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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. 5936 July 24, 1981 CITIES: Local act city's zoning ordinance based on historic and aesthetic considerations Authority of city architect to approve plans for structures within the historic district ZONING: Ordinance based on historic and aesthetic considerations The historic district article of the City of Mackinac Island Zoning Ordinance is valid as based upon historic and aesthetic considerations. The City of Mackinac Island may delegate to the city architect power to review and approve plans for structures within the historic district. Honorable Phil Arthurhultz Senate Majority Whip Capitol Building Lansing, Michigan You have requested my opinion upon two questions which relate to that portion of Mackinac Island which is subject to the jurisdiction of the City of Mackinac Island. (1) The first question is: May an ordinance providing for preservation of structures within a historic district apply to nonhistoric structures? City of Mackinac Island Zoning Ordinance (2) #146, art 8, 'H' HISTORIC DISTRICT, provides in pertinent part: '801. INTENT. The regulations set forth in this section are adopted to promote and protect the public health, safety and welfare, and more particularly in view of the following facts: 'a. One of the great scenic islands of the Great Lakes area lies within the borders of the City, rich in Indian lore and historic interest dating back to the year 1670. 'b. By reason of these facts, the City has become a world renowned recreational resort. 'c. The City is, in effect, the steward for mankind for the preservation of both its natural beauty and its historical monuments. 'd. The welfare of the City requires the protection and enhancement of the attractiveness of the City as a recreational resort, as contributing to the economic soundness of the City and the economic and social welfare of its inhabitants. '802. ARCHITECTURAL REVIEW. Within that part of the City designated as 'H' Historic District on the map constituting Section 302 of this ordinance, no building shall be constructed, reconstructed or altered in exterior appearance unless and until plans therefor have been submitted to and have been approved by the City Architect who shall be designated and engaged by the Mayor and Council of the City of Mackinac Island to serve in such capacity. '803. STANDARDS FOR APPROVAL. In reviewing the plans for construction, reconstruction or alterations of structures in the 'H' Historic District, the City Planning Commission, the City Architect . . . shall give consideration to, and shall find and certify that, the architectural exterior features, heights, appearance, color and texture of the materials of exterior construction . . . are congruous and in harmony with these [sic, 'those'] of the restored historical structures within and contiguous to the 'H' Historic District.' [Emphasis supplied.] In addition, the zoning ordinance, supra, art 20, ADMINISTRATION AND ENFORCEMENT, relevantly states: '2001. BUILDING PERMIT REQUIRED. . . . The City Architect shall review all applications for building permits, consider the recommendations of the Building Inspector, and then return such applications to the Building Inspector with recommendations of the City Architect approving of same, rejecting same, or proposing changes in plans. The Building Inspector shall be bound to approve or reject applications for building permits in keeping with the recommendations of the City Architect. Appeal from the decisions of the Building Inspector and City Architect may be made by any applicant for a building permit to the Board of Zoning Appeals as provided for in Article 21 of this Ordinance . . ..' OAG, 1977-1978, No 5312, pp 476, 477 (June 14, 1978), stated: '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. . . . Each enabling act recites the authority and procedures for zoning in the type of municipality covered by the respective act.' Addressing your first question, and as noted in footnotes 1 and 2, supra, the historic district provision of article 8 above set forth was enacted as part of the zoning ordinance on December 19, 1957. The zoning ordinance did not create a city historical commission, and the City had not previously, nor has it subsequently, created by ordinance an historical commission pursuant to 1957 PA 213; MCLA 399.171 et seq; MSA 5.3395 et seq. Similarly, the City has not created an historic district commission pursuant to 1970 PA 169, Sec. 4; MCLA 399.204; MSA 5.3407(4), and has not established by ordinance an historic district pursuant to 1970 PA 169, supra, Secs. 3 and 5, as last amended by 1980 PA 125. (3) Therefore, it