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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. 6437 May 6, 1987 ZONING: Computation of vote of legislative body of city necessary to pass rezoning amendment after protest petition Upon filing of a protest petition signed by the requisite number of affected owners, a rezoning ordinance must be passed, by favorable vote of six members of a seven member legislative body of a city where the legislative body has passed an ordinance, as authorized by law, requiring a favorable vote of 3/4 of the members of the legislative body to pass the rezoning ordinance. Honorable Doug Cruce State Senator The Capitol Lansing, Michigan 48909 You have requested my opinion relating to the vote requirement necessary for the legislative body of a city to rezone an area after the presentation of a protest petition to a proposed amendment to a zoning ordinance. Your question is: What is the number of votes necessary to pass a rezoning ordinance in the face of an objecting petition where the legislative body numbers seven and the city ordinance requires a 3/4 vote? MCL 125.584(5); MSA 5.2934(5), provides: "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." The City of Berkley, in Berkley Ordinance 33-149(8)(b), provides for a 3/4 vote for passage of an amendment to a zoning ordinance as provided in MCL 125.584(5); MSA 5.2934(5). The city's legislative body numbers seven members. There is no decision of a Michigan appellate court construing this statute. Guidance in resolving the question may be obtained from the decision in Bonney v Smith, 147 P2d 771, 773 (Okla, 1944), where a statute required a 3/4 vote to adopt an emergency clause in setting up a district sewer and the township board was composed of three members. The court stated: "Where, in any instance, a percentage vote of a municipal legislative body results in so many whole votes and a fraction, it is always necessary to count the fraction as a whole vote even though this results in a greater percentage of the whole body in such instance than would be the case if the legislative body is equally divisible by said percentage into whole numbers. The fraction cannot be lopped off or ignored." It is my opinion, therefore, that upon filing of a protest petition signed by the requisite number of affected owners, a rezoning ordinance must be passed by favorable vote of six members of a seven member legislative body of a city where the legislative body has passed an ordinance, as authorized by law, requiring a favorable vote of 3/4 of the members of the legislative body to pass the rezoning ordinance. Frank J. Kelley Attorney General
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