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|Land Use Questions and Answers, Zoning Adoption and Amendment|
|Have a question on land use, planning, and zoning? Please email your question to the approprate land use educator for your part of the state, as shown here. Please tell them what county you are from.|
|A large part of Extension's service is to respond to email questions on land use, planning, and zoning. This page contains questions which are among the more common ones received. The questions and answers here are compiled from those I have received/responded to, and those I have participated in discussion with on the Michigan Society of Planning discussion board.||The materials here, are written for the specifics of planning and land use law in Michigan.||Please send your comments and suggestions to me, to make these pages a better service for you. Send to firstname.lastname@example.org .|
|Click to Jump to Questions on these topics:|
||Zoning, Adoption and Amendment||Zoning, Special Use & PUD||Zoning,
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|Zoning Administrator||Zoning Appeals||Nonconforming Issues||Land Divisions||Subdivisions and Site Condominiums||Other|
Ask a land use question in the form below and a member of the MSU Extension Land Use Team will send you a reply. Be sure to let us know what community and county you come from - it helps us route your question to the team member best able to answer.
Zoning, Adoption and Amendment
|Size of Zoning Ordinance||My home township is currently working on a revised zoning
ordinance that may end up being more than twice the size of our current
document. The merits of an ever-expanding ordinance are debatable,
but the immediate concern is being sure applicants understand the regulations.
Are you aware of any townships that have developed a simplified guide
to help residents understand the development standards and processes in
(August 7, 2001)
| The size of a zoning ordinance
is irrelevant. It needs to be whatever size is necessary to do the
job. (My observation is, the shorter it is, the more loopholes exist
and the more problems one will have in the long run.)
There are many communities that have developed guides for zoning.
The other option is the development of checklists. The checklist would be used primarily by the zoning administrator when reviewing a permit application/site plan/etc. so he does not miss anything, and is sure to review each application the same way. Those checklists can be used to give to the public so they are clear on exactly what is looked at and reviewed. Samples of this can be found in the Sample Zoning Administrator Manual (part of our Land Use Series pamphlets ).
-----Kurt H. Schindler
|Land Patents & Zoning Jurisdiction||
We have some that claim because they live on U.S.
Land Patented property they are not subject to local regulations, zoning,
or taxes. What case law is there on this?
The short answer is the arguments of this genre are utter and
complete nonsense. Rather than go to the expense of shooting the argument
down, let the arguee try to find a lawyer that will take on the case
--that way the arguee gets to pay his/her own legal fees to learn it
is utter and compete nonsense.
|Public Notices for zoning Amendments||Now we have a requirement to list address of affected
property for rezonings. I'm not thrilled with this as we don't assign
addresses to vacant properties in the county-only when permits are pulled.
We will now have to do a temporary address for purpose of rezoning - with
a final assigned at the time a permit is pulled.
(May 15, 2006)
The act does not require you to assign addresses, or to create
temporary ones. (In fact I would not create temporary addresses nor would
I address vacant parcels of land. No address should be created until permit
is issued is a wise and good policy to continue to use.)
The Michigan Zoning Enabling Act, as amended, reads: "The notice shall include a listing of all existing street addresses within the proposed rezoned property...." [emphais added]. It goes on to say "Street addreses do not need to be created and listed if no such addresses currently exist within the property" (M.C.L. 125.3103(3)(b)). The act requires one to list "existing addresses", so that is all I would do. (If a parcel does not have an address, then there is not an address to list.) (Or, alternatively, you could list "vacant parcel(s) between 276 and 290 Elm Street.")
----Kurt H. Schindler
| Zoning Jurisdiction
|Are schools subject to zoning?||Michigan Court of Appeals (Charter Township of Northville
v. Northville Public Schools, ( No. 219124.) August 17, 2001; 2001
WL 936349 --- N.W.2d --- (Cite as: 2001 WL 936349 (Mich.App.)) Only
the Westlaw citation is currently available.) ruled:
This case requires us to decide whether a provision of the Revised School Code, M.C.L. <section> 380.1263(3), exempts school construction projects from local land use regulations, including zoning controls and site plan reviews. Further, we must decide whether the statute unconstitutionally delegates legislative authority to the superintendent of public instruction. We conclude that the statute is constitutional and that its plain language exempts school construction projects from local land use regulations, including zoning and site plan reviews.