is apparent that the City's zoning ordinance with its historic district article was not adopted under 1970 PA 169, supra. (4) 1921 PA 207; MCLA 125.581 et seq; MSA 5.2931 et seq, is known as the city and village zoning act. 1921 PA 207, supra, was the first statute which authorized cities and villages to establish districts or zones wherein the use of land and structures may be regulated. (5) As a special charter city incorporated by a local act of the Legislature, supra, fn 1, the City of Mackinac Island has statutory authority to enact zoning ordinances under 1921 PA 207, supra. (6) In determining the legality of the historic district portion of the City's zoning ordinance under the statutory authorization of 1921 PA 207, supra, the provisions of the act must be examined. See fn 2 supra. See Board of Road Commissioners of Wayne County v Lingeman, 293 Mich 229; 291 NW 879 (1940). At the time the City's zoning ordinance was enacted, 1921 PA 207, supra, Sec. 1 provided in pertinent part: 'The legislative body of cities and villages may regulate and restrict the location of trades and industries and the location of buildings designed for specified uses and for such purposes divide any city or village into districts of such number, shape and area as may be deemed best suited to carry out the provisions of this section. For each of such districts regulations may be imposed designating the uses for which buildings or structures shall or shall not be erected or altered, and designating the trades and industries that shall be permitted or excluded or subjected to special regulations. Such regulations shall be made in accordance with a plan designed to lessen congestion on the public streets, to promote public health, safety and general welfare, and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the general trend and character of building and population development.' See 1921 PA 207, supra, Secs. 2 and 3. Zoning regulations constitute a valid exercise of the police power where they have a rational relationship to the public health, safety, and welfare of the community. Comer v Dearborn, 342 Mich 471; 70 NW2d 813 (1955); Reid v Southfield, 8 Mich App 553; 155 NW2d 252 (1967). The City's zoning ordinance, art 8, Sec. 801, supra, provides that the regulations therein set forth 'are adopted to promote and protect the public health, safety and welfare,' and thereafter enumerate specific factors in subsections a-d. Briefly, these factors may be described as historical, aesthetic, recreational, and concern for the protection and enhancement of the economic and social welfare of the City and its inhabitants. It has been held that zoning ordinances are valid exercises of the police power, and are clothed with every presumption of validity. Ed Zaagman, Inc. v City of Kentwood, 406 Mich 137; 277 NW2d 475 (1979); Burrell v City of Midland, 365 Mich 136; 111 NW2d 884 (1961). In Central Advertising Co v City of Ann Arbor, 42 Mich App 59, 69; 201 NW2d 365 (1972), reversed on other grounds, 391 Mich 533; 218 NW2d 27 (1974), the Court of Appeals stated that where a municipality seeks to protect the aesthetic well-being of its citizens, it is providing for the 'public welfare,' the same being a broad and inclusive concept.' Under Michigan law, while aesthetic considerations may not be the sole force behind a zoning ordinance, aesthetics may be incidental to a valid exercise of the police power. See, Wolverine Sign Works v Bloomfield Hills, 279 Mich 205; 271 NW 823 (1937); Senefsky v Huntington Woods, 307 Mich 728; 12 NW2d 387 (1943); Frischkorn Construction Co. v Redford Township Building Inspector, 315 Mich 556; 24 NW2d 209 (1946); Hitchman v Township of Oakland, 329 Mich 331; 45 NW2d 306 (1951); Sun Oil Co. v Madison Heights, 41 Mich App 47, 53-54; 199 NW2d 525 (1972) (ordinance limiting height of freestanding signs upheld). But see, National Used Cars, Inc v Kalamazoo, 61 Mich App 520; 233 NW2d 64 (1975), where the Court of Appeals sustained an ordinance, based solely on aesthetics, which required that junkyards be shielded from public view by a solid fence. Cases from other states support the principle that a zoning ordinance based solely or predominantly on aesthetic considerations may be valid. See, Stone v Maitland, 446 F2d 83 (CA 5, 1971) (Florida law); John Donnely & Sons, Inc v Outdoor Advertising Board, 369 Mass 206; 339 NE2d 709 (1975); Old Farm Road, Inc v New Castle, 26 NY2d 462; 259 NE2d 920 (1970). Eg, State v Vestal, 281 NC 517; 189 SE2d 152, 156-158 (1972). However, the majority rule, which has been the rule in Michigan, is that a zoning ordinance based solely or predominantly in aesthetic factors may not stand. See Wolverine Sign