On its face, a local ballot initiative seems like a straightforward process: petitions are circulated, signatures are counted, and ballot la...Read More
We are involved in our communities, our profession, and our clients' associations and activities.
When regulating property, townships face difficult decisions. Although townships may wish to rely on their police power to enact and enforce ordinances promoting the health, safety, and general welfare of their residents, they must be sure to do so without violating a citizen’s due process rights or other relevant law. Recently, the Michigan Court of Appeals has set forth a number of important decisions that shed light on this difficult balance, and help township officials to better understand the scope and limits of what can be accomplished through police power ordinances. This month’s E-letter focuses on these decisions, with a special focus on decisions illustrating the enforcement of township ordinances, abatement of violations, and the permissible scope of township authority to regulate certain areas, such as fireworks.
Enforcing Noxious Weeds and Tall Grass Ordinances
Many municipalities have adopted ordinances addressing noxious weeds and tall grass. For townships, these ordinances are often predicated on state law expressly allowing townships to adopt noxious weeds ordinances. This year, a property owner challenged a municipality’s ordinance that required grass to be no more than six inches in height. If the property owner failed to timely comply with the ordinance, the municipality would cut the grass or remove the weeds at the property owner’s expense.
In administering the ordinance, the municipality provided notice of the violation and time for the property owner to comply, which was the procedure required by the ordinance. The property owner challenging the ordinance claimed that the process was constitutionally deficient. According to the property owner, before the grass could be cut by the enforcing municipality, the Constitution mandated that the municipality first provide a due process hearing before an impartial decision maker.
The Court of Appeals found that a valid property interest existed in a property owner’s grass. But, that interest was minimal, and a municipality has a strong interest in preventing noxious weeds. The Court also acknowledged that a hearing would be an additional step that could be provided, but the notice and communication required of the municipality by its ordinance before cutting the grass and charging the property owner was sufficient. Any hearing would only add unnecessary expense and burden.
The outcome reinforces a township’s ability to remove noxious weeds and grass without providing a hearing for each offending property owner. It also illustrates that townships should check their ordinances and ensure that notice reasonably calculated to reach the property owner is being used before a township cuts tall grass and charges the property owner. And even if those ordinances have sufficient provisions providing for ample communication with the property owner regarding the violation, the townships should also ensure that they are following those provisions. If these conditions are satisfied by the township, tall grass can be abated by the township when faced with a property owner unwilling to bring his or her grass into compliance. Eldenbrady v City of Muskegon, Michigan Court of Appeals (2017).
Dealing with Unrepresented Parties
Ordinance enforcement actions often result in direct communication with individual property owners. Once a formal proceeding is instituted in court, whether through a civil infraction process or misdemeanor process, a property owner can elect to represent himself or herself. There are instances where violations involve not an individual, but a legal entity, such as corporations, limited-liability companies, non-profits and other organizations. In such cases, an attorney must represent the legal entity separate from any officers or employees of that legal entity.
A case decided this year is a reminder that even in enforcement actions, a legal entity must hire an attorney to defend itself in any lawsuit. For instance, a municipality brought a nuisance abatement action requesting demolition of a building. The nuisance abatement action was brought, in part, against a church. The reverend of the church appeared in court and attempted to defend the church. The court defaulted the church, which means that the court found in favor of the municipality because the church failed to appear with legal counsel. Even when legal counsel was later hired and attempted to get the default set aside, the court was unwilling to do so. It found that mere ignorance of the law was not a sufficient reason to do so.
This case illustrates that some courts will hold property owners and other legal entities to the same standards that the municipality is held. This is important given the number of unrepresented property owners that townships often facing in enforcing ordinances. City of Ann Arbor v St. James Church of God in Christ Ypsilanti, Michigan Court of Appeals (2017).
Protecting Your Township Against Deceptive Development
Townships may find themselves in situations where a developer requests zoning or building approval for one land use, but actually intend to engage in a land use of significantly different character. This is the precise situation that occurred in Epicurean Developments, LLC v Summit Twp, Michigan Court of Appeals (2017).
Here, the plaintiff-developer purchased a vacant commercial building in a township. The developer then began to file building permits with the township, each of which claimed that the building was to be used as a “Private Membership Club.” The township’s zoning ordinance, which permitted “clubs and lodges” in the zoning district, approved these building permits. As time went on, however, the township discovered that the building was not intended to serve as a club or lodge as defined by the zoning ordinance, but rather as a “swingers club,” complete with amenities such as a dance club and sports bar. The township then moved to enforce its zoning ordinance and halt the unauthorized use by issuing a stop-work order.
