STATE OF MICHIGAN

The requirement in section 601(3) of the Michigan Zoning Enabling Act, MCL 125.3601(3), that a member of the zoning or planning commission be appointed to the zoning board of appeals does not require that a current member of the zoning board be removed to create a vacancy that may then be filled to satisfy the requirement. The city or village council may amend its zoning ordinance to increase the number of members on the zoning board of appeals either temporarily or permanently and fill the newly created position with the required zoning or planning commission member.

A member of a city or village zoning board of appeals who also serves as a member of the local unit's planning or zoning commission must abstain from voting on a matter being considered by the zoning board of appeals that he or she voted on as a member of the zoning or planning commission where the facts and circumstances associated with the particular decision under review make abstention necessary to satisfy the due process requirement of impartial decision making.

A city or village council may appoint a successor to the zoning board of appeals after the expiration of a member's term notwithstanding the passing of the one-month deadline imposed by section 601(9) of the Michigan Zoning Enabling Act, MCL 125.3601(9), but the council should complete the appointment process as soon as practicable thereafter. Where a city or village council fails to timely appoint a successor to the zoning board of appeals after the expiration of a member's term under MCL 125.3601(9), that member may continue to serve beyond the expiration of his or her term as a holdover member until a successor is appointed and qualified.

The requirement in section 601(9) of the Michigan Zoning Enabling Act, MCL 125.3601(9), for appointment of a successor on the zoning board of appeals within one month after the term of the preceding member has expired has no application to the filling of a mid-term vacancy by appointment to the zoning board of appeals by the city or village.

In order to comply with the 30-day deadline for appealing to the circuit court from a decision of a zoning board of appeals set forth in section 606(3) of the Michigan Zoning Enabling Act, MCL 125.3606(3), a party must file the appeal within 30 days of the date on which the zoning board of appeals certifies its decision in writing or the date on which it approves the minutes of the meeting at which its decision was made, whichever is earlier.

Appeals to the Court of Appeals from decisions by a circuit court on review of a decision of the zoning board of appeals may only be taken by application for leave to appeal to that court in accordance with MCR 7.203 and not as a matter of right.

The provisions as to the effective date of a zoning ordinance and for the publication of notice of its adoption set forth in section 401(6) and (7) of the Michigan Zoning Enabling Act, MCL 125.3401(6) and (7), will control over different requirements for the effective date of a city ordinance or for the publication of notice of its adoption set forth in a city charter.

A municipality may comply with the requirements in section 103(2) of the Michigan Zoning Enabling Act, MCL 125.3103(2), for giving notice to the occupants of structures within 300 feet of a property subject to certain zoning actions for which this type of notice is required, by either delivering a written notice in person to an occupant of each unit in such a structure, or by mailing a letter to one or more occupants of each unit in such a structure by name if known or addressed to the "occupant" if the name of an occupant is not known.

Opinion No. 7201

March 21, 2007

Honorable Gilda Z. Jacobs                                                              Honorable Aldo Vagnozzi
State Senator                                                                                     State Representative
The Capitol                                                                                        The Capitol
Lansing, MI                                                                                        Lansing, MI

You have asked eight questions concerning the new Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq, which was adopted by the Legislature in 2006 PA 110, effective July 1, 2006. This act repealed the prior City and Village Zoning Act, the Township Zoning Act, and the County Zoning Act, and merged into one act these laws enabling counties, cities, villages, and townships to regulate land use and development.

Your first question may be restated as follows:

Section 601(3), MCL 125.3601(3), states:

This section sets a minimum number of members of the zoning board of appeals to be appointed by the local unit of government, "not fewer than 5" or "not fewer than 3," depending on the local unit's population. Section 601(3) gives discretion to the city or village council to specify the number of members of the zoning board of appeals "in the zoning ordinance." If there are no current vacancies on the zoning board of appeals, a city or village council may comply with this requirement by amending its ordinance establishing its zoning board of appeals to enlarge the board's membership by one or more additional seats and by filling one of these new seats with the requisite member of the local unit's zoning or planning commission. In addition, if the city or village council would prefer to keep the zoning board of appeals at its current size in the future, the council could provide for a temporary expansion in the membership of the zoning board of appeals to add a member of the planning or zoning commission without removing any current members.

It is my opinion, therefore, in answer to your first question, that the requirement in section 601(3) of the Michigan Zoning Enabling Act, MCL 125.3601(3), that a member of the zoning or planning commission be appointed to the zoning board of appeals does not require that a current member of the zoning board be removed to create a vacancy that may then be filled to satisfy the requirement. The city or village council may amend its zoning ordinance to increase the number of members on the zoning board of appeals, on a temporary or permanent basis, and fill the newly created position with the required zoning or planning commission member.