Works, and subsequent Michigan decisions, supra; La Salle National Bank v Evanston, 57 Ill 2d 415; 312 NE2d 625 (1974); Mayor and City Council of Baltimore v Mano Swartz, Inc, 268 Md 79; 299 A2d 828 (1973); Naegele Outdoor Advertising Co of Minnesota v Village of Minnetonka, 281 Minn 492; 162 NW2d 206 (1968); State ex rel Stoyanoff v Berkeley, 458 SW2d 305 (Mo, 1970); Pepper Pike v Landskroner, 53 Ohio App 2d 63; 371 NW2d 579 (1977); Board of Supervisors of James City County v Rowe, 216 Va 128; 216 SE2d 199 (1975); Anno, Aesthetic Objectives or Considerations as Affecting Validity of Zoning Ordinance, 21 ALR3d 1222; see, also, Cromwell v Ferrier, 19 NY2d 263; 279 NYS2d 22; 225 NE2d 735 (1967); State v Miller, 83 NJ 402; 416 A2d 821 (1980). While aesthetic factors standing alone may not assure the validity of an ordinance, an ordinance based upon both aesthetic and historic considerations may be upheld. In Maher v New Orleans, 516 F2d 1051 (CA 5, 1975), cert den 426 US 905 (1976), the Court sustained the constitutionality of the Vieux Carre ordinance, an architectural control ordinance specifically applicable to all buildings and lands within the French Quarter of New Orleans. Pursuant to a 1936 constitutional amendment to the Louisiana Constitution, art 4, Sec. 22A, there was vested in the city the authority to create a commission to preserve buildings in the Vieux Carre Section of the city. The Vieux Carre ordinance declares as it objective: 'The Vieux Carre shall have for its purpose the preservation of such buildings in the Vieux Carre section of the City as, in the opinion of the Commission, shall have architectural and historical value and which should be preserved for the benefit of the people of the City and State.' 516 F2d 1051, 1060. In Maher, supra, the plaintiff owned a cottage within the Vieux Carre district, which he desired to demolish and thereafter erect on the cleared site a seven-apartment complex. The Commission refused to grant a demolition permit, and the City Council ultimately forbade issuance of the permit. In sustaining the constitutionality of the Vieux Carre ordinance, the Court of appeals quoted with approval the language of the district court below (371 F Supp 653, 661 (Ed La)): "The courts have repeatedly sustained the validity of architectural control ordinances as police power regulation, especially when historic or touristic districts like the Vieux Carre are concerned." 516 F2d 1051, 1059-1060, footnote 44. Sante Fe v Gamble-Skogmo, Inc, 73 NM 410; 389 P2d 13 (1964); Town of Deering ex rel Bittenbender v Tibbets, 105 NH 481; 202 A2d 232 (1964); Reid v Architectural Board of Review of Cleveland Heights, 119 Ohio App 67; 192 NE2d 74 (1963); Opinion of Justices, 103 NH 268; 169 A2d 762 (1961); Sunad, Inc v Sarasota, 122 So 2d 611 (Fla, 1960); State ex rel Saveland Park Holding Corp v Wieland, 269 Wis 262; 69 NW2d 217, cert den, 350 US 841 (1955); Opinion of the Justices, 333 Mass 773; 128 NE2d 557 (1955); New Orleans v Levy, 223 La 14; 64 So 2d 798 (1953). Anno, Validity and Construction of Zoning Ordinance Regulating Architectural Style and Design of Structure, 41 ALR 3d 1397. Other cases, contrary to Maher, supra, state the minority position that architectural control ordinances are not a valid exercise of the police power where aesthetic considerations are the motivating factors. City of West Palm Beach v State ex rel Duffey, 158 Fla 863; 30 So2d 491 (1947); Board of Supervisors of James City County v Rowe, supra. The Court of Appeals in Maher, supra, then observed: 'Proper state purposes may encompass not only the goal of abating undesirable conditions, but of fostering ends the community deems worthy. . . . 'Nor need the values advanced be solely economic or directed at health and safety in the narrowest senses. The police power inhering in the lawmaker is more generous, comprehending more subtle and ephemeral societal interests. 'The values [that the police power] represents are spiritual as well as physical, aesthetic as well as monetary. It is within the domain of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.' One of the nation's distinctive historic districts is found in New Orleans. The federal, state and local government have each ascertained that benefits would be conferred on society by preservation of the French Quarter. 