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. 5454

March 8, 1979

ZONING:

Adult foster care facilities

ADULT FOSTER CARE FACILITIES:

Exemption from zoning ordinances

DEPARTMENT OF SOCIAL SERVICES:

Exemption of adult foster care facilities from zoning ordinances

With respect to a state licensed residential facility providing supervision or care to six or less persons, the provisions of state law preempt a township's zoning ordinance which limits occupancies in a single family zoning district to two unrelated individuals.

Since supervisory personnel who reside in a state licensed residential facility do not receive 'resident services,' such persons are not counted in determining whether the state licensed facility exceeds the six person maximum set forth in the statute.

Honorable Ernest W. Nash

State Representative

House of Representatives

Lansing, Michigan

You have requested clarification of OAG, 1977-78, No. 5365, p. ___, (August 28, 1978) by asking the following questions:

1. The Delta Township Zoning Ordinance limits the occupancy of residences within single-family zoning districts to two unrelated individuals. Therefore, in every instance where more than two (2) unrelated individuals desire to live together in a single-family residential zoning district a variance from the ordinance is required. Do the provisions of Public Act 395 of 1976 take precedence over this regulation, which is contained within the Township Zoning Ordinance?

2. Attorney General Kelley's response to Representatives Hollister, Brown, Trim, Larsen and the Director of the Department of Social Services states that MCLA 125.286a makes it clear that Adult Foster Care Facilities, which house six or less persons, may not be excluded from residential zones. Does the limitation of six persons apply only to supervised persons or does it include all persons, including members of the resident family, who live within a licensed Adult Foster Care Facility?

In answer to the first question, attention must be directed to the case of People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), mentioned in OAG, 1977-78, No. 5365, supra. In that case, the court, in examining the history of state pre-emption of local ordinances, concluded that:

'A municipality is precluded from enacting an ordinance if (1) the ordinance is in direct conflict with the state statutory scheme. . . .' Llewellyn, 401 Mich at 322

Further:

'A direct conflict exists . . . when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.' Llewellyn, 401 Mich 322, fn 4

That portion of Delta Township's zoning ordinance which limits non-related occupancies in single family zoning districts to two unrelated individuals conflicts directly with 1976 PA 395, Sec. 3b; MCLA 125.583b; MSA 5.2933(2) as amended by 1977 PA 28. That statute provides in part:

'(1) As used in this section, 'state licensed residential facility' means a structure constructed for residential purposes that is licensed by the state pursuant to Act No. 287 of the Public Acts of 1972, as amended, being sections 331.681 to 331.694 of the Michigan Compiled Laws, or Act No. 116 of the Public Acts of 1973, as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.

(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zones for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings or similar density in the same zone.

(3) This section shall not apply to adult foster care facilities licensed by a state agency for care and treatment of persons released from or assigned to adult correctional institutions.' (Emphasis supplied)

It must also be remembered that:

'. . . townships have no police power of their own, they exercise such power only by virtue of grant by the State. In the case of zoning, the power is extended through State zoning enabling acts . . .' Fredal v Forster, 9 Mich App 215, 229; 156 NW2d 606 (1967). See also, Lake Township v Systma, 21 Mich App 210; 175 NW2d 337 (1970)

Therefore, the provisions of 1976 PA 395, supra, take precedence over the Delta Township ordinance limiting non-related occupancies in single family zoning districts insofar as that ordinance does not permit the operation of state licensed residential facilities providing resident services for 6 or less persons.

In response to the second question, 1976 PA 396, supra, defines a 'state licensed residential facility' as one '. . . which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.' Since members of the resident family and supervisory personnel do not receive 'resident services', such persons are not counted in determining whether the facility exceeds the 6 person maximum permitted under the zoning exemption of 1976 PA 395, Sec. 3b, supra.

Frank J. Kelley

Attorney General