Introduction
Zoning is the regulation of the use of land. It is the exercise of police power intended to protect the public health, safety, and general welfare. Zoning does not create divisions of land nor does it guarantee development. Zoning constitutes an effort on the part of the designated governmental body to avoid land use conflicts between neighbors by ensuring that uses and structures are generally compatible with other uses and structures in the area. It is a means to promote the welfare of the community by guiding orderly growth.
The Michigan Zoning Enabling Act
In Michigan zoning is implemented and statutorily authorized under the Michigan Zoning Enabling Act, MCL 125.3101, et seq. (“MZEA”). The MZEA was enacted in 2006 and consolidated several prior zoning enabling acts applicable to separate divisions of government. The MZEA authorizes a local unit of government to regulate land and to create zoning districts in which it may regulate the use of land. MCL 125.3201(1). A municipality’s zoning efforts are generally comprised of two parts: (1) the zoning ordinance; and (2) the zoning map. The zoning ordinance sets out the text of the applicable regulations and the zoning map identifies the zoning districts to which the applicable section of the zoning ordinance applies. Except as allowed by the MZEA, regulations are to be uniform within a particular district. A zoning ordinance must be based upon a plan designed to promote the public health, safety, and welfare and take into account additional considerations set forth in the MZEA such as land characteristics, public transportation, natural resources, residents, and recreation. MCL 125.3203. The adoption of a zoning ordinance is significant in part because a zoning ordinance controls in the event of an inconsistency between the zoning ordinance and an ordinance adopted under any other law. MCL 125.3210.
A local municipality’s authority to regulate land use, however, is subject to certain limitations. For example, Section 208 of the MZEA allows nonconforming uses to continue if the use of the dwelling, building, structure, or land was lawful at the time of the enactment of a zoning ordinance or amendment, even if that use does not conform to the zoning ordinance or amendment as enacted. MCL 125.3208(1). Further, Section 205 of the MZEA subjects a zoning ordinance to the electric transmission line certification act, MCL 450.651, et seq., and the regional transit authority act MCL 124.541, et seq. In addition, a zoning ordinance may not “regulate or control the drilling, completion, or operation of oil or gas wells” nor may a zoning ordinance “prevent the extraction, by mining, of valuable natural resources . . . unless very serious consequences would result . . .” considering the standard set forth in Silva v Ada Township, 416 Mich 153 (1982). MCL 125.3205(2) & (3). The MZEA also sets forth certain limitations on a locality’s ability to restrict state licensed residential facilities, MCL 125.3206(1), family child care homes, MCL 125.3206(3), group child care homes, MCL 125.3206(4), airports, MCL 125.3203, and craft and fine arts instruction. MCL 125.3204.
Significantly, a zoning ordinance may not engage in exclusionary zoning, which means to “have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use . . . unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.” MCL 125.3207. The prohibition of exclusionary zoning constitutes an effort on the part of the Michigan legislature to limit land use restrictions motivated by a “Not in My Back Yard” approach.
Zoning involves three separate functions. The first is the legislative function of adopting the zoning ordinance and any amendments. The legislative function will be conducted by the law making body of the locality which is accountable to the locality’s voters. The second is the administrative function of implementing the procedures and requirements of the zoning ordinance. These activities involve the submission and consideration of applications, site inspections, and zoning enforcement. The administrative function will often be carried out by the zoning administrator and the planning commission. The third function is the quasi-judicial function relating to the appeal of administrative decisions, interpretation of the ordinance and zoning map, and consideration of variance requests. This third function is usually carried out by the zoning board of appeals.
Zoning is interconnected with and dependent upon community planning. Planning is the process of establishing and implementing a local community’s goals, objectives, and policies for growth, and development over the course of future decades. A locality that pursues a zoning ordinance must have created a planning commission responsible for recommending to the locality’s legislative body: (1) a zoning plan; (2) zoning districts; (3) a zoning ordinance; and (4) the manner of administering and enforcing the zoning ordinance. MCL 125.3305. Once a locality creates a planning commission as allowed by Section 11 of the Michigan Planning Enabling Act, MCL 125.3811, (“MPEA”), the locality must also adopt a master plan as required by Section 31 of the MPEA, MCL 125.3831. The planning commission is the governmental body which prepares the master plan which then becomes the basis for local land use regulations such as the local zoning ordinance. The legislative body is the governmental entity which then formally enacts the zoning ordinance and adopts the master plan recommended by the planning commission.
