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. 5535 August 9, 1979 ZONING: Signed protests to zoning ordinance amendment CITY CLERK: Signed protests to zoning ordinance amendment A written protest against adoption of a proposed zoning ordinance amendment may be presented either at or before the hearing required by the city and village zoning act. The protest shall be delivered to the city clerk of the legislative body, who is the appropriate officer for accepting delivery of documents to the legislative body of the city. Honorable Mark Clodfelter State Representative The Capitol Lansing, Michigan 48909 You have inquired as to the manner in which duly signed protests to zoning ordinance amendments may be presented; i.e., whether the same may be submitted to the city clerk at a meeting of the legislative body, or to a member or officer of the legislative body at such a meeting. The procedure for protesting the adoption of zoning ordinance amendments is set forth in 1921 PA 207, Sec. 4, MCLA 125.584; MSA 5.2934, which provides in part: '(1) The legislative body of a city or village may provide by ordinance for the manner in which regulations and boundaries of districts or zones shall be determined and enforced or amended, supplemented or changed. . . . ' (4) After the ordinance and maps have in the first instance been approved by the legislative body of a city or village, amendments or supplements thereto may be made as provided in this section, except that if an individual property or several adjacent properties are proposed for rezoning, notice of the proposed rezoning and hearing shall be given to the owners of the property in question at least 15 days before the hearing. '(5) Upon presentation of a protest petition meeting the requirements of this subsection, an amendment to a zoning ordinance which is the object of the petition shall be passed only by a 2/3 vote of the legislative body, unless a larger vote, but not to exceed 3/4 vote, is required by ordinance or charter. The protest petition shall be presented to the legislative body before final legislative action on the amendment, and shall be signed by 1 of the following: (a) The owners of at least 20% of the area of land included in the proposed change. (b) The owners of at least 20% of the area of land included within an area extending outward 100 feet from any point on the boundary of the land included in the proposed change. '(6) For purposes of subsection (5), publicly owned land shall be excluded in calculating the 20% land area requirement. Section 4 requires that protest petitions be presented to the legislative body 'before final legislative action on the amendment.' It will be noted that a written protest against the proposed zoning amendment must be signed by a minimum number of owners of land and, therefore, it will be necessary for some official to check the number and validity of the signatures to determine whether the petition complies with the statutory requirement. The city clerk, as clerk of the legislative body, would be the appropriate official for the filing and review of such petitions. In fourth class cities, the powers and duties of the clerk are provided for by statute: 'The city clerk shall keep the corporate seal, and all the documents, official bonds, papers, files and records of the city, not by this act or the ordinances of the city entrusted to some other officer; he shall be clerk of the council; shall attend its meetings, record all its proceedings, ordinances and resolutions, and shall countersign and register all licenses granted; he shall, when required, make and certify under the seal of the city copies of the papers and records filed and kept in his office; and such copies shall be evidence in all places of the matters therein contained, to the same extent as the original would be; he shall possess and exercise the powers of a township clerk, so far as the same are required to be performed within the city; and he shall have authority to administer oaths and affirmations.' (1) In home rule cities, similar powers and duties are provided for by charter, as required by the home rule cities act. (2) No officer is designated in 1921 PA 207 for the receipt and certification of such petitions, and this function would be performed by the city clerk as with the filing and certification of other types of petitions. For example, city clerks receive for filing and certify to the sufficiency of nominating petitions, (3) initiatory petitions for charter revision and amendment, (4) and referendum petitions on local officers' compensation, (5) inter alia. Therefore, inasmuch as protest petitions must be examined and certified in advance of final legislative action on zoning ordinance amendments, it is my opinion that when protest opinions are presented, they should be delivered personally or by mail to the city clerk who is the appropriate officer for service or delivery of documents to the legislative body of the city. Frank J. Kelley Attorney General (1)
(2)
1909 PA 279, Sec. 3; MCLA 117.3; MSA 5.2073.(3)
1954 PA 116, Sec. 552; MCLA 168.552; MSA 6.1552.(4)
1909 PA 279, Sec. 25; MCLA 117.25; MSA 5.2104.(5)
1909 PA 279, Sec. 5c; MCLA 117.5c; MSA 5.2084(3).