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Economic development and affordable housing opportunities present the highest stakes imaginable for elected officials because they forge the future of the community and identify what it will look like in the decades to come. However, future impacts cannot be known or guaranteed, which has the cruel tendency to magnify avoidable mistakes. Because time travel is only currently available in the movies, the regret that comes with missed opportunities cannot always be fixed in real time. This E-letter explores how to avoid regrettable mistakes when making your most important decisions.

Regrettable Mistakes are Avoidable Even Without a Time Machine

Imagine sitting through a Township Board meeting where a multimillion-dollar development project needs a decision. Members of the public are split on the issue. Some are in favor of the project and the jobs it will bring. Others are against the project and the traffic and noise it will create. An election is on the horizon, the Board has not come to a consensus, and a motion has been made.

While the Clerk is calling for the vote, you think back on the information you learned during deliberation. Unfortunately, the conversation was cursory and the applicant was asked few relevant questions about the Township’s development review standards. Jobs will be added, but you don’t know how many, when, or for how long—and no one thought to ask. Traffic will increase, especially large semi-trucks barreling down the local trunkline road that serves as a main thoroughfare, but no one asked how many, when that will happen, or who will fix the deteriorated roads.

As the Clerk calls your name for the roll call vote, you start to wonder: “Did we debate enough?” “Did we ask the right questions?” “Did I learn everything I needed to make an informed decision based on the zoning ordinance review standards?” And the voice in your head regrettably says, “No.”

Mistakes are borne out of those moments, and often, tough lessons are also learned. But what if it didn’t need to be that way? What if there was a more effective way?

For those of us who do not have a DeLorean vehicle with the kind of capability that will take us back to the future, we quite often find ourselves asking, “What if?” Asking that regret-filled question often means something has already gone wrong, and there is nothing that can be done to fix it.

In the classic 1985 film Back to the Future, Marty McFly accidentally travels back in time and must carefully navigate the past to ensure his future existence. Marty learns that one wrong move could dramatically alter the timeline or even erase his existence entirely. Township governance operates with similar stakes–decisions made today set precedents and determine outcomes that may affect your community for decades to come.

Just as Doc Brown warned Marty about creating paradoxes that could unravel the space-time continuum, Township officials are cautioned about the consequences of hasty, uninformed decisions that could lead to legal challenges, financial liability, or community discord. If we could all have a Marty McFly visit us during the most important days of our professional careers, managing our Townships and these issues—in particular—would be much easier.

Sound decision-making processes informed by expert legal advice can be your Marty McFly (but without the DeLorean). A goal of township officials should be to make sure you know what you need to know before it is too late—so you do not have to worry about meeting your past self and face public scrutiny, if for no other reason than unraveling the fabric of space-time and destroying the Universe sounds like a pretty bad way to go out.

THREE LESSONS FROM THE FLUX CAPACITOR (AKA, TIME TRAVEL)

Lesson 1: Ask Questions – Even the “Basic” Ones

In the example above, the first way to avoid regret (and perhaps litigation, depositions, or the destruction of the Universe) is to make sure your questions are answered. The best way to make sure you get the answers to your questions is to make sure you ask your questions. This is obvious, but for new Board Members, asking questions that sound “basic” are often the most difficult to ask. Therefore, if you are an experienced Board Member, have patience. And if you are a new Board Member, be brave.

Just as Marty had to overcome his hesitation and ask Doc Brown difficult questions about time travel, township officials must not shy away from asking clarifying questions during meetings. The “obvious” questions are often the most critical. Questions like:

• “How many jobs will this project create?”
• “What types of jobs will they be? Temporary construction or permanent positions?”
• “How does the project relate to the Township’s Master Plan?”
• “Have all the development review standards of the zoning ordinance been addressed?”
• “What impacts are expected on the surrounding area?”
• “Has a traffic study been conducted to understand the impact?”
• “What development incentives are being used and what impact will the project have on specific tax revenue?”
• “What infrastructure improvements will be needed to support this development?”

These questions provide the factual foundation upon which informed decisions are built.

All Board Members should participate in the deliberation process and determine what information is missing before voting. The deliberation should focus on how the review standards have been met (or not) and what conditions may be necessary in the motion or resolution. If important questions or information remain unanswered, a decision may need to be postponed for another meeting date. Without answers to these fundamental questions, Boards risk making decisions that, like Marty’s actions in 1955, could have unforeseen consequences.

