STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5312

June 14, 1978

MUNICIPALITIES:

Urban Cooperation Act

CONSTITUTION OF MICHIGAN:

Art 7, Sec. 28 (joint administration of municipal functions)

ZONING & PLAINNING:

Joint administration of zoning ordinances by municipalities

A municipal corporation has no inherent power of zoning and may only pursue its policies of use restriction pursuant to an enabling statute.

Because legislative bodies of local units of government may not delegate their legislative functions, local units of government may not join together to create an authority with power to zone land. However, although the legislative function of adopting a zoning ordinance may not be delegated, administrative functions associated with zoning may be delegated to a joint public agency pursuant to 1967 (Ex Sess) PA 7 & 8 if the municipalities involved are subject to the same zoning enabling act.

Honorable Steve Monsma

State Representative

93rd District

The Capitol

Lansing, Michigan

Citing the Urban Cooperation Act of 1967, 1967 Ex Sess PA 7, ⁽¹⁾ which provides for interlocal agreements, and 1967 Ex Sess PA 8, ⁽²⁾ which provides for intergovernmental transfers of functions and responsibilities, you have requested my opinion upon the following question:

Const 1963, art 7, Sec. 28 states:

1967 Ex Sess PA 7, supra, Secs. 6 and 7 of said act provide that the joint administration may be by one or more parties to the inter-local agreement or by a separate legal or administrative entity.

1967 Ex Sess PA 8, supra, Sec. 2 provides:

A municipal corporation has no inherent power of zoning and therefore may only pursue its policies of use restriction pursuant to a statute enabling it to do so. Schilling v Midland, 38 Mich App 568; 196 NW2d 846 (1972); Krajenke Buick Sales v Hamtramck City Engineer, 322 Mich 250; 33 NW2d 781 (1948) and Detroit Osteopathic Hospital v City of Southfield, 377 Mich 128; 139 NW2d 728 (1966).

The legislature has therefore delegated to local governments the authority to zone property by enactment of several enabling acts. See the city and village zoning act, 1921 PA 207; ⁽³⁾ the township rural zoning act, 1943 PA 184; ⁽⁴⁾ and the county rural zoning enabling act, 1943 PA 183. ⁽⁵⁾ See also 1958 PA 171, ⁽⁶⁾ providing for the continuation of zoning regulations in newly incorporated villages or in territories attached to villages. Each enabling act recites the authority and procedures for zoning in the type of municipality covered by the respective act.

Your question, referring to 'an authority with the power to zone land,' refers to the power to exercise the legislative function of adopting and amending zoning ordinances, rather than the administrative function of administering zoning procedures. The distinction between legislative and administrative zoning functions is discussed generally in Kropf v City of Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974). It has been held in a line of decisions that governing bodies of municipalities may not delegate their legislative powers regarding zoning although they may delegate administrative powers. See: City of Detroit v S. Loewenstein & Son, 330 Mich 359; 47 NW2d 646 (1951); Temple v Portage Township, 365 Mich 474; 113 NW2d 789 (1962); Florka v City of Detroit, 369 Mich 568; 120 NW2d 797 (1963); Marathon Oil Company v Plymouth Township, 25 Mich App 399; 181 NW2d 668 (1970); and Mobil Oil Corporation v City of Clawson, 36 Mich App 46; 193 NW2d 346 (1971). Compare Nicholas v Clinton County Board of Commissioners, 43 Mich App 527; 204 NW2d 351 (1972), leave to appeal denied, 389 Mich 817. In Marathon Oil, supra, 25 Mich App at p 401 and Mobil Oil, supra, 36 Mich App at p 51, the following is quoted with approval from 8A McQuillin, Municipal Corporations (3d ed), Sec. 25.215, p 109:

Citing Temple, supra, 8A McQuillin, Municipal Corporations (3d ed), Sec. 25.216, p 111 states:

It is my opinion that legislative bodies of local units of government may not delegate their legislative functions and therefore may not join together to create an authority with the power to zone land.

However, although the legislative function of adopting a zoning ordinance may not be delegated, the administrative functions associated with zoning may be delegated to a joint public agency pursuant to 1967 Ex Sess PA 7 and 8, supra, if two or more municipalities are subject to the same zoning enabling act. The reason that it is necessary for the municipalities to be subject to the same act is that each of the zoning enabling acts, referred to above, contains provisions that apply only to particular types of municipalities. An interlocal agreement between municipalities having separate and distinct enabling legislation could result in an inconsistency of application between the different statutes. If, for example, there were joint administration of zoning matters under an interlocal agreement between a city and a township, the city would be governed by 1921 PA 207, supra, and the township would be governed by 1943 PA 184, supra, and the two may not be compatible. Therefore, it is my opinion that only municipalities governed by the same zoning enabling act may execute an interlocal agreement providing for creation of a joint zoning authority to administrater the zoning ordinances of each. In view of the statutory difficulties inherent in local governmental units of government banding together to create an authority with power to zone, it is suggested that this issue be the subject of further legislative study.

Frank J. Kelley