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

MIKE COX, ATTORNEY GENERAL

TOWNSHIP ZONING ACT:

INITIATIVE AND REFERENDUM:

Open Space Preservation Ordinances

If referendum petitions are filed with a township clerk within 30 days after publication of an open space preservation ordinance adopted by a township board pursuant to section 16h of the Township Zoning Act, the ordinance does not take effect until the township clerk determines that the petitions are inadequate or until the registered electors of the township approve the open space preservation ordinance by majority vote at a referendum election.

If an open space preservation ordinance is rejected at a referendum election authorized under section 12 of the Township Zoning Act, the township board may, but is not required to, subsequently adopt an open space preservation ordinance, but that subsequent ordinance is also subject to the referendum petition and election provisions of section 12 of the Township Zoning Act.

Opinion No. 7143

October 17, 2003

Honorable Beverly S. Hammerstrom
State Senator
The Capitol
Lansing, MI 48913

You have asked two questions relating to the open space preservation provisions that were added to the Township Zoning Act by 2001 PA 177. Your first question asks whether an open space ordinance adopted by a township board under the open space preservation provisions of the Township Zoning Act takes effect between the time any referendum petitions are received by the township clerk and the time a referendum election on the open space ordinance is held.

The open space preservation provisions for township ordinances are contained in section 16h of the Township Zoning Act (Act), MCL 125.286h, and require that each qualified township1 include a provision in its zoning ordinance that provides owners of land zoned for residential development the option of building on a portion of the developable land area the same number of dwelling units that otherwise could have been built in the entire developable area under existing ordinances, laws, and rules, provided that a specified percentage of the land area will remain in a perpetually undeveloped state and certain other conditions are met.2

The legislative history of HB 4995, which became 2001 PA 177, demonstrates that when the bill was originally introduced, the open space preservation provisions contained in the bill were mandatory on all qualified townships. A substitute for HB 4995 was later passed that, among other things, made the open space preservation provisions subject to section 12 of the Act. HB 4995, House Substitute (H-4), October 16, 2001. Subsequently, a Senate substitute for HB 4995 was passed that maintained the requirement that the open space preservation provisions are subject to section 12 of the Act, and its provisions became Enrolled HB 4995. HB 4995, Senate Substitute (S-4), November 7, 2001.

Section 12 of the Act provides:

Within 7 days after publication of a zoning ordinance under section 11a, a registered elector residing in the portion of the township outside the limits of cities and villages may file with the township clerk a notice of intent to file a petition under this section. If a notice of intent is filed, then within 30 days following the publication of the zoning ordinance, a petition signed by a number of registered electors residing in the portion of the township outside the limits of cities and villages equal to not less than 15% of the total vote cast for all candidates for governor, at the last preceding general election at which a governor was elected, in the township may be filed with the township clerk requesting the submission of an ordinance or part of an ordinance to the electors residing in the portion of the township outside the limits of cities and villages for their approval. Upon the filing of a notice of intent, the ordinance or part of the ordinance adopted by the township board shall not take effect until 1 of the following occurs:

(a) The expiration of 30 days after publication of the ordinance, if a petition is not filed within that time.

(b) If a petition is filed within 30 days after publication of the ordinance, the township clerk determines that the petition is inadequate.

(c) If a petition is filed within 30 days after publication of the ordinance, the township clerk determines that the petition is adequate and the ordinance or part of the ordinance is approved by a majority of the registered electors residing in the portion of the township outside the limits of cities and villages voting thereon at the next regular election which provides reasonable time for proper notices and printing of ballots, or at any special election called for that purpose. The township board shall provide the manner of submitting an ordinance or part of an ordinance to the electors for their approval or rejection, and determining the result of the election. [MCL 125.282; emphasis added.]

Your question involves the situation where petitions have been filed with the township clerk by registered electors of the township seeking a referendum election on an open space preservation ordinance adopted by a township board under section 16h of the Act. Under this circumstance, a township's open space preservation ordinance may not, consistent with section 12 of the Act, take effect until either the township clerk determines that the petitions are inadequate (if the petitions are filed with the township clerk within 30 days after publication of the ordinance) or until the township's registered electors, by majority vote, approve the township’s open space preservation ordinance at the referendum election. Where the language of a statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).

It is my opinion, therefore, in answer to your first question, that if referendum petitions are filed with a township clerk within 30 days after publication of an open space preservation ordinance adopted by a township board pursuant to section 16h of the Township Zoning Act, the ordinance does not take effect until the township clerk determines that the petitions are inadequate or until the registered electors of the township approve the open space preservation ordinance by majority vote at a referendum election.

Your second question asks whether a township board is required to adopt a second open space preservation ordinance if an original open space preservation ordinance is rejected by a majority of the township's registered electors voting on the ordinance at a referendum election.

There is nothing in the Act that would require a township board to adopt a second open space preservation ordinance under section 16h of the Act if a previously adopted open space preservation ordinance is rejected by a majority of the township's registered electors in a referendum election authorized under section 12 of the Act. However, the Act gives a township board continuing authority to adopt, amend, or supplement zoning ordinances, subject to the referendum petition and election provisions of section 12 of the Act.

OAG, 1985-1986, No 6293, p 65 (May 10, 1985), considered the question of whether a charter township board of trustees may pass an ordinance after a referendum has been petitioned for, certified, and held and the electors of a township have rejected a virtually identical ordinance. That opinion concluded that "in the absence of restrictive legislation, a charter township board may pass an ordinance similar to the ordinance which was rejected by the electors in a previous referendum election," but also emphasized that "the similar ordinance is subject to referendum by the charter township electors." Id., at 66. The conclusions reached in OAG No 6293 also apply to general law townships. See OAG, 1979-1980, No 5541, p 344 (August 14, 1979), which concludes that, because general law and charter townships are both organized townships, the referendum provisions contained in section 12 of the Act are equally applicable to each.

It is my opinion, therefore, in answer to your second question, that if an open space preservation ordinance is rejected at a referendum election authorized under section 12 of the Township Zoning Act, the township board may, but is not required to, subsequently adopt an open space preservation ordinance, but that subsequent ordinance is also subject to the referendum petition and election provisions of section 12 of the Township Zoning Act.


MIKE COX
Attorney General

1A "qualified township" is defined in section 16h(5) of the Act, MCL 125.286h(5), to mean a township that has adopted a zoning ordinance, that has a population of at least 1,800, and that has undeveloped land that is zoned for residential development at the density described in section 16h(1)(a).

2The conditions that must be met before the open space preservation provisions of the Act apply are specified in subsections (a) through (d) of section 16h but are not relevant to the questions addressed in this opinion.