Michigan Public Cemeteries: Municipal Control & Liability

Yes and additional guidance is coming. Under the Inflation Reduction Act of 2022  local governments may receive direct payment of tax credits as cash subsidies to fund clean energy-related assets. Three sections of the Inflation Reduction Act grant federal support for some assets contributing to solar fields, geothermal heating, and clean fuel for commercial vehicles….

In this month’s E-Letter we will consider conditional use permits, also known as special use permits, and how your township can create clear decisions in which you can place confidence. First, we will quickly discuss what a conditional use permit is. Then we will cover several best practices to “Do” while also highlighting common pitfalls…

Although townships will often navigate “routine issues,” every so often a township will be faced with a unique issue that may not be adequately addressed by a township ordinance. For example, there may be new development trends for a particular land use in a region that is not provided for in a township’s zoning ordinance….

When a parcel with an existing special assessment is split, the Michigan Land Division Act authorizes a township assessor to apportion unpaid assessments between the newly created parcels under Section 53 of the Michigan General Property Tax Act. See MCL 560.109(1)(i)(ii). Similar to before any division, the apportioned special assessments are treated as liens on…

In this month’s E-Letter we discuss whether a township can enforce its ordinances without involving a court. Often zoning ordinances, nuisance ordinances, and other police powers will purport to contain a “self-help” provision stating that a township can enforce an ordinance violation simply by giving notice to a landowner and an opportunity to be heard….

Yes. A township board typically consists of a supervisor, treasurer, clerk, and two trustees. However, if your township has a population greater than 5,000 at the most recent census (or more than 3,000 registered electors) then two additional trustees may be added, bringing the board total to seven individuals. See MCL 41.70.

Yes. The Michigan Planning and Enabling Act seeks to have municipalities that have exercised their zoning powers to conduct a review of their master plans every five years. Thus, it will be of value for you to look at reviewing your master plan consistent with the Planning and Enabling Act. Many townships conduct this process…

Throughout the last year, the Michigan Court of Appeals and the Michigan Supreme Court have decided several decisions that will have a notable impact on townships and municipalities in general. Given the large number of recent municipal cases, this E-Letter could not cover all recent municipal as a whole. However, our December 2022 E-Letter addressed…

No. Whether a special use permit is approved by the Township Planning Commission or recommended by the Planning Commission with approval by the Township Board depends on a Township’s own zoning ordinance. The Michigan Zoning Enabling Act, Section 504, only requires that the approval standards be set forth in the Township zoning ordinance. Section 502…

In the last year, the Michigan Court of Appeals and Michigan Supreme Court have issued multiple decisions that impact townships. Although this month’s E-letter could not cover all of those decisions, the E-Letter discusses five very notable decisions based on their substantial impact on townships not only in 2022, but in future years to come….

Nomenclature. A SUP is a “Special Use Permit.” A CUP is a “Conditional Use Permit.” A SLUP is a “Special Land Use Permit.” Each name captures the same idea. These various “extra” land uses are authorized in the Michigan Zoning Enabling Act, MCL 125.3502(1), however, there is no explicit definition or requirement to use a…

In this E-Letter we will explore the new and expanding area of industrial hemp. Along with the growth of medical and recreational marihuana products, there has been a rekindling of interest in new and traditional uses for hemp plants, in large part due to the popularity of CBD products. We will cover the different state…

Yes, but abandonment is a fact-by-fact basis. Many zoning ordinances will address the principle of abandonment at least with respect to lawful nonconforming uses. The discontinuance of nonconforming uses is often commonplace because of explicit authorization for local municipalities to address such circumstances in the Michigan Zoning Enabling Act: “(2) The legislative body may provide…

A change to state law may soon mean that Michigan employers of all sizes (including townships!) will be required to provide paid sick time to employees. For many Michigan townships, this will be the first time that a state-mandated paid leave will apply to their operations. This E-Letter will discuss a recent Michigan Court of…

Yes. The FOIA states that “if the FOIA coordinator knows or has reason to know that all or a portion of the requested information is available on its website, the public body shall notify the requestor in its written response that all or a portion of the requested information is available on its website.” The…

While local governments have constitutional and statutory authority to regulate matters within their jurisdictions, those powers are not without limits. Governmental regulations can be called into question when they implicate the First Amendment. This E-Letter will discuss recent court decisions dealing with the First Amendment and how those cases could pertain to your municipality. Those…

Not exactly. At-will employment is the default form of employment in Michigan and applies to almost all non-union employees in the state. At-will employment allows either the employer or the employee to terminate the relationship at any time and for almost any reason. Employers may not terminate employees (even those who are at-will) for unlawful…

Public employers (like townships!) are more limited than private employers in the ability to discipline or even terminate their at-will employees, including for what they say or post on social media outside of work hours. The 1st and 14th Amendments to the US Constitution guarantee that federal, state, and local governments will not interfere with…

