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Many townships often want to know the limits of Michigan law with respect to the standards applicable to zoning to avoid excluding certain land uses within their borders. Case law suggests that some communities may find it necessary to strictly regulate the location of uses and structures through their Zoning Ordinance, including billboards, renewable energy projects (wind and solar), land uses related to waste, gravel pits, and mobile home communities. These discussions relate to exclusionary zoning challenges.

The Michigan Zoning Enabling Act in MCL 125.3207 includes statutory language that generally prohibits township zoning ordinances from totally prohibiting land uses subject to limited exceptions related to the demonstrated need for the land use, the appropriateness of location for the land use, or the lawfulness of the land use. This E-Letter provides: (1) a non-exhaustive summary of how Michigan courts have applied the statutory exclusionary zoning test and (2) tips on how your township can avoid challenges of statutory exclusionary zoning.

Michigan’s Statutory Exclusionary Zoning Prohibition

In townships with zoning, all zoning ordinances are subject to provisions and requirements of the Michigan Zoning Enabling Act. In summary, zoning ordinances provide for local control over the location of land uses and are intended to facilitate the orderly development of a township by ensuring, among other things, the compatibility of land uses to promote the public health, safety, and welfare. See e.g., MCL 125.3201. Michigan courts presume zoning ordinances are valid. Landon Holdings, Inc v Grattan Twp, 257 Mich App 154, 174; 667 NW2d 93 (2003).

Sometimes townships have to make difficult policy decisions when determining appropriate locations for certain land uses that may be, for various reasons, unpopular with residents without sufficient conditions and siting constraints to avoid nuisance factors such as noise, odor, glare, among other things. Because certain land uses may be either unpopular with residents or can potentially cause compatibility issues with neighboring or adjacent land uses, this may lead to a township finding that a land use is only appropriate in certain land use districts of the township. When that situation occurs, landowners who may want to site such a land use may challenge a township’s zoning regulations under an “exclusionary zoning” theory.

MCL 125.3207 is the Michigan Zoning Enabling Act’s statutory provision addressing “exclusionary zoning.” It provides:

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.

In Michigan, courts interpret statutes according to their plain and ordinary language. See Warren’s Station, Inc v City of Bronson, 241 Mich App 384, 388; 615 NW2d 769 (2000). A variety of courts have reviewed the provision above and have made various findings and conclusions. Below are some examples of how courts have applied the statute above in list form for convenience.

1. Not every land use is per se appropriate for every community due to unique circumstances across the townships. For example, industrial land uses are likely not appropriate for Mackinac Island. Hendee v Putnam Twp, 486 Mich 556, 576-77; 786 NW2d 521 (2010).
2. Generally speaking, all land uses will be subject to this standard under the Michigan Zoning Enabling Act, unless there are special zoning preemption provisions such as those for electrical transmission lines, adult foster care facilities and similar land uses, oil and gas wells, among other land uses. Kyser v Kasson Twp, 486 Mich 514, 542; 786 NW2d 543 (2010).
3. A “desire” (economic, self-serving want) for a land use is not the same as a demonstrated need for the land use. Int’l Outdoor v City of Livonia, unpublished per curiam opinion of the Court of Appeals, issued June 14, 2016 (Docket No. 325243), pp *28-29. Demonstrated need generally relates to a public need for the land use.
4. The burden to “prove” exclusionary zoning includes the obligation to prove a zoning ordinance totally prohibits the proposed land use. Houdek v Centerville Twp, 276 Mich App 568, 578; 741 NW2d 587 (2007).
5. A challenge under a statutory exclusionary zoning claim is likely not “ripe” or appropriate if a developer has not sought out all potential requests it can make to site the land use (e.g., variances) Putnam Twp, 486 Mich 556 at 573 (2010).

Key takeaways from the statutory provision above in addition to the findings from various courts under MCL 125.3207 are: (1) the provision only governs when a land use is totally prohibited; (2) there must be a “demonstrated need” for the land use within a township or surrounding community unless the land use may not be appropriately located (including being unlawful).

Tips to Guard Against Excluding an Appropriate Zoning Use

Understanding the framework for the statutory prohibition on exclusionary zoning, townships should consider several concepts when assessing their master plans, adopting new zoning ordinances, or amending their current zoning ordinances. Below is a list of considerations that townships should consider when assessing their master plan, and drafting, amending, and applying their zoning ordinances to avoid a statutory exclusionary zoning challenge.

1. Generally, do not prohibit land uses. The statutory prohibition on exclusionary zoning does not apply if a township does not totally prohibit land use in its zoning ordinance. For land uses that cause compatibility issues, consider allowing them in specific zoning districts and subjecting them to special land use permit review where conditions can mitigate against the impacts from the use.
2. If a new land use is being proposed or limitations are being imposed that might effectively ban a use, think about the “need” for it. If a township is considering a request regarding a new land use or limitations being imposed for a current use that effectively bans that use within its boundaries, the first prong of MCL 125.3207 will be met and there may be a higher probability of facing challenges under exclusionary zoning. If a zoning ordinance prohibits a land use intentionally, a township must be prepared to have evidence and/or sufficient reasoning of why the land use is not needed in the township or in the region. This will be particularly difficult to satisfy for those uses with a public need in the area or region.
3. Use the master planning process as a tool. Points #1 and #2 involve considering the appropriateness of land uses in a township and whether land uses are needed in a township or region. These are great items to address in a master plan regarding future land use development. Points in a master plan about these issues could be relied on related to application of MCL 125.3207.
4. Study land uses that may be unfamiliar. Zoning ordinances will not perfectly anticipate all land uses that may become more prevalent over the years. For example, the rapid development of utility-scale solar energy projects is something that many may have not anticipated decades ago when many zoning ordinances were written. To avoid potential statutory exclusionary zoning challenges, consider studying new land uses and temporarily pause consideration of such land uses rather than just pointing to a zoning ordinance and informing a developer that the land use is prohibited. Information about imposing moratoriums is available in a separate e-letter here: https://fsbrlaw.com/2023/03/31/pressing-pause-answers-to-seven-frequently-asked-questions-about-moratoriums/.
5. Understand the risk. Quite simply, more restrictive zoning regulations will create more opportunities for challenges from developers based on statutory exclusionary zoning theories, among other legal theories. Although not the topic of this E-letter, developers may challenge restrictive zoning ordinances on theories very similar to MCL 125.3207 such as older common law and constitutional theories. See e.g., Int’l Outdoor v City of Livonia, unpublished per curiam opinion of the Court of Appeals, issued June 14, 2016 (Docket No. 325243), n 1.

We hope the above helped outline how the Michigan Zoning Enabling Act’s exclusionary zoning language works and how courts have applied the test. Do not hesitate to contact us if your township needs help applying the statutory test above or otherwise needs guidance on how other challenges may apply to your zoning ordinance provisions.