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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. 5770

August 12, 1980

TOWNSHIPS, CHARTER:

Publication of new zoning ordinance or amendment to existing zoning ordinance

Procedure for adoption of new zoning ordinance or amendment to existing zoning ordinance

ZONING:

Publication of new zoning ordinance or amendment to existing zoning ordinance

Procedure for adoption of new zoning ordinance or amendment to existing zoning ordinance

A charter township board may introduce and pass a new zoning ordinance or amendment to a zoning ordinance at the same meeting. Where a citizen requests a hearing on a new zoning ordinance or amendment to an existing ordinance, the charter township board may adopt the new ordinance or amendment to an existing ordinance at the same meeting at which the hearing was provided.

A new zoning ordinance or amendment to an existing zoning ordinance or a charter township must be published at least once in the form introduced prior to final adoption by the charter township board and at least once in its final form after its adoption.

Honorable Richard D. Fessler

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion upon the following questions:

(1) May a charter township introduce and pass a new zoning ordinance or an amendment to an existing zoning ordinance at the same meeting, or must an ordinance or amendment be introduced at a board meeting, and passed at a subsequent meeting?

(2) After introduction of a new zoning ordinance or amendment to an existing zoning ordinance at a charter township board meeting of a charter township, may publication prior to final adoption be in the same form as prescribed in Sec. 11a of the Rural Zoning Act for final adoption?

(3) After final passage, must the entire new zoning ordinance or the entire amendment to the zoning ordinance of a charter township be published?

The charter township act, 1947 PA 359, Sec. 20, MCLA 42.20; MSA 5.46(20), generally provides that the passage of a ordinance in a charter township must occur at a meeting other than the one at which the ordinance was introduced, and that no ordinance shall be finally passed until published at least once in the form in which it was introduced.

However, the township rural zoning act, 1943 PA 184, as last amended by 1980 PA 43, MCLA 125.271 et seq; MSA 5.2963(1) et seq, which applies to charter townships, as well as general law townships, contains enactment and publication procedures which in certain instances do not coincide with those contained in 1947 PA 359, Sec. 20, supra. Inasmuch as 1943 PA 184, supra, is special legislation applicable to zoning ordinances, and 1947 PA 359, supra, is a general statute applicable to charter township ordinances, 1943 PA 184, supra, would control to the extent of any inconsistency arising between the two acts.

In DiPonio v Cockrum, 373 Mich 115, 118; 128 NW2d 544 (1964), the Court stated:

'. . . The specific [publication] procedure spelled out in the zoning ordinance statute takes precedence over the general statute.'

See also 1943 PA 184, Sec. 28, which provides:

'Insofar as the provisions of any ordinance lawfully adopted under the provisions of this act are inconsistent with the provisions of ordinances adopted under any other law, the provisions of ordinances adopted under the provisions of this act, unless otherwise provided in this act, shall be controlling.

The zoning act, 1943 PA 184, supra, provides for the adoption of the text of a proposed zoning ordinance by the zoning board, with recommendation of the tentative ordinance to the township board after notice and public hearing, and provision for review by the appropriate county agency. When a proposed new zoning ordinance, or an amendment to an existing zoning ordinance, is referred to the township board, the township board (1) may return the same to the township zoning board to consider changes; (2) may schedule additional hearings on its own initiative; (3) must hold a hearing upon the request of a property owner, (1) or (4) proceed to adoption pursuant to 1943 PA 184, supra, Sec. 11, as last amended by 1980 PA 43:

'. . . After a hearing at a regular meeting or at a special meeting called for that purpose the township board may adopt . . ., in accordance with this act, a zoning ordinance . . . with or without amendments that have been previously considered by the zoning board or at a hearing, and may give the ordinance immediate effect. If an ordinance is given immediate effect, the limitation of section 1 of Act No. 191 of the Public Acts of 1939, as amended, being section 41.191 of the Michigan Compiled Laws, providing an ordinance shall not take effect until 30 days after publication, shall not apply.' [Emphasis supplied.]

Under 1943 PA 184, Sec. 11, supra, and where additional hearings are not scheduled, adoption of the ordinance may occur at the same meeting of the township board at which referral occurred, or immediately after the mandatory hearing provided to a property owner following proper request, supra fn 1.

It is therefore, my opinion that a new zoning ordinance, or an amendment to an existing zoning ordinance, may be adopted (1) at the same meeting of the charter township board at which it is introduced following referral from the township zoning board, or (2) immediately after a hearing provided to a property owner pursuant to request, as authorized by 1943 PA 184, Sec. 11, supra.