But what if a school district wanted to build a gas station on the corner of their property? From a strict constructionist point of view, which seems to be the popular view these days, one could argue that if the Legislature meant to exempt everything that happens on school owned property from local zoning, they could have said so, but all they said was "buildings".
|Undue Influence by Elected Officials.||Elected members of the Township Board appearing at Township Planning Commission meetings insisting they have the right to participate in the discussion/determination of the Planning Commission on matters brought before them. Not, during scheduled public comment, but actual input during the decision of the Planning Commission. This I feel is a breach of ethics. In addition, these same Township Board members insisted ‘I want’, when the Planning Commission members made their decision and state they are ‘just going to send it back to you to change when it (the decision on an amendment to the Ordinance the Planning Commission has made) comes back from County review.’ Have they not created a bias, a conflict of interest for themselves? They have stated in a public forum their opposition to this amendment. When the amendment does come before the Township Board for passage how could they possibly render an unbiased decision? (January 17, 2011)||
The answer to this type of situation is very different, depending on the type of zoning case it is.
|Elected Body Acts, even if Planning Commission Recommends Denial||If the Township Planning Commission recommends denying
a rezoning request and the Township Board is prepared to approve the request
anyway based on the merits of the request, master plan, etc., does the
request have to be sent back to the Planning Commission? If so,
what must transpire in terms of public hearings at both levels? (see MCL
(updated May 12, 2006)
| The township board has final
action on the request - the action of the township planning commission
(and likewise any planning commission) concerning amendments are advisory.
Follow normal posting and public notice procedures under the Act.
(For information purposes a couple township planning commissions recommended denial of a request and then informed the county planning commission that they would not be sending the request as it was a dead issue because they denied it. That is not correct. The applicant had paid a fee and had the right to due process which was a right to go through the WHOLE process all the way to the Township Board's final action. Therefore, the county planning commission was going to review the request and make a recommendation to the township board. The process would only stop if the applicant withdrew the request.)
I utilize the book titled Michigan Zoning & Planning, Third Edition by Clan Crawford Jr. a great deal when looking for answers or for citing information in staff reports on rezonings, text amendments, or plans. It is from the Institute of Continuing Legal Education out of Ann Arbor.
----Trudy Galla, Planning Director, Leelanau County
The Michigan Zoning Enabling Act requires if the governing body (county board, township board, village or city council) wishes to act counter to a planning commission's recommendation, the first time they receive the ordinance, the government body must first send it back to the planning commission for further consideration (M.C.L. 125.3401(3)). The second time the planning commission sends a recommendation, on the same amendment, to the governing body the governing body can proceed to act counter to the recommendation or adopt an amended version (M.C.L. 125.3401(5)).
---Kurt H. Schindler
|Conditions on Zoning a Amendment||What is the definitive answer to the question of whether
a planning commission and township board can place conditions on a rezoning?
For example, a petitioner is requesting to rezone a 2 acre piece (which
fronts a public road) of a parent 12 acre property from 10 acre minimum
to 2 acre. The Parent parcel would still have sufficient road frontage
along a private road access into a subdivision. Can the Planning
Commission and Township Board allow to rezone the property on the condition
that only the 2 acre piece be zoned, with the remaining parent parcel
staying 10 acre. I've seen references to a Michigan Supreme Court
decision that said conditions can be placed on rezonings, but I can't
find the actual case anywhere on the Michigan State Supreme Court web
(July 1, 2002, updated Feb. 2005, updated May 12, 2006)
| A municipality can not place
restrictions on a rezoning (except as noted below). A rezoning is
the same thing as amending the zoning ordinance. That is a legislative
action, which changes a local ordinance, which must be applied on an equal
basis to everyone. Once land is rezoned, the future use of that
land must comply with the provisions of the zoning ordinance dealing with
that zoning district, as well as other general provisions of the zoning
ordinance. Once the municipality adopts a zoning amendment/rezoning
it continues in place until the municipality takes another action to change,
or repeal, it.
The exception is "conditional zoning" (M.C.L 125.3405) based on 2004 amendments to zoning enabling acts. This is where an amendment is adopted on the basis of an agreement with a landowner to do a specific thing with a specific parcel. It has to be proposed by the applicant (not the municipality). Careful review of the applicable statute, knowledge of proper negotiation, and involvement of an attorney should be part of this process. Conditional zoning should not be done unless first amending one's zoning ordinance with a number of provisions that spell out due process, procedure, and other such details. The Michigan Townships Association has developed an excelent model zoning language to for this purpose. A community also has the option to specify in their zoning that this option will not be used.
Conditions can be placed on a variance. Conditions can be placed on a special use permit.
----Kurt H. Schindler
|Amending the Zoning Map|| The County Planning Commission
will have a rezoning request for 80 acres. Half is currently RP2.5 (min.
lot size or density factor of 2.5 acres) and the other 40 acres is RP5
(5 acre min. lot size or a density factor of 1unit/5 acres.
The Zoning Administrator has presented the case to the Planning Commission to approve the rezoning of the 80 acres to R-2 (a density factor of 15,000 sq. ft.or the min. lot size of District) subject to or conditionally upon approval of a PUD Application or PRD Special Use Permit. I am concerned about approval of a Zoning Ordinance amendment or Map Amendment with any conditions. I do not believe this is legal. Is this true and if so do you know any case law or can you give me any situations?
