Our Feed

Many local governments are missing key policies and ordinances that could dramatically improve the general welfare of the community. Far too many local governments are leaving valuable tools on the table. These missed opportunities can impact everything from effective land use management to fostering transparency in local government. Drawing from our extensive work with municipalities from throughout the State of Michigan, we have identified seven fundamental policies and ordinances that can dramatically improve your community’s operations, protect your residents’ interests, and streamline your administrative processes. Whether you are looking to update existing policies or implement new ones, consideration of these seven essential tools will help you build a stronger community. This month’s E-letter identifies seven essential tools every Michigan municipality should consider, along with practical guidance for putting them into action.

Public Nuisance Ordinance: The First Line of Defense

Picture this: A resident is accumulating junk vehicles on his property at a rapidly increasing rate to the point that it is becoming a real eyesore for the surrounding neighbors. Without a comprehensive public nuisance ordinance, a municipality that desires to address these concerns may be unable to do so.

Fortunately, Michigan law empowers local governments to protect their communities by allowing them to adopt robust regulations to advance the interests of public health, safety, and welfare. See, e.g., MCL 41.181; MCL 125.73; MCL 117.1 et seq.; MCL 78.1 et seq.; MCL 61.1 et seq. A well-crafted public nuisance ordinance serves as your municipality’s foundation for addressing a wide range of community concerns—from excessive noise and blight to activities that are generally dangerous such as shooting of fireworks or keeping wild animals.

While many Michigan municipalities have some form of a nuisance ordinance in place already, many are outdated or lack the comprehensive scope needed to address evolving issues. Some additionally lack penalties and enforcement proceedings that are up to date with current court processes. We encourage all municipalities to regularly review their regulations concerning public nuisances to ensure that the activities constituting a nuisance are clearly explained, there are specific enforcement mechanisms in place, and penalties that empower a municipality to compel compliance in the most efficient manner.

For example, we recommend municipalities ensure that they are authorized to penalize ordinance violations as municipal civil infractions. See MCL 600.8701 et seq. The municipal civil infraction process is a specific way for a municipality to enforce its ordinances and empowers a municipality to proceed through the judicial system to the extent necessary to obtain an order that requires compliance with an ordinance.

Adopting or updating public nuisance ordinances is a productive way to ensure your municipality has the tools it needs to maintain community standards and protect the general welfare.

Zoning Ordinance: A Look Into the Future

How might your municipality look in 10, 20, or 30 years? The easiest way to answer this question would be to review your community’s master plan, which provides a clear look into the future of land use in your community. How might your municipality achieve those future land use goals? A strategically crafted zoning ordinance.

Consistent with a master plan properly implemented under the Michigan Planning Enabling Act, the Michigan Zoning Enabling Act, MCL 125.3101 et seq. allows municipalities to implement future land use goals through adopting current land use regulations. A strategically crafted zoning ordinance helps control growth while maintaining the character of your community, ensuring property values remain stable by situating compatible land uses near each other, and fostering economic development in underdeveloped areas.

Take for instance a community interested in creating additional housing opportunities while maintaining the general character of the residential areas of the community. A strategically crafted zoning ordinance could allow apartment complexes in specific areas of the community situated near commercial uses or other compatible land uses while leaving intact the general residential areas of the community. In the same sense, if a community sought to create more development around a residential area, a strategically crafted zoning ordinance may allow for commercial land uses and development adjacent to otherwise residential areas. Whatever it is that your community desires to effectuate, a well thought out zoning ordinance may help it achieve its goals.

If your community has adopted zoning regulations, which we acknowledge may not be suitable for every community in Michigan, zoning should remain a priority and focus for the community. Zoning uses and future land use goals will be an evolving process that will require amendments and, potentially an overhaul, or existing zoning regulations.

Zoning Review Fee Schedules: Ensure Fair Cost Recovery

Michigan zoning law explicitly authorizes a municipality to charge a property owner for zoning review. MCL 125.3406; see also Kircher v City of Ypsilanti, 269 Mich App 224, 231-232 (2004). But Michigan law is equally as clear that amounts charged for zoning review must be a legitimate fee and not a hidden tax.

In Bolt v Lansing, 459 Mich 152 (1998) the Michigan Supreme Court defined three criteria to determine if a fee charged is legitimate:

• The fee must serve a regulatory purpose,
• the fee must be proportionate to the necessary costs of the service, and
• the fee must be voluntary.

Too many municipalities go through the zoning review process without an established fee schedule, which only invites questions about the legitimacy of fees charged for zoning review. In addition to zoning application fees, Michigan cases have similarly upheld municipalities to charge escrow fees to ensure that the applicant is paying for all consultant and review costs incurred by the municipality.

Our recommendation is for every municipality to clearly define the cost of zoning review and escrow fees through an established fee schedule.  A proper fee schedule should clearly provide what the cost for review is with specific consideration made prior to establishing costs as to the staff time and resources that are required through the review process. Municipalities should also regularly review their fee schedules as outdated schedules may result in inadequate cost recovery for zoning review.

Code Enforcement Policy: Gaining Compliance with Ordinances

Any ordinance is only as effective as the ability to enforce its terms. Yet many municipalities find themselves in a reactive cycle of inconsistent enforcement, frustrated residents, and uneven outcomes. Without clear enforcement procedures, your municipality may struggle with questions like: How do I submit a complaint? How do violations get investigated? Why are some not investigated for the same thing another resident is being investigated for?