One of the issues in the case was whether “clubs and lodges” as a permitted use within the zoning ordinance would include “swingers club.” In reviewing the ordinance, the Court recognized that “clubs and lodges” was historically intended to refer to private fraternal and civic organizations, whereas the developer’s proposed use was analogous to a nightclub, which was not permitted in the zoning district at issue. In doing so, the Court did not concern itself with the fact that the club was a “swingers club,” but rather the nature of the proposed land use, and how that use was to be properly classified under the zoning ordinance.
Although the use addressed in this case could be considered controversial, the deciding factor was whether the use was permitted by the plain language of the township’s zoning ordinance. The Court of Appeals’ decision emphasizes that townships enforcing their ordinance should focus on the language and historical context of such language to determine whether violations of any ordinances do exist. It is also a reminder that township should conduct regular review of and discussion about ordinance provisions to deem whether certain terms need to be defined within the ordinance. This can be accomplished through amendment of the current ordinance provisions, which may including adding definitions for key terms or rewording certain language to provide more clarity.
Restricting Uses on Property Must Promote Legitimate Governmental Interests
Township zoning ordinances address the scope of permitted uses within certain districts. One use often permitted within multiple district is “accessory buildings.” Such buildings are considered secondary or incidental to principal structures. Many communities do not allow accessory buildings on any property, unless a principal building has been constructed on the property.
A property owner constructed an accessory building on a wooded parcel in a community that did not permit accessory structures unless a principal structure existed on the property. A municipality discovered the building and moved to enforce its ordinance. The property owner challenged the ordinance on the premise that restricting the use of accessory buildings advanced no legitimate government interest. The Court of Appeals disagreed.
According to the Court, the limitation on accessory buildings preserved the “residential character of its neighborhoods,” which was a regulation designed to “promote public health, safety, and welfare.” Given this permissible purpose, and the fact that the property owners could not demonstrate that the limitation was arbitrary, the Court found the ordinance valid.
This decision reiterates the long-applied principle that ordinances adopted by municipalities must be adopted to promote the public health, safety, and welfare. In amending or adopting any new ordinance, it is important that commission members and board members consider the purpose that the ordinance attempts to achieves. The purpose must be permissible, and often the municipality can include specific findings in its ordinance indicating the legitimate government interest that the municipality is protecting in adopting new ordinances or amending current ordinances. Village of Pentwater v Bates, Michigan Court of Appeals (2017).
Townships May Impose Regulations Upon Fireworks Vendors
As Independence Day draws near, many municipalities struggle with how to regulate fireworks sales. In 2012, this area of regulation became more difficult under the Michigan Fireworks Safety Act (“Fireworks Safety Act”). The Fireworks Safety Act includes provision that govern the sale of fireworks. Significantly, it also specifically preempts municipalities from enacting related ordinances. This means that a local municipality cannot adopt a local ordinance that conflicts with or is inconsistent with the Fireworks Safety Act.
Municipalities desiring to enforce regulations regarding the sales of fireworks in their jurisdictions may have the opportunity to do so under a recent Michigan Court of Appeals decision. The case arises from a municipality that adopted an ordinance addressing the sale of all goods from temporary structures. The ordinance required licenses for such temporary sales. These licenses would only be granted to “established merchants,” defined so as to require an applicant to have a permanent structure within the City where ongoing business occurred. This ongoing business was also required to receive at least ten percent of its revenue from the sale of “substantially similar goods,” and required any temporary structure to be adjacent to the merchant’s permanent structure. These requirements, taken together, prevented a vast majority of fireworks merchants from obtaining the appropriate licenses.
Despite the preemption language in the Fireworks Safety Act, the Court of Appeals found the ordinance valid because it covered the sale of goods from temporary structures, not just fireworks. Although it did have incidental effects on the sale of fireworks, it was not in conflict with the Fireworks Safety Act because the Act does not address the sale of fireworks from temporary structures. This case illustrates that there are ways to protect the public, health, and safety of local residents with respect to temporary vendors selling fireworks. Given the preemption language in the Fireworks Safety Act, townships should consult with their township attorney in drafting any regulation on this issue. Z&Z Fireworks v City of Roseville, Michigan Court of Appeals (2017).
– Chris Patterson
Click here for a PDF version of this publication.
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.
Talk to an AttorneyRequest a Consultation
At Fahey Schultz Burzych Rhodes PLC, we’ve been helping municipalities, franchised businesses, employers, and more with their legal needs since 2008. We’d love to learn how we can help you, too.