My other concern is that changing the Zoning without fully knowing the plans for the site may backfire. The developer could pull the SPLU Application or not do it at all and file for a Subdivision without Planning Commission approval.
(Nov. 29, 2000; updated Feb. 2, 2005)
| Have an area with out a zoning
One-to-One relationship between zoning text and zoning map.
| Is it legal to
have no zoning district assigned to a portion of a community? Such
as: an interstate freeway interchange and similar rights-of-way. Do such
areas have to be placed in some zoning district? Other approach
would be to create another district for areas dedicated to transportation
Is it okay to have a zoning district in the text of the ordinance, but not on the zoning map, or visa versa?
(March 31, 2003)
| There are a number
of issues here.
First, one should zone all territory within your political boundaries, including public lands (National Forests, State Forests, road right-of-ways (freeway interchanges), etc.) Most public agencies are also subject to zoning. The exceptions are few see Restrictions on Zoning Authority on this web page for a list.
Second, if the map does not show zoning, then one can argue, and may well be successful, to say if not in a zoning district then there is not any zoning and someone in those areas can do whatever they want without needing zoning approval.
Third, I am not aware of a statute or case law that makes it illegal to have a part of the municipality without a zoning district. Statute specifically allows zoning to be adopted for only part of a jurisdiction. (For example if a community wanted to have zoning to protect a river, but not have zoning in other areas of a community, they could, by adopting a zoning ordinance for land along both sides of the river.)
Fourth, my personal preference in drafting a zoning ordinance is to always have a one-to-one relationship to each zoning district shown on the zoning map and the corresponding text in the zoning ordinance. Thus I would not have a "color" on the map that has no corresponding text in the zoning ordinance.
Fifth, public agencies always can sell, buy, trade land and rights-of-way. Also MDOT can choose to use the land for something else (salt barn, road crew garage, computer parking lot) which may, or may not be wanted or desired based on the community plan and zoning if there was zoning. Those things, or a new land owner can then act to start to change the land use way before zoning can be changed (or added to an area). The approach to create specific zoning district for "transportation rights-of-way" could be one way to handle it. That would zone the land something, and would then require someone to initiate the process for a zoning amendment.
----Kurt H. Schindler
| Amending Zoning
|Has anyone ever been successful in having a township
zoning board reverse the zoning in their township from R1 to Ag?
This is a question that I have had and would like some examples.
(March 7, 2001)
The concern to rezone from R-1 to an Agricultural is that it is usually "downzoning", meaning one is changing from a more permissive zoning district to a less permissive zoning district. Thus, the community needs to do its homework, and create the paper trail of that homework so it can document and justify its decision to change the zoning. The best way to do that documentation is to first amend the municipality's plan. (Michigan Statute requires zoning be based on a plan.) The plan change should be based on a resource analysis, public participation, and basic planning practices.
To be more specific with a response, one needs to know more specifics on the type of "R-1" zoning district and the type of "Agricultural" district (e.g. agricultural preservation (and what type of preservation technique), rural residential (farm and dwelling permitted uses, on small parcels (1, 2, 10, 20 acres), or some other concept.
----Kurt H. Schindler
|Adopt Part of a Zoning Ordinance||I have a township that is trying to adopt a new zoning
ordinance. It appears there is one section that is very controversial
and there is a group that will probably try a referendum if the Board
passes the ordinance. Otherwise, the ordinance looks pretty good
and is an improvement over the old one (1969). Are you aware of
any townships that have adopted a zoning ordinance without an article
in it, and then continued to work on that Article and added it to the
ordinance later? I'm trying to see if that is a possibility for
them to at least get 95% of this thing adopted; if they could adopt the
ordinance, minus Article 10, and continue to work on that. Let me
know your thoughts, or any back up data you may have on this.
(August 21, 2002)
| Does a township adopt all but
one part of a zoning ordinance, with work on that part to continue for
a later amendment. Well, that depends on what Article 10 is.
If it is one of the statute-required articles then the article must be
included (but maybe use the same text as was found in the old ordinance
for the time being). Statue-required articles are those parts that
deal with basic legal causes (authority, purpose, effective date, etc);
some definitions; some general regulations; establishing the zoning map;
text for any zoning district that is shown on the zoning map; permit process
and procedures; special use process and procedures (if special use permits
are being used); PUD (if PUD is being used); nonconformities; ordinance
administration; appeals board; amending, validity, enforcement and penalties.)
If it is not one of those, then: Yes. That is done quite commonly.
One might also codify a zoning ordinance which intentionally leaves gaps between numbered articles so that others can be added at a future date. For an example of codification click here.