Lesson 2: Document Everything – Minutes and Written Decisions Matter

The second way to avoid regret is to make sure the proper information is captured in the proper place and manner. It is not the best municipal practice to capture every question and answer during deliberation within the board or committee minutes. In fact, that is not the purpose of the minutes, which should identify clearly the action that was taken, including who made what motion, who seconded the motion, and to properly reflect the language of the motion.

Juxtapose that with a written decision. It is best practice to make sure the proper information that supports the ultimate finding of the board or committee is included within the record, such as in a staff report, findings of fact, conditions, etc. Furthermore, it is equally important that the final, separate resolution or other written decision reflects the basis of the decision. Identifying what the board or committee has relied upon is imperative because it allows those who come from the future to look back at the decision and understand why it was made.

Think of your minutes as a snapshot in time – they indicate to future readers what was done. And consider the final, written action to be your time machine – they transport future readers back to your meeting, allowing them to focus not just what was decided, but why. Courts reviewing board and committee decisions will rely heavily on the written record to determine whether proper procedures were followed and whether decisions were arbitrary or capricious.

This perspective is particularly important in these situations:

1. Multi-factor inquiries (land use decisions)

When making decisions on special land use permits, variances, or rezoning applications, courts will look to see if each required factor was considered. Resolutions and written decisions should clearly document the Board’s findings on each factor. The resolution should capture relevant public comments that address review standards and concerns based on the zoning ordinance and master plan, particularly those that support the decision. Ultimately, this ensures compliance with the Michigan Zoning Enabling Act (MZEA), which requires decisions on Special Land Uses to be incorporated into a statement of findings and conclusions which specifies the basis for the decision. MCL 125.3502(4). In addition, for Zoning Board of Appeals (ZBA) decisions, the MZEA requires the ZBA to state the grounds of any determination made by the board. MCL 125.3604(1).

2. Reviews of committee decisions

When a board, committee or commission is being reviewed on appeal, the record should detail the standard of review applied and the specific reasons for upholding or overturning the lower decision. For example, with a planned unit development (PUD) project the body responsible for approving the PUD is required to prepare a report stating its conclusions, its decision, the basis for its decision, and any conditions imposed on an affirmative decision. MCL 125.3503(6). Larger projects may require a resolution which incorporates all the information provided, review standards, public input and conditions all in one document.

3. Delegation of authority to an Elected Official

When the Board delegates authority in circumstances that are permitted under Michigan law, the motion, and therefore the minutes, should clearly document the scope and limitations of that authority to prevent future disputes.

Just as Doc Brown kept detailed journals of his time travel experiments, Townships must keep detailed minutes of their decision-making processes. Without this documentation, future legal challenges become much more difficult to defend.

Lesson 3: Know the Limits of Delegation

Any statutory duty can be delegated with proper authority, provided it complies with Michigan law. One such law—MCL 42.10—discusses the delegation of authority to a Superintendent or Supervisors within a Charter Township. However, any statutory duty can be delegated, and it is common within boards and committees to delegate responsibility to both elected and non-elected government officials. When this happens, most believe that what is being delegated is the most important consideration; however, it is equally important to make sure delegation is performed correctly.

Generally, boards and committees cannot delegate policy decisions. Thus, if a construction contract has terms remaining to be negotiated, depending on the number of terms and their complexity, a board or commission may or may not be able to delegate that authority to the an elected or non-elected official. The way to avoid delegating power improperly is to ensure that there is proper board or committee guidance directing what is expected, and, in some instances, how that result should occur. Thus, an elected official can be directed to negotiate a complex contract attempting to achieve favorable terms for the board, but because those terms may impact policy, final approval should be referred back to the full board before the contract is executed.

In “Back to the Future,” Marty couldn’t delegate the responsibility of ensuring his parents met and fell in love – some tasks simply can’t be handed off. Similarly, boards and committees cannot delegate certain core governmental functions. Understanding these limitations is crucial to proper governance.

CONCLUSION: YOUR OWN FLUX CAPACITOR

While your position as a public official most certainly does not come with a time-traveling DeLorean, you can equip yourself with the best practices and expertise provided by consultants and attorneys that will help you avoid wishing you had one. By asking thorough questions, maintaining detailed records (including minutes and written, final decisions), and understanding the limits of delegation, you can ensure that your decisions stand the test of time.

At FSBR, we’re committed to helping you navigate these complex issues before they become problems. As Doc Brown might say, “Your future hasn’t been written yet. No one’s has. Your future is whatever you make it. So make it a good one.”

By: Eric Conn and Wayne Beyea

This publication is intended for educational purposes only. 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.