2016-2017 planning and zoning court case summaries now ready

Kurt H. Schindler, Michigan State University Extension - May 30, 2017

The annual May 2017 summary of land use court cases is prepared and available to the public.

Court cases and legal opinions that focused on land use issues during the past 12 months included county buildings versus land uses, regulation of religious institutions and assemblies, permit application required before going to court and medical marihuana.

Michigan State University Extension has recently completed its annual compilation of planning and zoning court cases and attorney general opinions. The summary entitled “Summary of Planning and Zoning Court Decisions, 2017” covers court cases from May 1, 2016 to April 30, 2017 and is now available to view. Each of the cases highlighted below are contained in more detail in the summary as well as additional cases. Since 2003, MSU Extension has made this annual overview available in a single document format. All summaries from previous years are available at the Land Use Pamphlets web page.

It is vitally important for zoning administrators and professional planners to stay on top of changes in statutes and court cases concerning planning and zoning. Land use law changes on a regular basis. When an appeals court or Supreme Court publishes an opinion on a land use case, precedent is created – being a “new norm” for how similar situations should be addressed.

Significant for this 12 month period is that there were no Michigan or United States Supreme Court cases concerning planning and zoning.

While county boards of commissioners can build principal buildings and their accessory uses without zoning approval, that zoning exemption does not extend to siting other land uses. The court case, involving Berrien County, was two cases consolidated in front of the Michigan Court of Appeals. The county was setting up a shooting range, and the township argued that land use is subject to its zoning ordinance. The County Commissioners Act provides the county with no power to site land uses or activities without municipal zoning approval, only county buildings.

In a United States Court of Appeals, Sixth Circuit, the court ruled that the Religious Land Use & Institutionalized Persons Act (RLUIPA) requires local government to regulate religious assembly or institutions less or equal to how it regulates nonreligious assemblies or institutions. So when the city of Upper Arlington, Ohio, did not amend its zoning because it would fail to maximize tax revenue, the appeals court decided there was a genuine issue of fact as to if that treated the church differently than other assemblies.

If a plaintiff never applied for a permit, then that plaintiff does not have standing to challenge a city’s zoning ordinance the U.S. Court of Appeals, Sixth Circuit, ruled. As a result, the court case is not ripe for a court’s consideration. The plaintiff was trying to open a night club and believed the city of Weckiffe, Ohio, would not issue a permit and thus pointless to even apply for the permit. So the plaintiff filed suit in court. The court ruled the city never indicated it would, or would not, issue a permit. Applying for the permit, as well as all other administrative remedies, must be tried first before going to court.

Finally there were two Michigan Medical Marihuana (MMMA) cases before the Michigan Court of Appeals. One case the court ruled one cannot use MMMA as an affirmative defense if not a primary caregiver or patient as defined in MMMA. In the second case, the defendant had immunity under the MMMA because he had a valid registry identification card and complied with volume limitations (number of plants) stored the marijuana properly and only engaged in medical use of marijuana.

Unpublished cases include:

Emails between members of a subcommittee were found not to violate the Open Meeting Act (OMA). Other case law indicates deliberation via emails between a quorum of a public body is a violation of the OMA. Then, by extension, emails between a quorum of a committee of a public body would violate the OMA. The public body (board, council, commission, authority, appeals board) can create a committee, and a committee, in turn, creates a subcommittee.
Denial of an accessory structure without a principal use on the same parcel is proper and a reasonable regulation.
A zoning board of appeals for the city of Harper Woods has to include a findings of fact as part of its action in a case. Failing to do so is a denial of due process. Any appeals board must make a proper record of its actions: findings of fact, reasons for the action and the action/decision.
On remand the Harper Woods appeals board had properly articulated the factual findings to support its decision. The case was back in court because the applicant was not notified and did not have an opportunity to be heard when the appeals board met to reconsider the case. The Appeals Court ruled the reconsideration was done at a regular appeals board meeting (with open meeting act notice). Reconsideration was to create a proper record of the basis for its earlier actions, not to rehear the case and hear additional arguments or obtain additional evidence.
The Michigan Court of Appeals ruled that granting a variance by a zoning board of appeals might have different decisions compared to nearby properties and that by itself is not discriminatory and is not an unreasonable exercise of discretion.
An appeals board can hear more than once variance request from a property owner.
An appeal to circuit court of a zoning board of appeals action is void if filed after the Michigan Zoning Enabling Act deadlines for doing so.
A zoning board of appeals ruling on interpretation of the meaning of “clubs and lodges” such that it did not include “swinger’s club” or “night club” (adult entertainment) – especially since eating, drinking and nightly entertainment are included in other zoning categories in the township’s zoning ordinance.
Even if the applicant thinks the request for a variance would be futile: “[a] mere expectation that an administrative agency will act a certain way is insufficient to satisfy the futility exception.” Two Appeals Court cases addressed the concept that a court case is not ready for going to court if a variance was not first applied for (exhaust all local administrative remedies before going to court).
A large scale commercial compost processing operation is not a “farm” under the Michigan Right to Farm Act and thus is subject to local zoning regulation. Prohibiting the compost operation in one zoning district is not exclusionary zoning because it is a possible use in other zoning district(s).
A barn which became an intensely used venue for commercial events is no longer accessory to a single family home and could be regulated as commercial by zoning.
Regulation of short term rentals was upheld because the zoning ordinance was not vague concerning its requirements.

For regular updates on planning and zoning related court cases, attorney general opinions, legislation, research and training opportunities, MSU Extension provides an email list-serve for professional planners, zoning administrators, municipal attorneys and others. For information about that service, contact the author.

MSU Extension articles on previous year court case summaries are:

This website includes the summaries of court cases for 2003 to April 2017.

This article was published by Michigan State University Extension. For more information, visit https://extension.msu.edu. To have a digest of information delivered straight to your email inbox, visit https://extension.msu.edu/newsletters. To contact an expert in your area, visit https://extension.msu.edu/experts, or call 888-MSUE4MI (888-678-3464).