions that have impacted townships.
ZBA Decisions Must be Timely Appealed
Most municipalities with a zoning ordinance have a Zoning Board of Appeals (ZBA) handle the appeal of administrative decisions made by other bodies or officials of the township, construe and interpret the zoning ordinance language, and provide for variances. This administrative body provides an important service to townships, as it often stands as the first step for any property owner that disagrees with a decision of the planning commission or the zoning administrator. Rather than first initiate a long and expensive process in the court system, many complaints can be redressed by the ZBA. This deference to allow the township to first resolve conflicts internally is recognized by Michigan courts. Michigan courts will routinely require parties that file suit against townships to first return to the township ZBA with his or her complaint prior to proceeding in court, except in narrow circumstances. This process also allows the ZBA to create an accurate record of the conflict and issue a written decision that further facilitates proper judicial review by the courts.
Once the ZBA has heard the case and issued a written decision or approved its minutes, a party can appeal the decision to a Michigan court. This appeal must be done timely, however, or a party may risk losing his or her right to have the appeal heard by the circuit court.
The Michigan Court of Appeals recently addressed the significance of filing a timely appeal. Reynolds v Huron Charter Township, Michigan Court of Appeals (2016). Currently, the jurisdictional timeframe for filing an appeal of a ZBA decision is provided in MCL 125.3606(3):
“An appeal from a decision of a zoning board of appeals shall be filed within whichever of the following deadlines comes first:
“(a) Thirty days after the zoning board of appeals issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the zoning board of appeals, if there is no chairperson.
“(b) Twenty-one days after the zoning board of appeals approves the minutes of its decision.”
In this case, the ZBA heard the Plaintiff’s appeal on May 10, 2014, and approved the minutes on May 12, 2014. There was no written decision issued, so the time for filing an appeal was 21 days from May 12, 2014. Plaintiff, however, did not file the claim of appeal until August 20, 2014, more than 21 days later.
Despite Plaintiff arguing that the township deliberately delayed in releasing the approved minutes until August 12, 2014, the Court found that the jurisdictional time had passed and a claim of appeal does not require the official meeting minutes to vest the circuit court with appellate jurisdiction over the ZBA’s determination. None of the parties disputed that the Plaintiff did have a copy of the unofficial minutes within the time for filing an appeal.
This case illustrates that the time for filing an appeal from a ZBA decision is significant, and failure to follow the timelines imposed by the Michigan Zoning Enabling Act will bar the plaintiff’s appeal. The Court also touched on an issue that the circuit court raised regarding a “deliberate” delay in releasing the documents “necessary” for the appeal. The Court found that the township did not delay in any respect in this case. Even so, townships should understand that certain decisions, especially those of the ZBA, can be appealed to the circuit court. Townships should not diminish a party’s right to an appeal by deliberately delaying the release of documents or otherwise intentionally causing the appeal deadline to be missed. As the Court pointed out here, unofficial meeting minutes will be sufficient for purposes of appeal, but township ZBAs should be diligent in either producing a written opinion or approving the body’s minutes. Reynolds v Huron Charter Township, Michigan Court of Appeals (2016).
Local Ordinances and State Law Preemption
When determining whether to adopt a new ordinance, townships must first determine whether they have the authority to adopt such a regulation. Township authority to pass any local ordinance must be provided for in (1) the State Constitution; or (2) the State laws adopted by the Michigan Legislature. A local government only has authority expressly granted to it or which can be “fairly implied” from the express grant. In some instances, state law even explicitly authorizes local regulation.
Many townships appropriately determine whether the regulation that they seek to adopt is authorized by law. There is a related concept, however, that is often overlooked. In the instances where townships believe they have the implied authority to adopt a regulation to address the public health, safety and welfare, and state law is silent on how it relates to local regulation, townships must determine if local regulation may conflict with, and thus be preempted by state law.
“Preemption” is not a new legal concept, but a recent Michigan Court of Appeals decision regarding fireworks regulation reminds townships of the importance in properly drafting local ordinances, ensuring authority exists for the ordinance, and determining whether state law already controls the issue (and thus there is no room for local regulation).
Under the doctrine of preemption, a state statute preempts an ordinance when the ordinance either (1) directly conflicts with the statute or (2) the statute completely occupies the field that the ordinance regulates. McNeil v Charlevoix Co, 275 Mich App 686, 697; 741 NW2d 27 (2007). However, in a situation that may seem like direct preemption to the lay person, a court might consider there to be no preemption whatsoever.
The Michigan Court of Appeals recently demonstrated the often complex nature of determining whether conflict preemption exists in Rodriquez v Township of Delta, Michigan Court of Appeals (2016). In this situation, a township enacted an ordinance prohibiting the sale of goods at a private residence prior to 9:00 a.m. and after 9:00 p.m. An individual attempting to sell fireworks outside of those hours challenged the ordinance as in conflict with MCL 28.457(1), which appears to prohibit a township from regulating “in any manner” the “sale” or “distribution” of fireworks.
Interestingly, the Court of Appeals’ holding exemplifies how crucial this analysis is to the validity of the ordinance. The ordinance regulates all vendors, which would include fireworks vendors. In saving the validity of the ordinance, the Court of Appeals found that the ordinance addresses vendors, not fireworks, and that the statute does not address hours of operation. According to the Court, for direct preemption to exist, the conflicting provisions must address the same subject. In this case, neither expressly prohibited what the other expressly permitted. Thus the ordinance and statute did not directly conflict.
