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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

CITIES:

MUNICIPALITIES:

REAL ESTATE:

VILLAGES:

ZONING AND PLANNING:

Determining the sufficiency of a rezoning protest petition filed under City and Village Zoning Act

A rezoning protest petition filed under the City and Village Zoning Act must be signed by the owners of at least 20% of the privately owned lands located within 100 feet of the boundaries of the parcel proposed to be rezoned. The 100-foot measurement from the boundary of the parcel proposed to be rezoned does not change simply because publicly owned lands lie within 100 feet of that parcel.


Opinion No. 7006

January 29, 1999


Honorable Nancy Cassis
State Representative
The Capitol
Lansing, MI 48913


You have asked how one is to determine the sufficiency of a rezoning protest petition filed under the City and Village Zoning Act where the parcel proposed to be rezoned abuts publicly owned lands.

The City and Village Zoning Act (Act), 1921 PA 207, MCL 125.581 et seq; MSA 5.2931 et seq, grants cities and villages the authority to engage in zoning regulation. Section 4 of the Act, which governs petitions filed in protest of rezoning requests, provides in pertinent part as follows:

(5) 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:

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(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.

(6) For purposes of subsection (5), publicly owned land shall be excluded in calculating the 20% land area requirement.

(Emphasis added.)

Information supplied with your request indicates that an unidentified party requested rezoning of a parcel of land. Then, some abutting landowners filed a protest petition contesting the rezoning request. Both publicly and privately owned lands lie within 100 feet of the parcel proposed to be rezoned.

You seek guidance in determining the sufficiency of the protest petition. In order to determine the sufficiency of the petition, subsection 4(5)(b) of the Act requires a 2-step analysis:

Step #1: Identify all lands located within 100 feet, measured outward, from the boundaries of the parcel proposed to be rezoned; and

Step #2: Exclude from the land area identified by step #1 all publicly owned lands.

The privately owned lands remaining after completing this 2-step analysis are the only lands to be used in determining the legal sufficiency of the protest petition.

The protest petition is sufficient if, and only if, it is signed by the owners of at least 20% of the privately owned lands identified by this 2-step analysis.

According to materials submitted with your letter, an unidentified party has suggested that where public lands adjoin the parcel to be rezoned, the 100-foot distance should be measured from the outer boundary of the public land instead of from the boundary of the parcel to be rezoned. This interpretation would effectively treat the adjoining public land as part of the rezoned parcel for purposes of determining the 100-foot area, and would significantly expand the land area to be used in applying section 4(5). This interpretation would violate the clear language of the Act. According to the Michigan Supreme Court, the primary principle of statutory construction is to determine the intent of the Legislature through reasonable interpretation, considering the purpose of the statute and the object sought to be accomplished. Gross v General Motors Co, 448 Mich 147, 158-159; 528 NW2d 707 (1995). If the statute is plain, certain and unambiguous, the statutory language controls, and no interpretation is necessary. Lee v Michigan Employment Sec Comm, 346 Mich 171; 78 NW2d 309 (1956). Here, section 4 of the Act is clear. Section 4(5)(b) explicitly states that the 100-foot area should be measured outward from "the boundary of the land included in the proposed change." This precise language precludes any suggestion that the measurement can or should be moved outward in situations where the parcel to be rezoned happens to abut publicly owned lands.

It is my opinion, therefore, that a rezoning protest petition filed under the City and Village Zoning Act must be signed by the owners of at least 20% of the privately owned lands located within 100 feet of the boundaries of the parcel proposed to be rezoned. The 100-foot measurement from the boundary of the parcel proposed to be rezoned does not change simply because publicly owned lands lie within 100 feet of that parcel.


JENNIFER M. GRANHOLM
Attorney General