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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. 6202 February 1, 1984 CITIES, HOME RULE: Power of city with population of 1,000,000 or more persons to permit by local zoning ordinance the establishment of a state licensed residential facility in proximity to existing state licensed residential facility ZONING AND PLANNING: Location of licensed residential facility within a radius of 3,000 feet of an existing facility in city of population of 1,000,000 or more persons A city with a population of 1,000,000 or more persons is without authority to grant approval by local zoning ordinance for the establishment of a state licensed residential facility for six or less persons within a radius of 3,000 feet of an existing state licensed facility. Honorable Burton Leland State Representative State Capitol Lansing, Michigan You have requested my opinion whether 1921 PA 207, Sec. 3b(4), as added by 1976 PA 396, and as amended by 1977 PA 28; MCLA 125.583b; MSA 5.2933(2), permits a city with a population of 1,000,000 or more persons, i.e., Detroit, to grant approval for the establishment of a state licensed residential care facility for six or less residents within a radius of 3,000 feet of an existing state licensed residential facility. 1921 PA 207, Sec. 3b, supra, in pertinent part, provides: '(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 zoned 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 of similar density in the same zone. (4) At least 45 days before licensing a residential facility described in subsection (1), the state, licensing agency shall notify the council of the city or village or the designated agency of the city or village where the proposed facility is to be located to review the number of existing or proposed similar state licensed residential facilities whose property lines are within a 1,500 foot radius of the property lines of the location of the applicant. The council of a city or village or an agency of the city or village to which the authority is delegated shall, when a proposed facility is to be located within the city or village, give appropriate notification of the proposal to license the facility to those residents whose property lines are within a 1,500 foot radius of the property lines of the proposed facility. A state licensing agency shall not license a proposed residential facility when another state licensed residential facility exists within the 1,500 foot radius, unless permitted by local zoning ordinances, of the proposed location or when the issuance of the license would substantially contribute to an excessive concentration of state licensed residential facilities within the city or village. In a city with a population of 1,000,000 or more a state licensing agency shall not license a proposed residential facility when another state licensed residential facility exists within a 3,000 foot radius of the proposed location. This subsection shall not apply to state licensed residential facilities caring for 4 or less minors.' (Emphasis added) These statutory provisions contain two distinct 'spacing' requirements. The first requires that residential care facilities in cities or villages be separated by a distance measured by a radius of at least 1,500 feet 'unless permitted by local zoning ordinances.' The second provides an exception for cities of 1,000,000 or more persons and requires spacing of at least 3,000 feet in such cities, but does not contain a proviso for local zoning approval of closer spacing for cities with a population of 1,000,000 or more persons. The primary rule of statutory construction is to ascertain and give effect to legislative intent and, in that regard, the Legislature will normally be presumed to have intended the meaning expressed by clear and unambiguous language, unless a literal reading would produce results clearly inconsistent with the purpose of the act. Owendale-Gagetown School Dist. v State Bd of Educ, 413 Mich 1, 8; 317 NW2d 529 (1982). Inasmuch as the Legislature has clearly and unambiguously provided for a local zoning exception to the 1,500 foot spacing requirement, but has not so provided in the provision immediately following with respect to cities with a population of 1,000,000 or more persons, it is presumed to have intended such omission. Moreover, such literal reading of the statute is, in fact, supported by the legislative history of the amendatory Act in question. 1976 Substitute HB 4896, enacted as 1976 PA 396, contained neither the language concerning the granting of local zoning approval for spacing of less than 1,500 feet nor the sentence referring to cities with a population of 1,000,000 or more persons. Rather, both of these provisions were simultaneously considered by the Senate on the recommendation of the Senate Committee on State Affairs, on second reading, 3 SJ 2200-2201 (1976), and approved as consecutive amendments (7) and (8), 3 SJ 2460 (1976). It is my opinion, therefore, that 1921 PA 207, Sec. 3b(4); supra does not empower a city with a population of 1,000,000 or more persons, i.e., Detroit, to grant approval, by local zoning ordinance, for the establishment of an adult foster residential care facility for six or less persons within a radius of 3,000 feet of an existing state licensed residential facility for the reason that the Legislature has not so provided. Frank J. Kelley Attorney General
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