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
MICHIGAN ZONING ENABLING ACT: The requirement in section 601(3) of the Michigan Zoning Enabling Act, MCL
125.3601(3), that a member of the zoning or planning commission be appointed to
the zoning board of appeals does not require that a current member of the zoning
board be removed to create a vacancy that may then be filled to satisfy the
requirement. The city or village council may amend its zoning ordinance to
increase the number of members on the zoning board of appeals either temporarily
or permanently and fill the newly created position with the required zoning or
planning commission member. A member of a city or village zoning board of appeals who also serves as a
member of the local unit's planning or zoning commission must abstain from
voting on a matter being considered by the zoning board of appeals that he or
she voted on as a member of the zoning or planning commission where the facts
and circumstances associated with the particular decision under review make
abstention necessary to satisfy the due process requirement of impartial
decision making. A city or village council may appoint a successor to the zoning board of
appeals after the expiration of a member's term notwithstanding the passing of
the one-month deadline imposed by section 601(9) of the Michigan Zoning Enabling
Act, MCL 125.3601(9), but the council should complete the appointment process as
soon as practicable thereafter. Where a city or village council fails to timely
appoint a successor to the zoning board of appeals after the expiration of a
member's term under MCL 125.3601(9), that member may continue to serve beyond
the expiration of his or her term as a holdover member until a successor is
appointed and qualified. The requirement in section 601(9) of the Michigan Zoning Enabling Act, MCL
125.3601(9), for appointment of a successor on the zoning board of appeals
within one month after the term of the preceding member has expired has no
application to the filling of a mid-term vacancy by appointment to the zoning
board of appeals by the city or village. In order to comply with the 30-day deadline for appealing to the circuit
court from a decision of a zoning board of appeals set forth in section 606(3)
of the Michigan Zoning Enabling Act, MCL 125.3606(3), a party must file the
appeal within 30 days of the date on which the zoning board of appeals certifies
its decision in writing or the date on which it approves the minutes of the
meeting at which its decision was made, whichever is earlier. Appeals to the Court of Appeals from decisions by a circuit court on review
of a decision of the zoning board of appeals may only be taken by application
for leave to appeal to that court in accordance with MCR 7.203 and not as a
matter of right. The provisions as to the effective date of a zoning ordinance and for the
publication of notice of its adoption set forth in section 401(6) and (7) of the
Michigan Zoning Enabling Act, MCL 125.3401(6) and (7), will control over
different requirements for the effective date of a city ordinance or for the
publication of notice of its adoption set forth in a city charter. A municipality may comply with the requirements in section 103(2) of the
Michigan Zoning Enabling Act, MCL 125.3103(2), for giving notice to the
occupants of structures within 300 feet of a property subject to certain zoning
actions for which this type of notice is required, by either delivering a
written notice in person to an occupant of each unit in such a structure, or by
mailing a letter to one or more occupants of each unit in such a structure by
name if known or addressed to the "occupant" if the name of an occupant is not
known. Opinion No. 7201 March 21, 2007 Honorable Gilda Z. Jacobs
Honorable Aldo Vagnozzi You have asked eight questions concerning the new Michigan Zoning Enabling
Act (MZEA), MCL 125.3101 et seq, which was adopted by the Legislature in
2006 PA 110, effective July 1, 2006. This act repealed the prior City and
Village Zoning Act, the Township Zoning Act, and the County Zoning Act, and
merged into one act these laws enabling counties, cities, villages, and
townships to regulate land use and development. Your first question may be restated as follows: Does the requirement in section 601(3) of the MZEA that members of the
planning commission be appointed to the zoning board of appeals require a
current member of the zoning board of appeals to be removed in order to make
room for this newly mandated appointment of a member of the planning
commission on the zoning board of appeals? Section 601(3), MCL 125.3601(3), states: In appointing a zoning board of appeals, membership of that board shall
be composed of not fewer than 5 members if the local unit of government has
a population of 5,000 or more and not fewer than 3 members if the local unit
of government has a population of less than 5,000. The number of members of
the zoning board of appeals shall be specified in the zoning ordinance. One
of the regular members of the zoning board of appeals shall be a member of
the zoning commission or of the planning commission if the duties and
responsibilities of the zoning commission have been transferred to the
planning commission. This section sets a minimum number of members of the zoning board of appeals
to be appointed by the local unit of government, "not fewer than 5" or "not
fewer than 3," depending on the local unit's population. Section 601(3) gives