'Throughout the country, there appears to be a burgeoning awareness that our heritage and culture are treasured national assets. Many locales endowed with historic sites have enacted protective measures for them. . . . The Court is not free to reverse the considered judgment of the legislature that it is in the public interest to preserve the status quo in the Vieux Carre and to scrutinize closely any proposed change in the ambiance by private owners. Where a legislative determination is 'fairly debatable, the legislative judgment must be allowed to control.' We thus conclude that, considering the nationwide sentiment for preserving the country's heritage and with particular regard to the context of the unique and characteristic French Quarter, the objective of the Vieux Carre Ordinance falls within the permissible scope of the police power.' [Emphasis supplied.] 516 F2d 1051, 1060-1061. Similar to the French Quarter, Mackinac Island generates great historic interest. (7) With respect to that portion of the Island under the jurisdiction of the City, through the historic district article of the zoning ordinance, the City seeks to promote, preserve and protect the historic integrity of the historic district. While aesthetic concerns may comprise a contributory factor in the City's determination to establish and regulate the external appearance of structures within the historic district under the zoning ordinance, this element may be viewed as an important but not the sole impelling or moving factor. In preserving the historical integrity of the historic district of the City, and pursuant to the zoning ordinance, the public health, safety and welfare of the City and its inhabitants, as well as those interests of the public at large, are promoted. Accordingly, under these circumstances, where aesthetic and historic considerations clearly form the basis for the ordinance, the historic district article of the City's zoning ordinance (see fn 2 supra) represents a valid exercise of the police power by the City of Mackinac Island, pursuant to 1921 PA 207, supra. The historic nature of portions of the City, and the need to preserve such historic nature by architectural controls over historic areas are sufficient to sustain the ordinance. Under art 8, Sec. 802, supra, of the historic district article of the zoning ordinance, no building within the historic district shall be constructed, reconstructed or altered in exterior appearance without prior approval by the City Architect. In 1921 PA 207, Sec. 2, (8) supra, which authorizes the establishment of districts within a city or village and permits regulation of buildings located therein, provided on December 19, 1957 (the date on which the ordinance was adopted; see fn 2 supra): 'Such regulations shall be uniform for each class of buildings throughout each district. . . . Such regulations shall be made in accordance with a plan designed to lessen congestion on the public streets, to promote public health, safety and general welfare, and shall be made with reasonable consideration, among other things to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the general trend and character of building and population development.' See Faulkner v Town of Chestertown, ---- Md ----; ---- A2d ---- (No 122, decided April 30, 1981), where the Maryland Court of Appeals held that the plaintiff's structure located within the town's historic district was subject to the provisions of the historic district ordinance, despite the fact the structure had no architectural or historical significance, and affirmed the trial court's decree which ordered removal of window siding installed without a permit. As stated by Justice Sutherland for the unanimous Court in Village of Euclid, fn 5, supra, 272 US 365, 388: '[T]he question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridgeman, L.R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place--like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. New York, 264 U.S. 292, 294.' In response to your first question, it is my opinion that the historic district article of the City of Mackinac Island zoning ordinance, adopted pursuant to 1921 PA 207, supra, on December 19, 1957, properly and reasonably applies to construction, reconstruction or alteration in exterior appearance of all structures (historic as well as nonhistoric) located within the historic district, and represents a valid exercise of the police power. Your second question is: Under its historic district ordinance, may the City delegate to the City Architect the power to review and approve plans for construction, reconstruction, or alteration of structures within a historic district? In OAG, No 5312, supra, pp 477-478, it is stated: 'It has been held in a line of decisions that governing bodies of municipalities may not delegate their legislative power regarding zoning, although they may delegate administrative powers. [citations omitted] ". . . There is a distinction between a delegation of power to legislate, which involves discretion as to what law shall be, and a conferring