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The challenges of zoning and land use regulation continue to change as the law develops. Some of the recent legal developments stem from new statutes. Others derive from technological advancements that pose new issues for regulation and for the interpretation of old statutes to new and changing concepts. Still other changes result from the unique economic pressures of our current time. This E-Letter is the first of a two-part series to bring you up–to-date on recent zoning and land use law developments.

Regulating Cell Towers Just Got a Lot Harder

Recent developments in federal and state laws relating to cell tower regulation have made it more difficult and more expensive for townships to regulate these uses. The laws focus on maintaining and further supporting a nationwide communication system, including the ability for cell phone service providers to remedy gaps in coverage. Cell phone companies can remedy gaps in coverage by constructing new cell towers, and the township’s review of requests to construct cell towers is somewhat limited. If a township denies a request, unless it is able to back up its denial with detailed and expert-supported evidence, the denial may be considered invalid under federal law as a prohibition against a service provider’s ability to provide wireless services. To make matters worse, a new state law limits the fee that a township may charge when reviewing a cell tower request, making it harder for the township to make the needed case without a significant financial investment of township funds.

Under 47 USC 332, any decision by the township to approve or deny a request to construct a cell tower “shall be in writing and supported by substantial evidence contained in a written record.” Cell tower denials are closely scrutinized by the courts to determine whether the township’s written decision to deny the construction is supported by substantial evidence. Although decisions made by townships are typically based on additional evidence and documentation, the complexity of the technology and the state and federal regulation governing this area means that townships have to be very specific and detailed in reviewing applications related to cell tower construction to meet the substantial evidence standard. The evidence must be that which is relevant and would be accepted as reasonable to support the township’s decision.

The law in this area is still is developing, but courts have provided some guidance on what kind and quality of evidence townships must offer to support their decisions. Especially suspect and subject to reversal are decisions that merely state, without supporting evidence, conclusions such as:

• The aesthetics of the surrounding neighborhood would be adversely affected;
• A tower smaller than the one proposed could be erected;
• The cumulative effect of numerous towers in a residential area is aesthetically displeasing; or
• The cell provider has provided insufficient evidence to build the tower.

If the aesthetics of the surrounding neighborhood are affected, a township must have evidence, such as expert reports, that establish the concerns. The same is true for suggestions that a smaller tower would suffice. Since many townships require that multiple antennas must be able to be attached to the same tower, the range of permissible tower heights may be predetermined by technology. Thus, the township must review the evidence provided by the cell provider, as well as any experts the township desires to hire, to determine whether the tower height is reasonable. A smaller tower may not be feasible.

Likewise, to conclude that the cell provider has provided insufficient evidence, the township must point to specific reports or documents provided by the cell provider that fail to address certain requirements of the township’s ordinance(s). Merely relying on generalized comments from the public that essentially boil down to “not in my backyard” is improper and will not be upheld by the courts.

The township also may not base a denial on the alleged environmental effects of cell tower emissions (EMF) if the cell tower, receivers and facility comply with federal regulations. Townships are expressly excluded from regulating cell towers based on EMF under federal law.

Townships are prohibited from regulating the construction of cell towers to the extent that the regulation effectively prohibits personal wireless services. The courts have construed this to mean that the denial of a single application to construct a cell tower can effectively ban personal wireless service. For example, if a township denies an application from a cell provider for a tower to remedy a cell service gap, the township has effectively denied personal wireless service to that area. To complicate matters, personal wireless service is considered for each carrier. So, even if Sprint has cell coverage in the area, T-Mobile has the right to construct a tower to remedy its own cell coverage gap, provided T-Mobile cannot place its equipment in a less intrusive alternate location. To prove that an alternate location does not exist, the cell provider must show that it has made a good faith effort to identify and evaluate less intrusive alternatives, but the alternatives would not resolve the coverage gap.

A new Michigan statute, MCL 125.3514, compounds the challenges to townships for regulating cell towers through zoning ordinances. That law now provides that new wireless communication equipment can be installed on existing towers as a permitted use (i.e., without a special use permit) if the new equipment does not:

• Increase the original tower height by more than 20 feet or 10%;
• Increase the width of the original tower by more than necessary to permit the installation of the new equipment; or
• Increase the original tower facility to an area greater than 2,500 square feet.

If the new equipment does not meet any of the three requirements listed above, the new equipment will be subject to special use approval. The application for special use permit must include a site plan and any additional supporting materials required by the township’s zoning ordinance.

The new law provides an expedited timeline for the application process:

• Upon receipt, the township body responsible must determine if the application is administratively complete within 14 business days and notify the applicant in writing what additional information is necessary to make the application complete, or the application is deemed to be complete.

• Once the application is complete, the township body responsible must approve or deny an application for new equipment on an existing tower within not more than 60 days, and must approve or deny an application for a new tower within 90 days, or the application is deemed approved.

