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Laws that apply to townships are changed frequently by the Legislature and the courts. The courts hand down new interpretations that must be followed by township officials on a regular basis. Some of the most recent developments in the last year are discussed for the benefit of township officials in this first part of a two part series. Stay tuned for the second part of our legal update next month.

Imperfect Citations Did Not Violate the Property Owner’s Due Process

Who owns the curb strips in front of private property; the private property owner or the municipality? And if the property is ticketed for not maintaining this strip of land, what citation process is sufficient to meet fundamental due process? These answers were addressed in a recent Sixth Circuit case in which a property owner refused to mow the curb strip at the front of his property under the belief that the strip belonged to the city. He was assessed several hundred dollars in fines for violating city code. The property owner sued, alleging that the city had deprived him of substantive and procedural due process.

The Court first looked at the procedures provided the property owner for issuing citations and notices of violation of the city’s code. While the city had provided notice by both mail and by posting notice on the property owner’s door, it had failed to comply with its own written procedure for issuing citations. According to its own code, the city failed to provide the following: (1) the time by which the violator had to appear at the city, (2) the methods by which an appearance could be made, (3) the address and phone number of the bureau, and (4) the hours the bureau was open.

Nonetheless, the Court found that the homeowner had received sufficient notice and adequate opportunity to be heard in that the city had provided him with multiple notifications of the violations in question. Even though we do not suggest that a municipality should ignore its own procedures for issuing citations and noticing violations of its code, this case does show that minor technical errors in process a code violation does not render a civil infraction citation void.

The property owner also argued that forcing him to mow a curb strip belonging to the city was a violation of his fundamental rights. The Court disagreed, finding that the property owner, rather than the city, owned the curb strip, with the city retaining only a public right-of-way. As such, it was the property owner’s duty to care for the curb strip, and the city could ticket him for failing to do so. Shoemaker v City of Howell, Sixth Circuit (July 29, 2015).

Court of Appeals Clarifies Role of Zoning Board of Appeal

Occasionally, a zoning map does not include all of the available property within a municipality, which can lead to significant problems for a township. Zoning ordinance issues can often end up in front of a township’s zoning board of appeals, which has the authority granted by the Michigan Zoning Act.

In a recent Court of Appeals’ decision, the Court looked at the authority of the ZBA and whether it exercised powers actually delegated to the township board. The case originated from a township resident attempting to build a home on an island located within a lake. Ultimately, the ZBA was asked to determine whether the property was zoned. The ZBA determined that the island was zoned agricultural. The result of this decision was that the resident’s island did not comply with zoning requirements. The resident was denied a variance and litigation ensued.

Reviewing the ZBA’s zoning determination, the court noted that evidence from the ZBA meeting suggested that the plaintiff’s island had not been zoned, but that the ZBA elected to consider what zoning classification should apply. It was during this review that the ZBA noted that both plaintiff’s island and another island property were colored white on the zoning map, indicating that they were zoned agricultural (whether the property was white or non-colored was disputed). The ZBA, expressing a desire to adhere to the zoning ordinance’s intent to zone all property within the township, found the property to be zoned agricultural.

The Court noted that this could be a problem under the Michigan Zoning and Enabling Act, which does not authorize a ZBA to make initial zoning determinations or decide whether a property should be rezoned. The Court pointed out that the Zoning and Enabling Act authorizes the township board to make zoning decisions by a zoning ordinance, while a ZBA is authorized to hear and decide questions arising in the administration and implementation of that zoning ordinance. In essence, the ZBA was tasked with administrative duties, while the township, through its township board, was tasked with the legislative decision-making duties of zoning.

The Court concluded that it was unclear whether the ZBA legislatively zoned the island, which would have been impermissible, or merely found the property to be zoned based on an interpretation of the zoning map, which would have been permissible. The Court remanded the case to the lower court to determine whether the ZBA had acted within the authority delegated to it under the Zoning and Enabling Act.

This case illustrates the importance of maintaining a clear division between a township board and its ZBA. The township board is responsible for any zoning classification decisions, including initial zoning determinations, as those acts are legislative in nature. The ZBA, on the other hand, has a more administrative role, and is not empowered to make policies, only to interpret and enforce them. It is important that these two bodies perform within their statutory mandate. Hoffman v Porter Township, Michigan Court of Appeals (April 21, 2015) (unpublished).

