STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5987

September 30, 1981

VILLAGES:

Required vote for action by village board of appeals on zoning matters

A majority of the members of the village zoning board of appeals may act on zoning matters, including revising or affirming administrative zoning determination and granting variances.

Honorable Richard J. Allen

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion concerning the power of village zoning boards of appeals to grant variances and other relief under 1921 PA 207, as amended; MCLA 125.581 et seq; MSA 5.2931 et seq, which generally authorizes zoning by cities and villages. Your letter calls attention to the amendments in 1979 PA 180 to 1921 PA 207, supra, Sec. 5, which generally describes the composition and operation of boards of appeals for cities and villages which are engaged in zoning regulation.

You note that specific references have been made to the number of members of a board of appeals necessary to act in cities having a population under 1,000,000 in 1921 PA 207, Sec. 5(1), supra:

1921 PA 207, Sec. 5(1), supra, also provides somewhat different rules for actions by a board of appeals in a city of 1,000,000 or more:

Prior to its amendment by 1979 PA 180, 1921 PA 207, Sec. 5, supra, expressly required that a concurring vote of 2/3 of the members of the board of appeals of a city or a village be required for a lawful action of the board thereunder.

The differentiation in treatment of zoning boards of appeals in cities, based on population, was added to 1921 PA 207, Sec. 5(1), supra, by 1979 PA 180. A review of the legislative history of 1979 PA 180 indicates that as originally introduced in House Bill 4654, the requirement of a 2/3 majority of the members for action by both city and village zoning boards of appeals was to be reduced to a simple majority except for the granting of variances in an ordinance dealing with land use which would still require a 2/3 majority. During consideration by the House, the bill was amended to have the proposed change apply to cities having a population of less than 1,000,000 and separate language was added, as quoted above, which retained the 2/3 requirement of the prior law for zoning boards of appeals in cities having a population of 1,000,000 or more. 1979 House Journal, pp 1702-1703 (July 2, 1979). Thus, while 1921 PA 207, Sec. 5(1), supra, was amended by 1979 PA 180 to specify the favorable vote of the required number of members for action by city zoning boards of appeals in cities of different populations, that amendment also deleted any reference to the required number of members concurring in action by village zoning boards of appeals.

Your specific question is what requirements pertain to action by village boards of appeals since the provisions quoted above refer only to cities.

The powers of village boards of appeals are stated in 1921 PA 207, Sec. 5(4), supra, as follows:

The foregoing provision refers to both cities and villages. As noted, requirements for the number of members needed for action by zoning boards of appeals in cities are set forth in 1921 PA 207, Sec. 5(1), supra, with certain differences for cities under 1,000,000, as compared to cities of 1,000,000 or more.

As to the number of members concurring necessary in an action of a village zoning board of appeals, 1921 PA 207, Sec. 5, supra, is now silent. The general rule of interpretation which is applicable to this situation is stated in RS 1846, ch 1, Secs. 3 and 3c, as amended; MCLA 8.3 and 8.3c; MSA 2.212 and 2.212(3), which provide:

It is my opinion, therefore, that a majority of the members of a village zoning board of appeals concurring may take those actions concerning zoning matters which are listed in 1921 PA 207, Sec. 5(4), supra, including revising or affirming administrative zoning determinations and granting variances.

Frank J. Kelley