Although state law does not prohibit township regulation of new cell towers, any application fee cannot be more than the reasonable costs to review and process the application, not to exceed $1,000. This means townships are prohibited under state law from collecting additional fees that may be necessary to cover the township’s costs of consulting with experts to properly review the application. This further complicates matters for townships reviewing applications since (as discussed above) federal law requires that townships base approval or denial of a request to construct a cell tower on substantial evidence, preferably submitted by experts.

As this area of law develops, townships must carefully support any cell tower denials by pointing to substantial evidence. Townships should also review their current zoning ordinances and ensure that the district(s) currently permitting towers are the areas where the township wants cell towers to be constructed, since it is now more difficult to rely on the special use permit process to regulate where towers will be located. T-Mobile Central, LLC v West Bloomfield Charter Twp (Federal 6^th Circuit Court of Appeals, 2012).

Preserving Your Rural Character

With the long economic slump, it has recently been less common to see courts fights over growth and development. However, as growth and development resumes, townships may be pressured to rezone parcels classified as a low-density land-use, such as agricultural and large-lot single family, to more dense uses. For example, developers may argue that the highest and best use of their land is not agricultural, but some higher density use.

Rezoning a parcel affects the character and identity of the area, and townships have a legitimate government interest in preserving the agricultural and rural nature of their communities through zoning classifications. The courts have found that a township has a valid governmental interest in limiting density to preserve rural character, natural features, availability of open areas and preserving areas for future infrastructure and public improvements.

Townships are also not prohibited from creating a zoning classification in their zoning ordinance regarding higher-density residential use, but not yet designating any property within the township as zoned for that use. This permits townships to determine, based on growth and the interests of the community, when the higher-density zoning classification should apply in the future. DF Land Development, LLC v Ann Arbor Charter Twp (Michigan Court of Appeals, November 17, 2011).

Multiple Lawsuits Challenging Township Action

When the township is sued in court, all claims by the plaintiff are joined generally in one suit against the township. However, there are instances where a property owner may be able to bring more than one suit challenging a township’s action. For example, when a property owner appeals a township board decision to deny a special use permit to the circuit court, it may also be possible for that individual to later challenge the township’s decision on constitutional grounds in a second action before the circuit court.

This is because in an appeal to circuit court, the court’s review is limited to the record presented before the township. This record includes the documents submitted and reviewed by the township at the hearing, minutes of the proceeding and the township’s expert’s reports. The court reviews the record and determines whether substantial evidence supports the township’s decision.

By contrast, actions alleging constitutional claims, such as substantive due process or equal protection claims, are not limited to the record made before the township. These claims can be filed in circuit court as an “original” action, separate from an appeal. Townships should carefully analyze the second action, however, to ensure that it is not re-litigating claims that were raised in a prior appeal. Such previously-litigated claims may be subject to dismissal in the second action. AM Rodriguez Associates, Inc v Village of Douglas (Michigan Court of Appeals, January 10, 2012).

Regulating “Sport Shooting” Ranges

The Sport Shooting Ranges Act (SSRA), MCL 691.1541, provides shooting ranges with protection from nuisance lawsuits based on complaints by other owners in close proximity to the shooting ranges. The SSRA was amended in 1994 to further exempt then-existing shooting ranges from local zoning ordinances.

The SSRA specifically protects any “person who owns or operates or uses a shooting range that conforms to generally accepted operation practices . . . .” The term “sport shooting range” has been defined as “an area designed and operated for the use of archery, rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, or any other similar sport shooting.” The Court of Appeals recently interpreted the SSRA to govern only ranges for “diversion or recreation” purposes, leaving any range that also had business activities unprotected by the SSRA.

Use of a sport shooting range for business or commercial purposes includes using the range to test firearms for various companies and to instruct students in return for payment. These ranges are not protected by the SSRA’s exclusion from local zoning. Townships dealing with sport shooting ranges should assess the purpose of the range. If the range is being operated for business or commercial purposes, a township’s zoning ordinance and nuisance ordinance will apply. Since shooting ranges can cause numerous complaints, it is important that the township first determine whether the range is protected by the SSRA before any action is taken.

The Michigan Supreme Court heard oral argument on this matter on April 11, 2013, and at the time of this writing an opinion by that Court has not yet been issued. Addison Twp v Barnhart(Michigan Court of Appeals, April 10, 2012).