It is also possible for the angry people who do not like article 10 to petition to just place article 10 on the ballot, rather than the entire zoning ordinance. While that can be done, I have yet to see a group of people target their objections that specifically, and so they petition to put the entire zoning ordinance up for a vote.
---Kurt H. Schindler
|Petition Zoning to a Vote||Is there any summary or handout on the process to be
followed for a referendum on a rezoning? I got asked today by a
township. They approved a rezoning and they are being petitioned
for a referendum. I know what steps need to be followed as far as
filing the notice of intent, petition, etc., but is there something in
writing that they can use to place it on the ballot, etc.
(August 22, 2002)
| Closest I have is this
PDF file on influencing zoning amendment decisions and a more similar
this web page .
From the petitioner's standpoint: the petition, and its preparation, etc. is a legal type issue. So the main, most important, (and only) step is HIRE A LAWYER.
From the township's standpoint: It is the duty of the clerk. S/he will work with the County Clerk to set up what needs to be done. Also, the township should consult with their lawyer. Michigan Secretary of State's Election Bureau would be another source of information. Within Extension, go to our campus-based State and Local Government Specialist, John Amrhein.
|Permit Approval based on What Zoning Says on Date Application is Received.|| Back in April a man submitted plans
for site condos on 30 acres. He presented it to the board to make
sure it would meet our zoning. It did at that time and was approved.
He did not follow through on it immediately. It stopped there, now he
wants to begin in the next couple of months. In the meantime we
adopted a new zoning ordinance. His project does not comply with
the new zoning. The question is, does he proceed under his approval from
the old zoning, or does he have to comply with the new zoning ordinance?
(March 31, 2003)
Anyone who applies
for a permit, or zoning approval, or land division approval gets that
approval based on what your zoning ordinance says on the date that a
complete application is received by the zoning administrator.
|Amendment & Permit at the same time|| We have a resident who
wants to put up some storage buildings on property currently zoned Ag
along a major twp thoroughfare where commercial uses are consistent with
our master plan. Storage buildings are a conditional use in C-1
zoning here, so not only does he need a conditional use permit, he also
needs a rezoning to C-1.
We've never done a combo like this before - he doesn't need the rezoning if he can't get his conditional use permit, and he doesn't need the permit if he can't get his rezoning. Does anyone have any suggestions for an efficient way to handle this? Other thoughts?
(June 20, 2002)
| He first seeks to amend the
zoning ordinance (the re-zoning).
Then, if the amendment is adopted, he applies for the special use permit (conditional use permit).
Life has risks. He needs to decide if he wants to take the risk. It is not a "combo". It is two separate requests, handled sequentially.
Another option would be to seek an amendment that adds "storage buildings" to the list of permitted uses in the Ag district (or add "storage buildings" to the list of special uses (conditional uses) in the Ag district. Such a request may or may not be adopted, depending on compliance with the Plan.
----Kurt H. Schindler
Require applications for both. Notice both. Hold a public hearing for both. Thave the planning commission take action on both at the same meeting, with the two actions tie-barred. Use the most restrictive notice requirements throughout the process.
----Bryan Armstrong, AICP, Michigan Department of Transportation
Before proceeding with the idea of simultaneously processing a zoning amendment and special use permit with the two actions tie-barred, run that past your municipal attorney. I have worked with some attorneys who feel strongly such a procedure can not be done. Others do not have such strong feelings. Go with what your municipal lawyer says.
---Kurt H. Schindler
|Conditional Rezoning||Do you know of any “contract zoning” or “conditional rezoning” cases in Michigan, since the recent law went into effect, that might be good examples of how to handle the issue? We’ve attempted one in our township but it was less than ideal and I wouldn’t want to use it as a “template”. I would like to have a clear idea of how to use this tool. (May 15, 2006)||
I have not seen any court
cases at the appeals court, or higher, level in Michigan. I would not
know of district or circuit court cases. If there were cases in the
lower courts they were settled, not appealed, or have not reached the
appeal stage yet.
|Schindler's Land Use Page: Land Use Page | Education catalog | Schedule of programs| Pamphlets |for people who are not members of local boards | questions and answers | land use links | Old Stuff | Indicia, disclaimer, etc.|
|2001 Planning & Zoning Amendments | 2004 Land Use Legislation | 2006 Michigan Zoning Enabling Act | 2008 Michigan Planning Enabling Act | |Kurt Schindler|
|Kurt H. Schindler, Land Use Educator, MSU Extension, Benzie County; 448 Court Place, Beulah, Michigan 49617-9518 | (231)882-0026 | SCHINDL9@anr.msu.edu | fax(231)882-9605 | Coordinates: N 44° 37' 31.2636", W -86° 5' 34.875" | Map of office location|