The zoning administrator is the individual primarily responsible for administering and enforcing the zoning ordinance. MCL 125.3407. In some communities there may be deputy zoning administrators or a building inspector may serve as the zoning administrator. The zoning administrator is often the primary interface between members of the community and the government’s exercise of zoning power. The zoning administrator will take and review certain applications and conduct site inspections. If the zoning administrator determines that there is a violation of the zoning ordinance, then the zoning administrator must enforce the zoning ordinance through the imposition of fines and penalties, civil infractions, and blight designations. A violation of the zoning ordinance is considered a nuisance per se, and upon such a finding a court is to abate the nuisance. MCL 125.3407. The planning commission will share administrative responsibilities with the zoning administrator by conducting such administrative functions as review and approval of site plans, MCL 125.3501, special land uses, MCL 125.3502 & 125.3504, and planned unit developments, MCL 125.3503.
To a great extent, by sharing administrative responsibilities with the zoning administrator and by considering the policies underlying the adoption of the zoning ordinance and master plan, a planning commission is able to ensure that the zoning ordinance, as adopted and enforced, implements the goals and objectives of the master plan and that the zoning ordinance and master plan are consistent. The planning commission can then make periodic recommendations and reports to the legislative body to inform the legislative body if there are any changes that need to be made to the zoning ordinance in order to achieve the development goals set forth in the master plan.
The MZEA also requires that a zoning ordinance create a zoning board of appeals (“ZBA”), though the legislative body itself may act as the ZBA. MCL 125.3601(1) & (2). The statutory authority of the ZBA is described as follows:
The [ZBA] shall hear and decide questions that arise in the administration of the zoning ordinance, including the interpretation of the zoning maps, and may adopt rules to govern its procedures sitting as a [ZBA]. The [ZBA] shall also hear and decide on matters referred to the [ZBA] or upon which the [ZBA] is required to pass under a zoning ordinance adopted under this act. It shall hear and decide appeals from and review any administrative order, requirement, decision, or determination made by an administrative official or body charged with enforcement of a zoning ordinance adopted under this act. For special land use and planned unit development decisions, an appeal may be taken to the zoning board of appeals only if provided for in the zoning ordinance.
The ZBA is the body to which a landowner would submit an appeal who feels aggrieved by a decision of the zoning administrator or the planning commission (when acting in an administrative capacity). The ZBA hears appeals of the administrative bodies, considers variances from the strict application of the zoning ordinance, and interprets the zoning ordinance.
The decision of the ZBA is final and once made there is no further recourse at the local level. MCL 125.3605. A decision of the ZBA may be challenged by timely appealing the decision to the circuit court for the county in which the property is located. MCL 125.3606. The circuit court then reviews the record and the ZBA’s decision to ensure that the decision:
- Complies with the constitution and laws of the state of Michigan;
- Is based upon proper procedure;
- Is supported by competent, material, and substantial evidence on the record; and
- Represents the reasonable exercise of discretion granted by law to the ZBA.
If the circuit court considers the record inadequate to make the review, or that additional material evidence exists that with good reason was not presented, the circuit court may also order that further proceedings take place on conditions that the circuit court deems proper.
Summary
Through the MZEA and the MPEA, the Michigan legislature has created a structure which allows communities to both plan for the future and regulate land use in the present. The MZEA also creates an enforcement structure which provides authority and discretion to a locality but also reserves to the circuit courts a right of review. The different roles played by each of the governmental bodies involved in zoning are distinct and serve to complement one another and help to create a structure which is both responsive to the short term and immediate needs of land use regulation and the implementation of a community’s long term development goals. Being aware of these roles can assist a member of the community in determining the best use of their land and in interacting with their local government.
Matthew W. Heron is a Member of Hirzel Law, PLC where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, land use, large contractual disputes and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. Mr. Heron concentrates his practice on drafting, revising, amending, restating and interpreting governing documents of condominium and homeowner’s associations in Michigan. He can be reached at (248) 720-5762 or mheron@hirzellaw.com. You can also follow him on Twitter at @mwheron75.