Zoning Ordinances Can Regulate Liquor Establishments

Townships retain their ability to regulate businesses that sell alcoholic beverages as an ancillary use (i.e., not the principal use of the business). The Michigan Liquor Control Code provides for these types of businesses to have merchant licenses, which permits the license holder to sell packaged beer and wine. The business must satisfy all local ordinances before the permit will issue. If the local zoning ordinance requirements are not met, the license holder will be notified by the liquor control commission that the permit is denied. The Liquor Control Code explicitly provides that an application for a liquor license “shall be denied if the commission is notified, in writing, that the application does not meet all appropriate … local … zoning … ordinances …”

A township’s zoning ordinance can place certain requirements on business establishments and these requirements are not preempted by the Michigan Liquor Control Code. For instance, the zoning ordinance can require automobile service stations that sell alcoholic beverages to:

• Not sell alcoholic beverages within 50 feet from where vehicles are serviced,
• Not have drive-through operations,
• Meet minimum floor area and lot size requirements,
• Have frontage on a major thoroughfare and not be located in a residential area; and
• Limit the amount of alcoholic beverage inventory.

Additional areas of local concern may include the sale of alcoholic beverages in buildings with drive-through windows, the minimum building area of buildings at which alcoholic beverages are sold, or the number of parking spaces a building requires. But in regulating the land uses, the township must not directly conflict with any requirements expressly mandated by state statute.

In regulating businesses that sell alcoholic beverages, the townships must not create unreasonable classifications within the zoning district, such as permitting service stations to sell alcoholic beverages at a drive-through window in one part of a zoning district, but then prohibiting it in another part of the same zoning district. The township must treat similar business types based on the same standards within the same zoning district. For example, all automobile service stations within the commercial zoning district must be treated on the same terms. The township must also have a reasonable governmental interest in treating the business selling alcoholic beverages in the manner it has chosen. For instance, prohibiting the sale of alcoholic beverages at service stations located off of major thoroughfares is rationally related to safety concerns regarding adequate access for emergency and safety vehicles in case of an incident. Maple BPA, Inc, v Bloomfield Charter Twp(Michigan Court of Appeals, August 6, 2013).

Options for Dangerous Buildings

The incidence of dangerous and abandoned buildings has especially increased during the recent economic downturn. To address these issues, we advise our clients to use a dangerous buildings ordinance, which provides a notice and hearing process before a township-appointed hearing officer. If the building is declared dangerous under the applicable procedure, then the property owner has the opportunity to either repair the building or demolish it. If the property owner fails to comply, the township can demolish the building and charge the costs of demolishing a residence against the property in the same manner as delinquent property taxes.

Dangerous buildings also violate the state building code, which can be enforced by townships who choose to adopt and enforce the building code. This route is similar to the court procedure related to blight or nuisance abatement. Under this procedure, the township files an action in circuit court seeking a finding that the building is a public nuisance, and the building may be abated by order of the court.

Certain types of building code violations are not sufficient for a court to order a building to be demolished. Based on previous court decisions, minor building code violations, such as chipped paint, dripping faucets, improperly caulked bathtubs, improperly caulked windows, missing roof flashing, and small holes in the drywall do not create a public nuisance or a basis for demolition.

Violations that immediately endanger the health and safety of the public or the tenants of the building, however, are sufficient to merit demolition or compulsory building improvements. Examples of major code violations include exposed electrical wires, massive collections of trash and rubbish, insect and vermin infestations, falling bricks and windows, broken or missing windows, structurally unsound and collapsing walls, sanitary sewer leaks and leaking and unsafe roofs.

Acting under a dangerous building ordinance or proceeding to court for nuisance abatement has the identical result. However, using the dangerous buildings ordinance almost always provides for a less expensive and quicker solution. Since a dangerous buildings ordinance provides for notice and hearing to be handled by the township, the township can often demolish the building without court intervention. This is usually cheaper and faster than proceeding in court.

In addition, the dangerous buildings ordinance expressly allows the township to recover its costs against the property for demolition of a residence. Although the township may also be able to recover its demolition costs against the property owner under the building code court procedure, this matter is within the discretion of the court and may not be successful. Ypsilanti Charter Twp v Grove Park Home Improvement Association (Michigan Court of Appeals, March 26, 2013).

Abating Long-Established Public Nuisances

Townships are often required to pursue court action against property owners who will not comply with a township’s zoning, nuisance or blight ordinance. Regardless of the numerous municipal violation notices and citations issued by the ordinance enforcement officer, the property owner will not clean up the property until a court order demands that the property owner abate the violations. If the nuisance remains on the property even after a court order, many townships must contract for removal of the nuisance and then seek recovery of its costs against the property owner.

These ordinance enforcement complications can further increase if the property owner proves that certain objects and materials on the property are not regulated by the blight ordinance and are allowed under the zoning ordinance as a prior non-conforming use. Under these circumstances, the township’s best approach, if possible, is to prove that the owner has unlawfully expanded the prior nonconforming use. In this situation, the court has authority not only to abate the expansion of the nonconforming use, but to further order the extinguishment of the nonconforming use based on the property owner’s expansion and noncompliance. Portsmouth Charter Twp v Woys (Michigan Court of Appeals, February 9, 2012).

To be continued. “Tune in” again next month for Part 2 of our annual Zoning and Land Use Update.

— Christopher S. Patterson cpatterson@fsbrlaw.com