The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5197

May 23, 1977

UNITED STATES CONSTITUTION:

Equal Protection Clause of 14th Amendment

ZONING AND PLANNING:

Property ownership requirement for service as member of village planning commission

BOARDS AND COMMISSIONS:

Property ownership requirement for service as member of village planning commission

A requirement that an individual be a property owner to serve as a member of a village planning commission is invalid.

Honorable John F. Toepp

State Senator

The Capitol

Lansing, Michigan 48901

You have requested my opinion with regard to the validity of an ordinance which specifies that membership of a village planning commission be restricted to registered electors who are property holders.

The Village of Edmore enacted Ordinance 228 on December 13, 1976. Section 2 of that ordinance states in pertinent part:

'. . . The Commission shall consist of the Village President . . . and six (6) registered electors who are property owners in the Village of Edmore who shall maintain one (1) vote each.'

The statutory basis upon which the village planning commission is created is 1931 PA 285; MCLA 125.31 et seq; MSA 5.2991 et seq, hereinafter cited as Municipal Planning Act, which provides in pertinent part in Section 2:

'Any municipality is hereby authorized and empowered to make, adopt, amend, extend, add to, or carry out a municipal plan as provided in this act and create by ordinance a planning commission with the powers and duties herein set forth. . . .'

The membership of the commission would be required to participate in the adoption of a master plan for the village. The mandate for this is found in the Municipal Planning Act, supra, in section 6 which provides in pertinent part:

'The commission shall make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission's judgment, bear relation to the planning of the municipality. The plan, with the accompanying maps, plats, charts, and descriptive matter shall show the commission's recommendations for the development of the territory, including, among other things, . . . the general location, character, layout and extent of community centers and neighborhood units; and the general character, extent and layout of the replanning and redevelopment of blighted districts and slum areas. . . .'

The above-cited section sets forth requirements which will affect all of the inhabitants of the community. Non-property holders are also affected by the implementation of the Municipal Planning Act, supra, as is evidenced in section 7, which states in pertinent part:

'. . . The plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted, and harmonious development of the municipality and its environs which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development. . . .'

The above-quoted sections reveal that both property and non-property holders will be affected by any decision made by the village planning commission. My focus will now turn to the requirement of property ownership as a valid basis for membership on the village planning commission.

A similar question was recently adjudicated by the Michigan Court of Appeals. The court analyzed the requirement of ownership of taxable property within a school district as a condition of eligibility to office as a school board member. In Williams v Lansing Board of Ed, 69 Mich App 654, 657, 658; 245 NW2d 365, 367 (1976), the court stated in pertinent part:

'Both parties acknowledge that Turner v Fouche, 396 US 346; 90 S Ct 532; 24 L Ed 2d 567 (1970), appears to be dispositive of the constitutional issue. In Turner, a provision of Georgia law requiring that members of county boards of education be freeholders was held to violate the Equal Protection Clause of the 14th Amendment of the United States Constitution. The property ownership requirement, said the Court, did not pass 'the traditional test for a denial of equal protection: whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective', 396 US 346, 362, adding that 'it seems impossible to discern any interest the qualifications can serve'. Id., 363.'

We concur with the conclusion of the trial judge that Sec. 492 of the School Code is indistinguishable from the freeholder provision of the Georgia statute in purpose and effect, is irrelevant to the capability or educational concern of a propective board member, and is thus violative of the 14th Amendment of the United States Constitution.'

Consistent with the decision in Williams, supra, OAG 1973-1974, No. ___, p 225 (February 28, 1973) held that the requirement that members of a township planning commission be limited to property owners of the township violates the equal protection clause of the 14th Amendment to the United States Constitution.

It is therefore my opinion that the requirement that an individual be a property owner to serve as a member of a village planning commission is invalid.

Frank J. Kelley

Attorney General