discretion to the city or village council to specify the number of members of
the zoning board of appeals "in the zoning ordinance." If there are no current
vacancies on the zoning board of appeals, a city or village council may comply
with this requirement by amending its ordinance establishing its zoning board of
appeals to enlarge the board's membership by one or more additional seats and by
filling one of these new seats with the requisite member of the local unit's
zoning or planning commission. In addition, if the city or village council would
prefer to keep the zoning board of appeals at its current size in the future,
the council could provide for a temporary expansion in the membership of the
zoning board of appeals to add a member of the planning or zoning commission
without removing any current members. It is my opinion, therefore, in answer to your first question, that the
requirement in section 601(3) of the Michigan Zoning Enabling Act, MCL
125.3601(3), that a member of the zoning or planning commission be appointed to
the zoning board of appeals does not require that a current member of the zoning
board be removed to create a vacancy that may then be filled to satisfy the
requirement. The city or village council may amend its zoning ordinance to
increase the number of members on the zoning board of appeals, on a temporary or
permanent basis, and fill the newly created position with the required zoning or
planning commission member. Your second question may be restated as follows: Is a member of a zoning board of appeals who is also a member of a
planning or zoning commission required to abstain from voting on a matter
being considered by the zoning board of appeals that he or she has already
voted on as a member of a planning or zoning commission? Your question recognizes that, in the case of adjudications by local bodies
whose members may hold other offices, a conflict of duties that violates due
process may arise. In OAG, 1991-1992, No 6742, p 203 (December 4, 1992), this
issue was addressed with respect to a similar requirement for counties that have
zoning ordinances. OAG No 6742 concluded that due process requires that a member
of a county zoning commission serving as the statutorily required member of a
county zoning board of appeals refrain from participating in the review of any
decision in which the member has previously participated as a member of the
county zoning commission. The opinion first noted that since membership was explicitly required by the
statute there was no question to be raised about the incompatibility of the
offices. The opinion then went on to explain that the right to an impartial
decision maker is a required part of due process that must be afforded in
administrative hearings, citing Crampton v Dep't of State, 395 Mich 347;
235 NW2d 352 (1975). See also Milk Marketing Bd v Johnson, 295 Mich 644;
295 NW 346 (1940). In Crampton, the Court surveyed a number of United
States Supreme Court opinions in which decision makers were disqualified without
a showing of actual bias where, based on the particular facts and circumstances
present, "'experience teaches that the probability of actual bias on the part of
the judge or decision maker is too high to be constitutionally tolerable.'"
Id., at 351. Among the situations identified as presenting that risk is
where the decision maker might have prejudged the case because of prior
participation as an initial decision maker. See Withrow v Larkin, 421 US
35, 58; 95 S Ct 1456; 43 L Ed 2d 712 (1975). None of the cases surveyed in
Crampton addressed the particular scenario presented in your question,
however, nor has research disclosed any subsequent court cases directly on
point. Like the county zoning boards of appeals under review in OAG No 6742, city
zoning boards of appeals, if authorized to do so by the city's zoning ordinance,
may hear appeals from land use decisions made by the zoning or planning
commission as to site plans, special land uses, and planned unit developments
under sections 501 to 503 of the MZEA, MCL 125.3501-125.3503. Accordingly, to
the extent review of an initial decision is mandated, a member of a city zoning
or planning commission serving as the statutorily required member of a city
zoning board of appeals may be called upon to participate in the review of a
decision in which the member has previously participated as a member of the city
zoning or planning commission. In the absence of details concerning a particular
decision or action and the level of participation on either end of the decision
making process, it is difficult to definitively assess whether a court would
find the risk of unfairness in participating in the review of the initial
decision constitutionally intolerable. The prudent course to follow under these
circumstances, however, is to refrain from all participation in the review of
the initial decision in order to assure the impartiality of the administrative
process. It is my opinion, therefore, in answer to your second question, that a member
of a city or village zoning board of appeals who also serves as a member of the
local unit's planning or zoning commission must abstain from voting on a matter
being considered by the zoning board of appeals that he or she voted on as a
member of the zoning or planning commission where the facts and circumstances
associated with the particular decision under review make abstention necessary
