planning law memo

Christopher CannaPlanning Law Memo

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MEMORANDUM

To: Ms. Regina ReynoldsFrom: Christopher CannaDate: September 1, 2008Re: Rustic Township Rezoning

The following memo responds to a hypothetical client and was written for my class Legal Aspects of the Planning Practice. The assignment required researching Michigan land-use and zoning statutes to answer the client’s questions in a concise, three page memo. I received an A+ grade on the assignment.

The client, Ms. Reynolds, owns a 5-acre parcel rezoned from RR-5 (rural residential, 5-acre lot minimum) to RR-MH (rural residential mobile home). The Rustic Township Board rezoned her land, along with 35 surrounding acres, at the request of a local mobile home developer with an option contract on a neighboring parcel. He threatened to sue Rustic Township if they did not rezone to allow low-income mobile home parks. Ms. Reynolds wants to know why the Township buckled to the developers request, and did not notify her personally about the rezoning. She would also like to know if the Township Board’s decision can be overturned by referendum.

Ms. Reynolds, In response to your questions regarding the rezoning amendment recently passed

by Rustic Township, I have concluded: 1) The Township rezoned your property out of concern that the

township zoning code violates the State of Michigan’s prohibition against exclusionary zoning. 2) You

do not have a case against the Township for providing improper notice of rezoning, because it followed

proper legal procedure. 3) Residents of Rustic Township can undertake a referendum challenging

rezoning. 4) However, even if residents reject the rezoning, it would not resolve the fundamental

question of whether the Township’s zoning code is exclusionary. As a result, the developer would retain

the right to sue, and likely win a judgment in his favor.

Exclusionary Zoning

The Township Attorney cautioned the Rustic Township Board about potential legal liability,

because the court may find the township zoning code constitutes exclusionary zoning. In Michigan,

exclusionary zoning is prohibited by the Michigan Zoning Enabling Act (MZEA), which forbids zoning

ordinances from excluding land uses that have a demonstrated need in a municipality, unless there is no

suitable location for that use, or the use itself is illegal.1 Given the law and facts of this case, the Township

zoning code appears to violate the MZEA. A county study has demonstrated the need for higher-density,

low-income housing, which mobile homes can provide, but Rustic Township’s current zoning allows only

for low density rural residential development. There also appears to be suitable land for mobile homes,

because a developer is willing to develop such land, and of course mobile homes, themselves, are not

illegal.2 Prior to the adoption of the MZEA in 2006, Michigan courts typically held that exclusionary

zoning principles apply to mobile home parks.3 Given the near-identical language concerning

exclusionary zoning used in the MZEA and the Township Zoning Act it replaced, it is reasonable to expect

that the courts will continue to do so.4


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Notice from Rustic Township

You do not have a good case against Rustic Township for failing to provide proper notice of

rezoning, because the Township followed appropriate procedures for notifying the public. According to

the MZEA, a township must publish notice in a newspaper of general circulation 15 days before a hearing

on rezoning.5 Rustic Township published notice in the Rustic Register on August 8 and August 22, a full

21 days before the hearing on August 29. If the rezoning is passed, the MZEA requires the township clerk

to publish notice within 15 days.6 Rustic Township’s clerk published the rezoning notice on August 30,

one day after the amendment was approved. Rezoning then takes effect 7 days after notice has been

published.7 Rustic Township’s rezoning will therefore take effect on September 6. Unfortunately, the

MZEA requires personal notification for rezoning only if fewer than 11 properties are affected by the

rezoning.8 In your case 15 properties were affected, so personal notification was not required.

Referendum Process

Residents of Rustic Township can undertake a referendum for this type of rezoning under the

MZEA.9 A referendum is a legislative process that allows citizens to reject or approve legislation already

enacted by a legislative body.10 Referendums are a form of direct democracy meant to bring decision-

making power closer to citizens.

As a registered elector living within the zoning jurisdiction, you can file a notice of intent to file

a petition with the Township Clerk.11 You must file the notice of intent within 7 days of publication of the

rezoning notice; if not the rezoning will take effect. In this case, the notice of intent must be filed before

September 6. Filing the notice will suspend rezoning and allow you time to collect signatures for the

petition. The required number of signatures is equal to or greater than 15% of the total number of votes

cast in the last election for governor.12 You need to submit the completed petition to the Township Clerk

no later than 30 days after the rezoning notice was published, meaning no later than September 30.13

The clerk then determines if the petition is properly completed and submits it to the legislative body,

which determines the date of the election and form of the referendum question.14

Referendum Outcome

While a referendum is possible, it cannot resolve the fundamental legal question of whether

Rustic Township’s zoning is exclusionary. As a result, a referendum rejecting the rezoning will not prevent

the mobile home developer from suing the Township and most likely winning a judgment in his favor,

as explained above. A local referendum cannot change this outcome because the resulting legislation is

just as subject to Michigan law as legislation approved by the Township Board.15 Townships were created

by the State of Michigan and derive their power, including zoning, from the state. Township ordinances

are therefore subordinate to, and constrained by, state law and cannot legitimize zoning otherwise

prohibited by the MZEA.


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Conclusion

Rustic Township’s attorney believed the Township could lose a lawsuit brought by the mobile

home developer, because the Township’s zoning code would likely violate Michigan’s prohibition against

exclusionary zoning. Rustic Township followed proper procedure for notifying the public throughout

the rezoning process, so you do not have a case against the Township for failing to provide notice.

Residents of Rustic Township can undertake a referendum under Michigan law. A referendum would not,

however, resolve the question of whether the Township’s zoning code is exclusionary. The developer

would therefore still have a strong case against the Township and would likely win a lawsuit against the

Township, despite the referendum.

Endnotes

1. Michigan Zoning Enabling Act §125.3207 (2006)

2. Crawford Jr., Clan. 1988. Michigan Zoning and Planning (3rd Ed.), with January 2007 cumulative supplement. Ann Arbor, MI: Institute for Continuing Legal Education. 41.

3. Fisher, Gerald A., Joseph F. Galvin, Alan M. Greene, Gregory K. Need, and Carol A. Rosati. Michigan Zoning, Planning, and Land Use (April 2009 Update). Ann Arbor, MI: Institute of Continuing Legal Education. 31. and Crawford, Michigan Zoning & Planning, 41.

4. Michigan Zoning Enabling Act §125.3207 (2006) and Township Zoning Act §125.297a (1943)


6. Michigan Zoning Enabling Act §125.3401(07) (2006)

7. Michigan Zoning Enabling Act §125.3401(6) (2006)



10. Juergensmeyer, Julian & Roberts, Thomas, Land Use Planning and Development Regulation Law 2nd. (St. Paul, MN: west Group 2007), 138.


12. Ibid.

13. Ibid.

14. Ibid.

15. Juergensmeyer & Roberts, Land Use Planning and Development Regulation Law, 141.

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