No. The common township special assessment statute, Act 188 of 1954 (“Act 188”), allows property owners to submit petitions to a township for the purposes of proceeding with a project (e.g., road paving, sidewalks, and streetlights, among many others). See MCL 41.723(4). Unlike other statutes that mandate action upon receipt of a petition (e.g., the…

In Michigan, townships often use special assessments to fund a myriad of improvements ranging from building sidewalks, treating inland lakes for invasive aquatic weeds, and improving roadways to providing police and fire protection. The most common statute for township special assessment projects is Act 188 of 1954, MCL 41.721 et seq., (“Act 188”) which authorizes…

The rule of thumb is 15 business days from the date the request is deemed received under the FOIA, Act 442 of 1976, MCL 15.231 et seq. The FOIA requires a public body to respond to a request for public records within 5 business days after the public body receives the request by either: (1)…

Does your municipality’s Zoning Ordinance regulate off- and on-premises signs? The constitutionality of these types of signs has been an open question since 2015 when the United States Supreme Court issued a decision regarding content-based restrictions on signage in Reed v Town of Gilbert. The Supreme Court recently clarified the scope of its holding in…

That’s excellent that you are working on reviewing your sign ordinance. Many ordinances still contain content-specific regulations that would not pass constitutional muster, and townships should be reviewing and considering how to revise current provisions to align with First Amendment protections. The constitutionality of on-premise and off-premise sign distinctions has been an open question since…

Almost four years have passed since Michigan voters approved the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”), which became effective December 6, 2018. The MRTMA authorized adult-use marihuana within Michigan, including licensure to operate adult-use marihuana establishments. Since the enactment of the MRTMA, the legal landscape continues to change as municipalities work to implement…

This is a great question! The Michigan Zoning Enabling Act (MZEA) and Michigan Planning Enabling Act (MPEA) both specify that a conflict of interest will require a Commission member to abstain from voting on a matter. See e.g. MCL 125.3601(7) (stating that a member of a Zoning Board of Appeal may be removed for malfeasance…

Townships are public governmental entities. As such, Townships have practical and legal implications that require them to transact business in the open and with transparency. In transacting Township business, Townships frequently are advised by their township attorneys. These attorneys provide advice through various communications, which may include emails, letters, and texts. Townships may then internally…

Today, the Attorney General released an opinion determining that Title II of the Americans with Disabilities Act (“ADA”) requires public bodies subject to the Open Meetings Act (“OMA”) to provide reasonable accommodations to allow elected officials and members of the general public with a qualifying disability to fully participate in meetings if the requirements of…

Yes, recent cases and legislation have impacted the foreclosure process. In a published Court of Appeals decision, the Court analyzed the retroactive application of changes to the tax foreclosure process that occurred under the Michigan Supreme Court’s decision in Rafaeli, LLC v Oakland Co, 505 Mich 429 (2020). Under Rafaeli, our Supreme Court explained foreclosing…

There is something for everyone this month as our E-letter recaps several cases of interest to municipalities. We review the taxes available for levy to charter townships, the importance of zoning definitions and when a land use may become abandoned, the proper determination of when plaintiff must file a sewer overflow case, how to properly…

Unfortunately, all indications suggest that COVID-19 will continue to play a major role in your township’s operations in 2022, from conducting meetings to setting employment policies.  Read on for more information about how you can best prepare to deal with these ongoing, ever-changing developments. Open Meetings Act: Limitations on Meeting Electronically The Open Meetings Act…

False. As presently written, after December 31, 2021, public bodies subject to the OMA may only accommodate the absence of members who qualify for military duty accommodation.

No. Neither a general law nor charter township is required by law to hold a public hearing for the adoption of a general police power ordinance. Both of these ordinances would be considered that type of ordinance. Instead, a general law township can introduce and adopt such an ordinance at a single meeting without a…

Approximately 13% of the land in Michigan is owned by State and local government units. With Townships being among those owning a vast amount of property, it is not uncommon for Townships to engage in the purchase of property for the benefit of their local communities or the sale of property not needed for municipal…

Generally, yes. The Michigan Zoning Enabling Act codified the principle of lawful nonconforming uses in MCL 125.3208. The Act provides: “If the use of a dwelling, building, or structure or of the land is lawful at the time of enactment of a zoning ordinance or an amendment to a zoning ordinance, then that use may…

Should you be worried about annexation of your township’s territory to an adjacent city? Understanding the process of annexation and what you can do about it will help you answer that question. What is Annexation? Annexation is the process by which territory moves from a township to a city (village annexation is a separate process…

Yes. Townships can explore implementing civil infraction notices and citations as penalties. Townships using civil infraction notices and citations have two potential avenues to provide enforcement without involving the Township attorney with each issue. For the first option, the Township can establish a violations bureau that allows the Township to issue municipal civil notice violations…

Generally, no. The Michigan Zoning Enabling Act addresses the approval of special/conditional land uses and site plans. Within each Township that has zoning, the Township has adopted an ordinance to administer its zoning. Township zoning ordinances will always allow for a public hearing for special/conditional use approvals. However, site plans are not required to be…

Recent federal court decisions have redefined the limits of the First Amendment’s protections of signs across the country and in Michigan, so municipal review of such regulations is certainly timely. In light of Reed v Town of Gilbert, Ariz, a recent sign decision, Justice Kagan of the United States Supreme Court opined that “many sign ordinances ….