The township ordinance was also challenged on the grounds that the State law addressing fireworks occupies the entire field of fireworks regulation, since it limits local regulation in “any manner.” The Court of Appeals noted, however, that a statute must expressly state that the state’s authority to regulate is exclusive or that the regulatory scheme is so pervasive there is no room for local regulation. The Court in this case did not find anything to indicate that exclusivity. The Court of Appeals held that the ordinance and state statute, while may have some inconsistency, were able to both coexist.
This case highlights the importance for townships to thoroughly analyze whether authority exists to enact an ordinance and whether any state law already controls in that area. If state law does address the same issue the township desires to regulate, it will be important to determine whether the proposed language will conflict with the state law or whether the state law occupies the entire field of regulation.
Do Not Ignore the Township Zoning Ordinance
Any township that has adopted zoning regulations under the Michigan Zoning Enabling Act or its predecessors, has set forth a mechanism for enforcement if a violation exists. In certain instances, that mechanism includes a township’s ability to file an action in district seeking a judicial determination that may impose a fine or imprisonment.
In a case released last year, a township had a procedure for enforcement, which included the ability to seek a judicial imprisonment and impose a fine. The issue for the Court was whether a township could impose fines to be paid by the property owner without filing an action and requesting that a district court impose the fine. The Court decided that the Township could not require payment of the fines as it lacked the authority to impose the fines according to the Township’s Zoning Ordinance. Claybanks Twp v Feorene, Michigan Court of Appeals (2016).
In that case, the property had actually violated the zoning ordinance by erecting structures without obtaining a zoning permit. Once notified that the permits were required, the property owner attempted to obtain them. The property owner was unable to do so, however, as the Township conditioned approval of the permits upon paying $3,100 in fines. The Township requested the fines based on a section of its zoning ordinance, which provided that a person could be fined “upon conviction” not more than “$100,” plus “actual costs for prosecution.” Each day that the violation continued was deemed a separate offense.
In reviewing this section of the Township Zoning Ordinance, the Court of Appeals determined that the Township’s own Zoning Ordinance did not permit the imposition of the fines without a judicial determination made in district court. See MCL 41.183(6). This determination was based on the use of “upon conviction” and “prosecution.”
The Court also found that the Township’s attempt to impose its own fines of $3,100 was egregious and that the action brought against the property owners had the primary purpose to harass and injure the property owners. This resulted in the Township also paying the attorney fees of the property owners.
This case may present a worst case scenario for townships. The Court of Appeals decision also lacks the detail in the record that may further explain why the township believed the route it took was a valid approach under the zoning ordinance. Even so, this case shows the importance of townships to strictly follow the language in the zoning ordinance and understand the proper procedures for pursuing an ordinance violation. Failing to do say may result in unnecessary court costs and attorney fees for being perceived as acting in bad faith, even when the other party did in fact violate the ordinance.
Exclusionary Zoning Under Common Law and the Michigan Zoning Enabling Act
Most of us involved in zoning standards know that exclusionary zoning is illegal. For those that are unfamiliar with exclusionary zoning, it refers to use of zoning ordinances to exclude certain types of uses from a given community. Even though such uses may not have discriminatory intent, historical regulations excluding entire types of uses, such as mobile home parks, were seen as a means to unlawfully control the demographics of a township.
The Michigan Zoning Enabling Act addressed this head on and prohibited exclusionary zoning in MCL 125.3207, which prohibits regulation that “totally” eliminates a land use “in the presence of a demonstrated need for that land use”:
“A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use within either that local unit of government or the surrounding area within the state, unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.” MCL 125.3207.
According to this statutory language, it is important to remember that a “demonstrated need” must exist for the requested land use and a location must “exist where the use may be appropriately located.”
In International Outdoor, Inc v City of Livonia, the Michigan Court of Appeals reviewed claims made by International Outdoor, Inc against the City of Livonia regarding the City’s ban on any new billboards within the City. One of those claims was made on MCL 125.3207, which is excerpted above. Here, the Court made clear that a “desire” for a certain use does not prove a “demonstrated need.” This exemplified the difficult hurdle one must overcome to show that a certain use has been “totally prohibited” in violation of MCL 125.3207, and thus excluded.
The second claim reviewed by the Michigan Court of Appeals is not often raised, and thus is worth mentioning. International Outdoor claimed that the City’s ban on new billboards violated exclusionary zoning under common law. This means it is a cause of action not defined in statute, but articulated in previous decisions of the Court of Appeals or Supreme Court.
The interesting difference between the statutory prohibition and the common law prohibition is that the common law prohibition is far less precise than MCL 125.3207. As opposed to the Zoning Act’s requirement of “demonstrated need,” the common law standard is that “local government cannot suppress what the state promotes or permits.” Thus if the state promotes a particular land use, a township cannot create an ordinance to suppress such a use. This language is broader than MCL 125.3207 and also requires a separate analysis as to whether a township is excluding a certain use that is “promoted” or “permitted” by the State. The Court did note that it was assuming that the common law theory of exclusionary zoning still survived after enactment of the Michigan Zoning Enabling Act, but believed the validity of such a claim is questionable.
Regardless, in this case the Court found that under either exclusionary zoning approach, the City had lawfully excluded new billboards. As the Court pointed out, certain billboards still existed in the City and the City did not a have a complete ban on all billboards, but only a ban on constructing new ones.
Townships must remain cautious on adopting zoning provisions that completely ban a certain land use. Although a prohibition on a certain land use may be lawful, township officials should contemplate whether the provision creates a complete ban or a partial, whether there is a demonstrated needs for the use, whether the need for the use is satisfied by surrounding jurisdictions outside of the township’s jurisdiction, and whether there is a location in the township where it can be properly located.
— 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