Your second question may be restated as follows:

Your question recognizes that, in the case of adjudications by local bodies whose members may hold other offices, a conflict of duties that violates due process may arise. In OAG, 1991-1992, No 6742, p 203 (December 4, 1992), this issue was addressed with respect to a similar requirement for counties that have zoning ordinances. OAG No 6742 concluded that due process requires that a member of a county zoning commission serving as the statutorily required member of a county zoning board of appeals refrain from participating in the review of any decision in which the member has previously participated as a member of the county zoning commission.

The opinion first noted that since membership was explicitly required by the statute there was no question to be raised about the incompatibility of the offices. The opinion then went on to explain that the right to an impartial decision maker is a required part of due process that must be afforded in administrative hearings, citing Crampton v Dep't of State, 395 Mich 347; 235 NW2d 352 (1975). See also Milk Marketing Bd v Johnson, 295 Mich 644; 295 NW 346 (1940). In Crampton, the Court surveyed a number of United States Supreme Court opinions in which decision makers were disqualified without a showing of actual bias where, based on the particular facts and circumstances present, "'experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.'" Id., at 351. Among the situations identified as presenting that risk is where the decision maker might have prejudged the case because of prior participation as an initial decision maker. See Withrow v Larkin, 421 US 35, 58; 95 S Ct 1456; 43 L Ed 2d 712 (1975). None of the cases surveyed in Crampton addressed the particular scenario presented in your question, however, nor has research disclosed any subsequent court cases directly on point.

Like the county zoning boards of appeals under review in OAG No 6742, city zoning boards of appeals, if authorized to do so by the city's zoning ordinance, may hear appeals from land use decisions made by the zoning or planning commission as to site plans, special land uses, and planned unit developments under sections 501 to 503 of the MZEA, MCL 125.3501-125.3503. Accordingly, to the extent review of an initial decision is mandated, a member of a city zoning or planning commission serving as the statutorily required member of a city zoning board of appeals may be called upon to participate in the review of a decision in which the member has previously participated as a member of the city zoning or planning commission. In the absence of details concerning a particular decision or action and the level of participation on either end of the decision making process, it is difficult to definitively assess whether a court would find the risk of unfairness in participating in the review of the initial decision constitutionally intolerable. The prudent course to follow under these circumstances, however, is to refrain from all participation in the review of the initial decision in order to assure the impartiality of the administrative process.

It is my opinion, therefore, in answer to your second question, that a member of a city or village zoning board of appeals who also serves as a member of the local unit's planning or zoning commission must abstain from voting on a matter being considered by the zoning board of appeals that he or she voted on as a member of the zoning or planning commission where the facts and circumstances associated with the particular decision under review make abstention necessary to satisfy the due process requirement of impartial decision making.

Your third question may be restated as follows:

Section 601(9) of the MZEA, MCL 125.3601(9), provides:

While section 601(9) of the MZEA, MCL 125.3601(9), provides that appointment of a successor on the zoning board of appeals "shall" occur within one month after the term of the preceding member has expired, the MZEA is silent as to the consequences that result if such an appointment is not made within the required time limit. The expectation, of course, is that an appointment resulting from the expiration of a term will be made within the one-month deadline, since it is presumed that public officials will discharge their statutory duties by acting in accordance with the law. West Shore Community College v Manistee County Bd of Comm'rs, 389 Mich 287, 302; 205 NW2d 441, 449 (1973).

But, in the absence of language that expressly precludes performance of an official duty after the specified time for performance has elapsed, the fundamental rules of statutory construction generally favor construing the time limit as directory rather than mandatory. People v Yarema, 208 Mich App 54, 57; 527 NW2d 27 (1994), citing 3 Sutherland, Statutory Construction (5^th ed), � 57.19, pp 47-48. No such preclusive language is present in the MZEA. Thus, while every effort should be made to comply with the statutory timetable, where circumstances make compliance impossible, an appointment may still be made after expiration of the one-month period. Of course, in the good faith discharge of public duties, the appointment should be made in as close a period of time as is practicable.