Attention FOIA Coordinators! Have you ever received an extensive Freedom of Information Act (“FOIA”) request that leaves you wondering how you should respond? As the individuals tasked with answering your municipalities’ requests for information, you may be questioning whether you even have adequate time or resources to answer large-scale requests. This e-letter will address how…

(1) What is attorney-client privilege? Attorney-client privilege protects certain communications made between the Township and your Township attorney from disclosure to members of the public, hostile individuals or outside entities. Not all communications between the Township and the Township attorney are subject to attorney-client privilege. The communication must be intended to be confidential, and concern…

The Americans with Disabilities Act (“ADA”) and its Michigan counterpart, the Persons with Disabilities Civil Rights Act (“PWDCRA”) are well-known but often misunderstood laws that can have serious impacts on your township’s operations. From employment law landmines to the confusion surrounding service animals, the ADA is filled with pitfalls that can all too easily result…

Section 6.4 of Michigan Regulation and Taxation of Marihuana Act (“MRTMA”) states “[a] municipality may charge an annual fee of not more than $5,000 to defray application, administrative, and enforcement costs associated with the operation of the marihuana establishment in the municipality.” Many municipalities apply this section of the MRTMA to the application and review…

Yes. An overlay district sits on top of an existing zoning classification and permits additional uses. Overlay districts are particularly helpful in providing specialized zoning requirements for unique land uses from utility scale solar or windfarms to intensive livestock or commercial farming operations to marihuana facilities or establishments. With a renewable energy overlay placed in…

Recent cases from the Michigan Supreme Court and the Court of Appeals have affirmed the authority of townships to regulate Primary Caregiver growing operations under the original Michigan Medical Marihuana Act from 2008 (“MMMA”). Under the MMMA, a caregiver can grow up to 72 plants with minimal state regulation on their activity. Although less intensive…

On its face, a local ballot initiative seems like a straightforward process: petitions are circulated, signatures are counted, and ballot language is approved; in reality, there are many factors to consider. Local ballot initiatives are created by individual statutes that do not share uniform processes and requirements. Further, the Michigan Election Law (“Election Law”) imposes…

The OMA requires public bodies (including township boards) to establish certain procedures to accommodate the electronic attendance of a member(s) of the public body due to military duty, a medical condition, or a statewide or local state of emergency. These procedures set forth how a township will accommodate the electronic attendance, how the absent member(s)…

Now that Notices of Assessment have been issued and March Boards of Review have been completed, Townships should start preparing to defend 2021 property tax appeals. This E-Letter (and our May Webinar) will address the “what,” “when,” and “how” for Townships to be prepared to receive, handle, and defend property tax appeals that are filed…

Renewable energy projects including utility-scale wind and solar energy developments are becoming more and more prevalent in Michigan. In response to the coronavirus pandemic, Congress passed the Taxpayer Certainty and Disaster Tax Relief Act of 2020 in late December. This Act contains several provisions that will continue the development of renewable energy projects in Michigan….

Act 188 of 1954 (“Act 188”) is a statute that many townships use to finance many improvements using special assessments ranging from lake improvements to rubbish collection. See MCL 41.722. Although Act 188 requires townships to approve project costs, there are times when a township may collect more in special assessments from property owners than…

Generally, yes. Typically, a Township’s Zoning Ordinance will provide for a written standard that must be applied when considering a request for a variance. Note there are certain criteria for variances established in the Michigan Zoning Enabling Act, even if specifics are not provided in the Township’s Zoning Ordinance. See MCL 125.3604. The Zoning Board…

Many townships rely heavily on independent contractors for township services. Whether the township uses independent contractors to manage and maintain its cemetery, mow its parks, or clean the township hall, independent contractors are important service providers for many townships. Independent contractors are individuals who operate their own business and offer their services to the general…

True Cash Value and Market Value have been determined by Michigan Courts to be synonymous terms. The tax statute uses the term True Cash Value. True Cash Value means the price a willing buyer and willing seller would agree to through an arms-length transaction of the subject property as of tax day. Tax day is…

The State Tax Commission (“STC”) is a three-member commission appointed by the Governor. The STC is the authority charged with supervising the administration of the property tax laws in Michigan. In 2020, the STC released bulletins that provide guidance to assessors of local units of government. In this E-Letter we discuss and highlight Bulletin 08:…