Turning to your second question, regarding publication prior to final adoption, 1943 PA 184, supra, Sec. 9, as last amended by 1978 PA 637, provides the zoning board shall hold not less than 1 public hearing prior to submitting its recommendations concerning a tentative zoning ordinance to the township board, and states:

'. . . The notices shall include the places and times at which the tentative text and any maps of the zoning ordinance may be examined.'

At the time that the zoning board publishes this notice of hearing, notice must be given of the time and place where the tentative text of the ordinance may be examined. There is no requirement that the text of the tentative ordinance be published at that time.

1943 PA 184, supra, Sec. 11a (2), which governs the publication of ordinances and ordinance amendments after final adoption, provides:

'The zoning ordinance, as well as subsequent amendments or supplements shall be filed with the township clerk, and 1 notice of ordinance adoption shall be published in a newspaper of general circulation in the township within 15 days after adoption. The notice of ordinance adoption shall include the following information:

'(a) In the case of a newly adopted zoning ordinance the following statement: 'A zoning ordinance regulating the development and use of land has been adopted by the township board of the township of _____'.

'(b) In the case of an amendment to an existing zoning ordinance, either a summary of the regulatory effect of the amendment, including the geographic area affected, or the text of the amendment.

'(c) The effective date of the ordinance.

'(d) The place and time where a copy of the ordinance may be purchased, or inspected.' [Emphasis supplied.]

Thus, it is apparent that 1943 PA 184, Sec. 11a, supra, specifies publication requirements to be employed after final adoption of a zoning ordinance, whereas 1943 PA 184, Sec. 9, supra, pertains to the public hearing before the zoning board concerning its consideration of a tentative zoning ordinance. Neither provision refers to publication of the ordinance text prior to final adoption of the ordinance. Since the specific statute, 1943 PA 184, supra, contains no requirement as to publication before final adoption, the general provisions of 1947 PA 359, supra, must be examined. DiPonio v Cockrum, supra; 1943 PA 184, Sec. 28, supra. In addition, the legislative history of 1943 PA 184, Sec. 11a, supra, as added by amendatory 1978 PA 627, discussed infra, indicates examination of applicable statutory publication requirements is appropriate.

1947 PA 359, Sec. 20, supra, requires that no charter township ordinance shall be finally passed until published at least one time in the form in which it was introduced.

Inasmuch as 1943 PA 184, Sec. 11a, supra, is silent concerning publication before final adoption, and conversely 1947 PA 359, Sec. 20, supra, requires publication in the form in which introduced at least one time before final adoption, the provisions of the latter general statute take precedence. DiPonio v Cockrum, supra.

Therefore, the publication requirement of 1947 PA 359, Sec. 20, supra, is controlling.

Thus, in response to your second question, it is my opinion that a proposed new zoning ordinance or amendment to an existing ordinance must be published at least one time in the form introduced, prior to final adoption by the charter township board, pursuant to 1947 PA 359, Sec. 20, supra.

Your third question, which refers to 1943 PA 184, Sec. 11a, supra, concerns the requirements for the publication of a new zoning ordinance, and amendments to a zoning ordinance, following adoption. In the ensuing discussion, publication requirements with respect to a new zoning ordinance, as contrasted to amendments to an existing ordinance, will be separately examined.

1943 PA 184, Sec. 11a(a) supra, does not specifically provide for publication of the text of a new zoning ordinance, following final adoption. 1943 PA 184, Sec. 11a(a) supra, provides that in the case of a newly adopted zoning ordinance, a statement of ordinance adoption must be published within 15 days after adoption, and no further requirement is imposed. Thus, 1943 PA 184, Sec. 11a, supra, is silent on the question of publication, of the text of a new zoning ordinance following its adoption. Therefore, the general provisions of 1947 PA 359, supra, must be reviewed in accordance with the reasoning employed in my discussion of your previous question. DiPonio v Cockrum, supra. 1943 PA 184, Sec. 28, supra.

1947 PA 359, supra, Sec. 22, states:

'Each ordinance passed by a [charter] township board shall be published at least once and all such ordinances shall become effective immediately upon the publication thereof, unless a date upon which such ordinance shall become effective, which is subsequent to the date of the publication thereof is specifically provided in the ordinance itself. (3) The publication of any ordinance in full after its final passage as a part of the published proceedings of the township board shall constitute publication of such ordinance as required herein.' [Emphasis supplied.]