of authority or discretion as to the execution of the law. Executing the policy of a zoning ordinance is an administrative function that may be delegated to administrative officials or boards." [Emphasis supplied.] Under the City's historic district article, Sec. 802, supra, the City has delegated to the City Architect the administrative authority to approve plans for the construction, reconstruction or alteration in exterior appearance of all structures within the historic district. The standards governing approval of such plans are set forth in Sec. 803 of the historic district article of the zoning ordinance, supra. Such plans are also reviewed by the City Planning Commission under Sec. 803, supra, and the criteria for approval which the City has enacted provides adequate guidance to the City Architect to enable the performance of the review functions. See, Maher v New Orleans, supra, 516 F2d 1051, 1062-1063. Where prescribed criteria which guide administrative action in the exercise of delegated authority are provided, such standards are a sufficient guide for the exercise of administrative discretion. State Highway Commission v Vanderkloot, 392 Mich 159, 166; 220 NW2d 416 (1974); Morristown Road Associates v Mayor And Common Council and The Planning Board of the Borough of Bernardsville, 163 NJ Supra 58; 394 A2d 157, 161 (1978). In Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956), where no standards were prescribed, the Court indicated that 'the standards prescribed for guidance [should be] as reasonably precise as the subject matter requires or permits.' See, Midland Township v State Boundary Commission, 401 Mich 641, 668-669; 259 NW2d 326 (1977), app dism, 435 US 1004 (1978). Finally, it must be noted that under 1921 PA 207, Sec. 5, supra, and as provided in art 20, Sec. 2001 of the zoning ordinance, supra, appeals from the decisions of the City Architect and Building Inspector may be made by any applicant for a building permit to the Board of Zoning Appeals. Further review of such decisions is available in the circuit court, pursuant to 1921 PA 207, Sec. 10, supra, thus providing for judicial review of administrative action. Const 1963, art 6, Sec. 28. It is my opinion, in response to your second question, that under the historic district article of the zoning ordinance, adopted pursuant to 1921 PA 207, supra, the City of Mackinac Island may properly delegate to the City Architect power to review and approve plans for construction, reconstruction or alteration of structures within the historic district according to the criteria contained within art 8, Sec. 803, supra. Frank J. Kelley Attorney General (1)
(2)
The City's zoning ordinance and the portions here quoted were adopted December 19, 1957; the portions here quoted have not been subsequently amended.(3)
With respect to the establishment of historic districts by ordinance under 1970 PA 169, Sec. 3, supra, historic regulation is limited to designated historic structures within a historic district and no authority for the regulation of nonhistoric structures is conferred. See letter opinion of March 6, 1975, addressed to Mr. Max Altekruse, Secretary of the Historic District Commission for the Village of Franklin.(4)
While not applicable under the facts here present, the Conservation and Historic Preservation Easement Act, 1980 PA 197; MCLA 399.251 et seq; MSA 15.1816(51) et seq; provides municipalities with specific powers which further historic preservation.(5)
The constitutionality of general municipal zoning ordinances was upheld by the United States Supreme Court in the landmark case of Village of Euclid v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926).(6)
It should be noted that as a special charter city incorporated by local act, the City of Mackinac Island does not possess the independent power of a home rule city to enact zoning ordinances pursuant to the Home Rule Cities Act, 1909 PA 279, Sec. 4-i as added by 1929 PA 126; MCLA 117.4i; MSA 5.2082.(7)
In 1895, Congress granted to the State of Michigan, for use as a state park, the national park on Mackinac Island and the military reservation and buildings therein located. OAG, No 4162, supra, fn 1, at p 224.(8)
1921 PA 207, Sec. 2, supra, was substantially amended by 1978 PA 638, which extensively amended seven (7) sections of the statute. Amendatory 1978 PA 638 amended 1921 PA 207, Sec. 2, supra, by deletion of certain language that now appears in 1921 PA 207, supra, Sec. 1(1). The requirement of 1921 PA 207, Sec. 2, supra, that regulations shall be uniform for each class of buildings within a district, has not been changed by amendatory 1978 PA 638.
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