Moreover, it is perhaps worth observing as a practical matter that, in the absence of any legislative direction to the contrary, if a successor has not been appointed within the one-month deadline, the preceding member, if available and willing to serve, could continue membership on the board as a holdover until a successor is appointed and qualified. This conclusion is consistent with OAG, 1979-1980, No 5606, p 493 (December 13, 1979), which determined that, in the absence of a statutory provision to the contrary, a public officer holding over may continue to serve until a successor is appointed and qualified. Citing the decision of an evenly divided Court in Attorney General ex rel McKenzie v Warner, 299 Mich 172, 192; 300 NW 63 (1941), a Letter Opinion of the Attorney General explained the policy underlying this rule:

Also supporting this conclusion is the statement in Messenger v Teagan, 106 Mich 654, 656; 64 NW 499 (1895) that "[w]hile there is some conflict in the decisions, the better doctrine is that, where the law does not expressly or by necessary implication prohibit, officers hold over until their successors are duly elected and qualified."

It is my opinion, therefore, in answer to your third question, that a city or village council may appoint a successor to the zoning board of appeals after the expiration of a a member's term notwithstanding the passing of the one-month deadline imposed by section 601(9) of the Michigan Zoning Enabling Act, MCL 125.3601(9), but the council should complete the appointment process as soon as practicable thereafter.  Where a city or village council fails to timely appoint a successor to the zoning board of appeals after the expiration of a member's term under MCL 125.3601(9), that member may continue to serve beyond the expiration of his or her term as a holdover member until a successor is appointed and qualified.

Your fourth question asks whether section 601(9) of the MZEA mandates the same one-month deadline for a city council to fill a vacated seat on a zoning board of appeals for the remainder of the member's term when a vacancy occurs prior to the expiration of a term.

Generally, section 601(9) of the MZEA, MCL 125.3601(9), specifies that terms of membership on a zoning board of appeals are for three years. This section does not specify a deadline for the filling of a mid-term vacancy, but it does state that "[v]acancies for unexpired terms shall be filled for the remainder of the term." If a statute's language is clear and unambiguous, it is assumed that the Legislature intended its plain meaning, and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). Given the language of the statute, there is no basis for implying a 30-day deadline for the filling of mid-term vacancies when the language of section 601(9) of the MZEA, MCL 125.3601(9) does not set forth a deadline for the filling of such vacancies.

It is my opinion, therefore, in answer to your fourth question, that the requirement in section 601(9) of the Michigan Zoning Enabling Act, MCL 125.3601(9), for appointment of a successor on the zoning board of appeals within one month after the term of the preceding member has expired has no application to the filling of a mid-term vacancy by appointment to the zoning board of appeals by a city or village council.

Your fifth question asks whether the 30-day deadline for filing an appeal of a decision of the zoning board of appeals to the circuit court runs from the date the zoning board of appeals certifies its decision in writing or from the date when the zoning board of appeals certifies the minutes of the meeting at which its decision was made.

Section 606(3) of the MZEA, MCL 125.3606(3), states the following regarding appeals to the circuit court from decisions of a zoning board of appeals:

The plain language of the statute provides that the 30-day time period for filing an appeal begins to run when either of two events occurs: 1) certification of the decision; or 2) approval of the minutes recording the decision. Depending on local practice, a zoning board of appeals may or may not certify its decision in writing, but it is required to review and approve the minutes of its meetings. See section 9 of the Open Meetings Act, MCL 15.269. Accordingly, the 30-day time period for filing an appeal begins to run from the date on which the zoning board of appeals certifies its decision in writing or approves the minutes of the meeting at which it made the decision, whichever comes first.

This construction of the statute is consistent with the general rules of administrative law. Appeals of administrative decisions to the circuit court are governed by MCR 7.101 and MCR 7.103. See MCR 7.104. With regard to the time period for filing a claim of appeal, the Michigan Supreme Court has held that the period begins to run on the date of actual entry of the order. General Electric Credit Corp v Northcoast Marine, Inc, 402 Mich 297, 300; 262 NW2d 660 (1978), superseded on other grounds. MCR 2.602(A) provides that the "date of signing of an order or judgment is the date of entry." Approval of the minutes of a meeting at which a final administrative decision is made can serve as the date of entry of the order for purposes of MCR 7.101 and MCR 2.602(A). Davenport v City of Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App 400, 405; 534 NW2d 143 (1995). In the case of an appeal from a decision of the zoning board of appeals, MCL 125.3606(3) provides that the 30-day appeal period begins to run with the certification of the board's written decision or upon approval of the minutes of its decision. Thus, either the certification of the written decision or approval of the minutes constitutes the entry of an order and begins the 30-day statutory appellate period.

It is my opinion, therefore, in answer to your fifth question, that, in order to comply with the 30-day deadline for appealing to the circuit court from a decision of a zoning board of appeals set forth in section 606(3) of the Michigan Zoning Enabling Act, MCL 125.3606(3), a party must file the appeal within 30 days of the date on which the zoning board of appeals certifies its decision in writing or the date on which it approves the minutes of the meeting at which its decision was made, whichever is earlier.