Censorship in Meeting Raises Open Meetings Act Questions

The Michigan Open Meetings Act (“OMA”) is a familiar law to members of township government, and is designed to ensure that public meetings are conducted fairly and transparently as well as efficiently. This can be a difficult balance for board members to maintain, however, when a public meeting gets heated, or include personal attacks on township board members. Recently, however, the Michigan Court of Appeals held that township officials must adhere to the requirements of OMA, even in the face of harsh criticism.

In this case, three individuals were at a township meeting, and each was prevented from speaking for their full allotment of time according to the township’s policy once they began criticizing the board member. The board member claimed that she was unaware that she stopped two of the residents early, and while she admitted to stopping the third, she stated that she thought she had the right to do so in light of the fact that he was verbally attacking her in a personal manner. The Court was not necessarily convinced by this explanation.

The Court noted that the board member was responsible for explaining the OMA policy to the public in attendance at the meeting, reminding members of the public of their allotted time prior to the commencement of their speaking, and tracking the time each individual spoke. The Court further noted that the board member silenced those individuals at the public meeting that were critical of her, which gave rise to an inference that she may have intentionally violated the OMA. The Court remanded the case so that it could be determined whether the township official was genuinely mistaken about the time that had been allotted to each individual, or whether her violations of the OMA were intentional and subject to penalty.

It is important that members of any township board be aware of the Open Meetings Act and what it requires. Board members should also remain calm and adhere to policies in light of criticism. We further point out this case does not prohibit an official from maintaining a safe environment and limiting hostility. Zoran v Twp of Cottrellville, Court of Appeals (August 25, 2015) (unpublished).

Municipalities Who Accept Responsibility for Enforcing the Construction Code Face Increased Exposure

The Michigan Stille-Derossett-Hale Construction Code Act requires construction within the State to meet a number of applicable construction codes. The Construction Code Act is administered and enforced by the Director of Licensing and Regulatory Affairs, unless a governmental subdivision such as a township elects to take over that responsibility. Under the Construction Code Act, building inspection fees received during the building permit process are to be placed in a certain fund. A local municipality enforcing the Construction Code Act, however, was placing the fees received from building inspections in the general fund. The Michigan Home Builders Association challenged the placement of the funds. While typically it was believed that any violations of the Act were to be handled with the administrative procedures provided in the Act, the Michigan Supreme Court handed down a decision that significantly alters legal liability for those municipalities who have either assumed, or are considering assuming, this responsibility. The Court found that a cause of action could be brought in a civil court under the Construction Code Act against the enforcing municipality. While the Court never determined whether the City’s placement of building inspection fees violated the Act, this decision does show that municipalities that assume enforcement of the construction code may now be exposed to civil suit for declaratory or injunctive relief in connection with alleged violations. Mich Assoc of Home Builders v City of Troy, Supreme Court (June 4, 2015).

Township Immune from Liability for Sewage Discharge

The Michigan Governmental Tort Liability Act renders government agencies immune from tort liability when performing government functions, unless an exception applies. One such exception is for sewage disposal system events, in which a municipality can be found liable for negligent maintenance, operation, or repair of its sewer system. Since this is a rather recent amendment, we address a recent decision by the Court of Appeals that outlines the type of practices that can limit exposure under the exception.

In this instance, the Court examined the actions of a township and found that the township had satisfied the statute and was not liable for sewer system overflows. The township’s well documented procedures and frequent inspections of the sewers were an important part of the evidence leading the court to find that the township was immune from liability. Some of the best practices from this case that can help a township avoid liability include the following:

1. Regular inspection of sewer and pump stations, preferably once a week or more.
2. Being aware of power outages, and conducting inspections of sewer and pump stations located in areas without power to ensure backups are functioning.
3. Testing auto-dialer equipment prior to large storms and/or heavy precipitation to ensure that it functions properly.
4. Promptly repairing any defects discovered during inspections.

In light of this decision, it is important that municipalities have their public works departments review existing policies and procedures to ensure that they are adequate to discover sewer defects. We also encourage townships to work with their legal counsel in formulating additional or supplementary policies. Kerbyson et al v Elba Township, Court of Appeals (July 9, 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.