Although a specific code enforcement policy is not required by law, municipalities can consider adopting a formal code enforcement policy that at a minimum address the following:

• Designated Authority: Clearly identify your code enforcement officer(s) and their scope of authority
• Investigation Protocol: Establish uniform standards for investigating violations and processing complaints
• Complaint Management: Create a transparent system for receiving, tracking, and responding to written complaints
• Progressive Enforcement: Define a step-by-step approach that encourages voluntary compliance before taking legal action

A comprehensive code enforcement policy can assist in resident transparency and assist municipal staff with carrying out the desires of the legislative body. On that note, any code enforcement policy should reflect your community’s values, resources, and priorities while maintaining consistent standards.

Michigan Freedom of Information Act: Establishing Procedures and Guidelines

Municipal officials understand the importance of transparency in government operations. The Michigan Freedom of Information Act (the “FOIA”) is intended to provide the public with full and complete information related to the affairs of the government. The FOIA—which applies to all public bodies in the State of Michigan—requires the establishment of “procedures and guidelines” with a “written public summary” that is “written in a manner so as to be easily understood by the general public.” MCL 15.234(4). Public bodies that maintain an official internet presence must “post and maintain the procedures and guidelines and its written public summary on its website.” MCL 15.234(4). A public body that does not establish procedures and guidelines or create a written public summary is not relieved of its duty to comply with the FOIA. MCL 15.234(4). More importantly, a public body not in compliance with these requirements could impact charging good-faith deposits or fees in response to FOIA requests. MCL 15.234(4). These efforts will not only help promote government transparency but also assist in cost recovery in relation to FOIA requests.

Conflicts of Interest Policy: Avoiding Even the Appearance of Impropriety

Every municipality understands the phrase “conflicts of interest” and likely requires disclosure of the same by officials and employees. But what exactly constitutes “conflicts of interest” under Michigan law?

Michigan law provides various sources for defining conflicts of interest in general and some specific contexts. See, e.g., MCL 15.181 et seq. (explaining incompatible offices); MCL 15.321 (contracts of public servants with public entities); MCL 15.342 (generally explaining standards of conduct); MCL 125.3601(7) (stating that a member of a Zoning Board of Appeals may be removed for malfeasance for failing to recuse themselves where they have a conflict of interest); MCL 125.3815(9) (stating a member of a Planning Commission may be removed for malfeasance for failing to recuse themselves where they have a conflict of interest). Michigan court cases through the last century have further identified guardrails for avoiding conflicts of interest that can impact municipal decisions.

Although various sources exist for “Conflicts of interest”, a municipality can best be served by adopting its own formal policy that sets the parameters for when conflicts of interest arise within its community. A well thought out and detailed “conflicts of interest” policy that defines what constitutes a conflict of interest helps guide officials and employees. And such policy fills the gaps left by Michigan law by explaining what constitutes a conflict when disclosure is required, and how municipal officials and employees handle conflicts. Such a policy should address common situations like financial interests, family relationships, and business connections, among others. Clear procedures should be included for disclosure, recusal, and documentation. The end result of adopting a formal policy is clarity as to when and why a conflict of interest exists, which will inevitably help protect public officials from unwarranted criticism and explain to the public the rules that apply.

Rules of Order for Public Meetings: Bringing Structure to Public Meetings

The Michigan Open Meetings Act, MCL 15.261 et seq. (the “OMA”) aims to promote government accountability by requiring that all meetings of a public body at which a quorum is present for the purpose of deliberating toward or rending a decision be open the public.

The OMA contains a host of specific legal obligations for public bodies and officials related to meeting procedures, notice requirements, emergency meetings, closed sessions, and the keeping of minutes, among other legal requirements. However, notably absent from the OMA are specific procedures or expectations related to facilitating the orderly conduct of public meetings. For example, the OMA does not speak to how motions should be made or how a board member can appropriately raise a point of order.

In the absence of such rules provided by law, many municipalities simply have no guidelines which are followed. Fortunately, municipalities are free to enact rules related to how public meetings are to be conducted so long as there are no conflicts with the OMA. See MCL 15.261(2).

Our practice of law has taught us to recognize that good procedures are often at the core of effective governance. We find that established rules of order for public meetings foster constructive deliberation and debate. Rules of order may specifically address procedures for debate, establishing/amending the agenda, bringing points of order, the parameters of public comment, addressing and dealing with disorderly conduct, and motion procedures, among many other topics.

Sidenote: Robert’s Rules of Order is the foremost authority on parliamentary procedure and it is common for a municipality to formally adopt Robert’s Rules of Order as established rules of order. We note that due to the breadth and complexity of Robert’s Rules of Order, municipalities should be thoughtful and cautious in incorporating in all aspects and a piece-meal approach may be more appropriate if the municipality is not inclined to draft and adopt its own rules of procedure.

Bonus Tip: Develop Helpful Resources for Residents!

The focus of this e-letter has been on encouraging municipalities to consider ways in which they can take formal action to adopt ordinances or policies to further service to constituents and protect the general welfare of the community. But there are a multitude of informal ways a municipality can help its residents navigate local government. Here are just a few examples of how a municipality can be proactive in helping its residents:

• Draft a Zoning Flowchart: Create visual guides showing the timeline and process for site plan review, variance requests, rezoning applications, special land use permits, and all other zoning procedures.
• Post FAQs Documents: Share answers to common questions related to public meetings, code enforcement procedures, election information, and anything else that commonly is asked by residents.
• Update (or Create) Website: In this digital age, the fastest and most efficient way to inform residents of what is happening in local government is to have an up-to-date website that is user-friendly.
• Publish Newsletters: Update your constituents through newsletters that highlight what is going on in your community and make the newsletter publicly available.

Developing helpful resources for residents can significantly improve the interaction between a local government and its residents.

By: David Szymanski

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.