Accordingly, in the case of a new zoning ordinance, the publication provision contained in 1947 PA 359, Sec. 22, supra, is controlling, and takes precedence, with the exception that a charter township zoning ordinance given immediate effect takes effect upon adoption and publication of the ordinance. Eg. supra, Edel v Filer Township, 49 Mich App 210; 211 NW2d 547 (1973), lv den 391 Mich 753. DiPonio v Cockrum, supra. 1943 PA 184, Sec. 28, supra.

The legislative history of amendatory 1978 PA 637, which added section 11a to 1943 PA 184, supra, is supportive of this conclusion. Introduced as House Bill 4592 on April 21, 1977 1 House Journal 1977, p 900, the bill contained the following language in proposed section 11a(2):

'The filing and publication requirements in this section relating to township zoning ordinances supercede other statutory requirements relating to filing and publication of township ordinances.'

HB 4592 was referred to the Committee on Towns and Counties, which submitted a substitute bill and recommended its approval, the provisions of which substitute bill deleted proposed section 11a(2). 1 House Journal 1978, p 1011. Substitute HB 4592, with the deletion of proposed section 11a(2), was adopted by the House on April 20, 1978. 1 House Journal 1978, p 1320. The Senate Committee on State Affairs reported out its own substitute for the house substitute to HB 4592, but the language contained in HB 4592, section 11a(2), as introduced, was also not part of the Senate substitute. 3 Senate Journal 1978, p 2577. On December 14, 1978, the Senate passed its substitute to HB 4592. 3 Senate Journal 1978, p 2673. On December 14, 1978, the House concurred in the Senate substitute. 3 House Journal 1978, p 3817. The Governor approved the bill on January 11, 1979, and as 1978 PA 637, took effect on March 1, 1979.

Therefore, the legislative history of section 11a of amendatory 1978 PA 637, supra, suggests that the legislature did not intend the publication provisions of 1943 PA 134, Sec. 11a, supra, to be all-encompassing and supercede other applicable statutory requirements relative to publication of township ordinances. Thus, with respect to newly adopted zoning ordinances, in charter townships the publication provision contained in 1947 PA 359, Sec. 22, supra, is controlling as to general law townships, the publication requirement contained in 1939 PA 191, Sec. 1, supra, must be observed, with the exception that in zoning ordinances given immediate effect in such townships, the limitation of 1939 PA 191, Sec. 1, supra, that an ordinance shall not take effect until 30 days after publication, is inapplicable. 1943 PA 184, Sec. 11, supra, fn 3.

With respect to subsequent amendments to an existing zoning ordinance, 1943 PA 184, Sec. 11a(b), supra, states that in such cases, either a summary of the regulatory effect of the amendment, or the text of the amendment, along with other specific information, shall be published in a notice of ordinance adoption. Where the charter township publishes the full text of the amendment, 1947 PA 359, Sec. 22, supra, providing for publication of each ordinance at least once, is satisfied. However, the publication provision of 1947 PA 359, Sec. 22, supra, is not satisfied where only a summary of the regulatory effect of the zoning ordinance is published, as opposed to publication of the full text. In light of the legislative history of section 11a of amendatory 1978 PA 637, discussed supra, it is evident that the publication requirements of 1947 PA 359, Sec. 22, supra, must be followed.

Further, it may also be observed that publication of the full text of a new zoning ordinance, or an amendment thereto, facilitates the right of referendum concerning zoning matters which was provided charter township electors, for the first time, by amendatory 1978 PA 637, supra. OAG, 1979-1980, No 5541, p ___ (August 14, 1979).

Therefore, in response to your third question, it is my opinion that upon final adoption in a charter township of a new zoning ordinance or amendment thereto, the entire ordinance or text of the amendment must be published pursuant to 1947 PA 359, Sec. 22, supra.

Frank J. Kelley

Attorney General

(1) 1943 PA 184, Sec. 11, as last amended by 1980 PA 43, supra, further provides the township board '. . . shall grant a hearing on a proposed ordinance provision to a property owner who by certified mail addressed to the clerk of the township board requests a hearing and the township board shall request the zoning board to attend the hearing.'

(2) Added by 1978 PA 637, MCLA 125.281a; MSA 5.2963(11a).

(3) It is noted that where a zoning ordinance is adopted in a general law township and is given immediate effect upon publication, the requirement of 1939 PA 191, Sec. 1; MCLA 41.191; MSA 5.6(1) that ordinances shall not become effective until 30 days after publication, is inapplicable. 1943 PA 184, Sec. 11, supra, p. 3.

 


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