Your sixth question asks whether appeals to the Court of Appeals of decisions by a circuit court on review of a decision of a zoning board of appeals are now by right rather than by leave as your letter indicates was the case under past practice. An appeal by right is one in which the appellant has a right to be heard by the reviewing court, whereas an appeal by leave is one in which the reviewing court has the discretion to deny the appellant's request to be heard.

MCR 7.203(A)(1)(a) provides that the Court of Appeals has jurisdiction of an appeal of right filed from a final order or judgment of the circuit court "except" a judgment or order of the circuit court "on appeal from any other court or tribunal." MCR 7.203(A)(2) also provides that the Court of Appeals has jurisdiction of an appeal of right from a judgment or appeal of a court "from which appeal of right to the Court of Appeals has been established by law or court rule."

Section 606(3) of the MZEA, MCL 125.3606(3), states that "[a]n appeal may be had from the decision of any circuit court to the court of appeals." No provision in the MZEA, including MCL 125.3606(3), specifies that appeals of the zoning decisions of the circuit court shall be "of right" to the Court of Appeals. Research discloses no statute or court rule providing that appeals of the zoning decisions of the circuit court sitting on review of the decisions of zoning boards of appeal shall be by right to the Court of Appeals. In addition, "unless an appeal of right has been categorically established by law or court rule, appeal is by leave." Watt v Ann Arbor Bd of Education, 234 Mich App 701, 705; 600 NW2d 95 (1999).

It is my opinion, therefore, in answer to your sixth question, that appeals to the Court of Appeals from decisions by a circuit court on review of a decision of the zoning board of appeals may only be taken by application for leave to appeal to that court in accordance with MCR 7.203 and not as a matter of right.

Your seventh question asks whether the provisions regarding the effective date of a zoning ordinance and the requirement for publication of a notice of its adoption set forth in section 401(6) and (7) of the MZEA will control even if a city charter imposes other requirements for effective dates and the publication of notice of adoption of ordinances.

Regarding any date, deadline, or requirement set forth in the MZEA, including those about which you inquire and related provisions for referendum petitions and elections in section 402, MCL 125.3402, the provisions of the MZEA control over any conflicting requirements of a city charter. This result is mandated by section 36 of the Home Rule City Act, MCL 117.36, which states that "[n]o provision of any city charter shall conflict with or contravene the provisions of any general law of the state." Const 1963, art 7, � 22 provides with regard to the powers of cities and villages: "Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law." It should be noted, however, that section 401(6), MCL 125.3401(6), expressly authorizes a city council to postpone the effective date of a zoning ordinance from the seventh day after publication of notice of its adoption to such later date as may be specified by the city council. In the exercise of its judgment, a city council may wish to select the effective date of any zoning ordinance or zoning amendment to be consistent, as much as it determines to be feasible, with its charter requirements for city ordinances that would otherwise be applicable in that city.

It is my opinion, therefore, in answer to your seventh question, that the provisions as to the effective date of a zoning ordinance and for the publication of notice of its adoption set forth in section 401(6) and (7) of the Michigan Zoning Enabling Act, MCL 125.3401(6) and (7), will control over conflicting requirements for the effective date of a city ordinance or for the publication of notice of its adoption set forth in a city charter.

Your eighth question asks what steps a municipality should take to comply with the requirement in section 103(2) of the MZEA of providing notice of zoning applications to the occupants of all structures located within 300 feet of a property that is the subject of certain zoning proceedings.

Section 103(2) of the MZEA, MCL 125.3103(2), provides:

Although it may be prudent for a municipality to consult with its attorney regarding the particular details that may apply in a given situation, a municipality may comply with the notice requirements of section 103(2) by delivery of a written notice in person or by the sending of written notice by mail. As indicated in your letter, section 103(3) permits letters to be addressed to "occupant" if the name of an occupant of a structure is not known. MCL 125.3103(3) (stating "[i]f the name of the occupant is not known, the term 'occupant' may be used in making notification under this subsection").

It is my opinion, therefore, in answer to your final question, that a municipality may comply with the requirements in section 103(2) of the Michigan Zoning Enabling Act, MCL 125.3103(2), for giving notice to the occupants of structures within 300 feet of a property subject to certain zoning actions for which this type of notice is required or by either delivering a written notice in person to an occupant of each unit in such a structure, or by mailing a letter to one or more occupants of each unit in such a structure by name if known or addressed to the "occupant" if the name of an occupant is not known.

MIKE COX