STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6919

October 10, 1996

HISTORICAL PRESERVATION:

Placing property in a local historic district

Under the Local Historic Districts Act, 1970 PA 169, a local unit of government may not enact an ordinance that restricts that unit from placing property in a local historic district without the consent of the property owner.

Honorable Susan Grimes Munsell

State Representative

The Capitol

Lansing, MI 48913

You have asked if under the Local Historic Districts Act, 1970 PA 169, MCL 399.201 et seq; MSA 5.3407(1) et seq (the Act), a local unit of government may enact an ordinance that restricts that unit from rezoning property to a local historic district without the consent of the property owner.

The title of the Act establishes its scope:

See, Vernor v Secretary of State, 179 Mich 157, 163; 146 NW 338 (1914).

The opinion request is framed in terms of whether a local unit of government may enact an ordinance that restricts that unit from rezoning property to a local historic district without the consent of the property owner. However, neither the title to the Act nor any of its provisions relate to a local unit of government's authority to enact zoning ordinances. Rather, the declared purpose of the Act in section 2 is historic preservation.

The term "[h]istoric preservation," as defined in section 1a(j) of the Act, means "the identification, evaluation, establishment, and protection of resources significant in history, architecture, archaeology, engineering, or culture."

In section 1a(k) of the Act the Legislature has defined "[h]istoric resource" to mean "a publicly or privately owned building, structure, site, object, feature, or open space that is significant in the history, architecture, archaeology, engineering, or culture of this state or a community within this state, or of the United States."

Section 3(1) of the Act authorizes legislative bodies of local units of government to establish, by ordinance, historic districts within their respective boundaries. Under section 4 of the Act, legislative bodies of local units of government may enact ordinances establishing historic district commissions to administer historic districts.

Under section 3(1) of the Act, property is placed in an historic district when, by ordinance, the legislative body of a local unit of government enacts an ordinance establishing the boundaries of that historic district. This is separate from the zoning process in that same local unit of government. Under the Act, property placed in an historic district is not subject to use restrictions because it is in an historic district. Rather, the property is subject to restrictions on changing its exterior appearance under section 5 of the Act. See also, Letter Opinion of the Attorney General (Mr. Max Altekruse, Secretary to Franklin Historic District Commission, March 6, 1975.)

In section 5 of the Act the Legislature has authorized a local historic district commission to review and act upon an application for a permit for any work affecting the exterior appearance of an historic resource within the established local historic district. Under section 9(1) of the Act, the commission acts by filing a certificate of appropriateness, notice to proceed, or denial of a work permit.

The Act contains procedural safeguards to protect the rights of an aggrieved owner of property located in an established historic district whose application for a work permit has been denied by the local historic district commission. These decisions of local historic district commissions are subject to administrative and judicial review under sections 5(2) and 11 of the Act.

A review of the Act does not reveal a legislative intent to address zoning. The Act authorizes the preservation of historic resources within established local historic districts and contains procedures under which local historic district commissions administer established historic districts. The judicial review provisions of the Act protect the rights of owners of historical resources located within established historic districts. There is no language in the Act that authorizes a local unit of government to pass an ordinance that restricts that unit from placing property in a local historic district without the property owner's consent.

It is my opinion, therefore, that under the Local Historic Districts Act, 1970 PA 169, a local unit of government may not enact an ordinance that restricts that unit from placing property in a local historic district without the consent of the property owner.

Frank J. Kelley

Attorney General