to satisfy the due process requirement of impartial decision making. Your third question may be restated as follows: What are the consequences of failing to appoint a successor to a seat on
the zoning board of appeals if the appointment is not made within one month
of that member's term expiring as required by section 601(9) of the MZEA? Section 601(9) of the MZEA, MCL 125.3601(9), provides: A successor shall be appointed not more than 1 month after the term of
the preceding member [of a zoning board of appeals] has expired. While section 601(9) of the MZEA, MCL 125.3601(9), provides
that appointment of a successor on the zoning board of appeals "shall" occur
within one month after the term of the preceding member has expired, the MZEA is
silent as to the consequences that result if such an appointment is not made
within the required time limit. The expectation, of course, is that an
appointment resulting from the expiration of a term will be made within the
one-month deadline, since it is presumed that public officials will discharge
their statutory duties by acting in accordance with the law. West Shore
Community College v Manistee County Bd of Comm'rs, 389 Mich 287, 302; 205
NW2d 441, 449 (1973). But, in the absence of language that expressly precludes performance of an
official duty after the specified time for performance has elapsed, the
fundamental rules of statutory construction generally favor construing the time
limit as directory rather than mandatory. People v Yarema, 208 Mich App
54, 57; 527 NW2d 27 (1994), citing 3 Sutherland, Statutory Construction
(5th ed), � 57.19, pp 47-48. No such preclusive language is present
in the MZEA. Thus, while every effort should be made to comply with the
statutory timetable, where circumstances make compliance impossible, an
appointment may still be made after expiration of the one-month period. Of
course, in the good faith discharge of public duties, the appointment should be
made in as close a period of time as is practicable. Moreover, it is perhaps worth observing as a practical matter that, in the
absence of any legislative direction to the contrary, if a successor has not
been appointed within the one-month deadline, the preceding member, if available
and willing to serve, could continue membership on the board as a holdover until
a successor is appointed and qualified. This conclusion is consistent with OAG,
1979-1980, No 5606, p 493 (December 13, 1979), which determined that, in the
absence of a statutory provision to the contrary, a public officer holding over
may continue to serve until a successor is appointed and qualified. Citing the
decision of an evenly divided Court in Attorney General ex rel McKenzie v
Warner, 299 Mich 172, 192; 300 NW 63 (1941), a Letter Opinion of the
Attorney General explained the policy underlying this rule: The general rule is based upon the ground of public convenience and
necessity to prevent an hiatus in the government pending the time of the
appointment and qualification of a successor. It has also been held that, in
the absence of any statutory provisions to the contrary, the public interest
requires that public offices should be filled at all times, without
interruption. [Letter Opinion of Attorney General Frank J. Kelley to Senator
John M. Engler, dated June 3, 1985; citations omitted.] Also supporting this conclusion is the statement in Messenger v Teagan,
106 Mich 654, 656; 64 NW 499 (1895) that "[w]hile there is some conflict in the
decisions, the better doctrine is that, where the law does not expressly or by
necessary implication prohibit, officers hold over until their successors are
duly elected and qualified." It is my opinion, therefore, in answer to your third question, that a city or
village council may appoint a successor to the zoning board of appeals after the
expiration of a a member's term notwithstanding the passing of the one-month
deadline imposed by section 601(9) of the Michigan Zoning Enabling Act, MCL
125.3601(9), but the council should complete the appointment process as soon as
practicable thereafter. Where a city or village council fails to timely
appoint a successor to the zoning board of appeals after the expiration of a
member's term under MCL 125.3601(9), that member may continue to serve beyond
the expiration of his or her term as a holdover member until a successor is
appointed and qualified. Your fourth question asks whether section 601(9) of the MZEA mandates the
same one-month deadline for a city council to fill a vacated seat on a zoning
board of appeals for the remainder of the member's term when a vacancy occurs
prior to the expiration of a term. Generally, section 601(9) of the MZEA, MCL 125.3601(9), specifies that terms
of membership on a zoning board of appeals are for three years. This section
does not specify a deadline for the filling of a mid-term vacancy, but it does
state that "[v]acancies for unexpired terms shall be filled for the remainder of
the term." If a statute's language is clear and unambiguous, it is assumed that
the Legislature intended its plain meaning, and the statute is enforced as
written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). Given
the language of the statute, there is no basis for implying a 30-day deadline
for the filling of mid-term vacancies when the language of section 601(9) of the
MZEA, MCL 125.3601(9) does not set forth a deadline for the filling of such
vacancies. It is my opinion, therefore, in answer to your fourth question, that the
requirement in section 601(9) of the Michigan Zoning Enabling Act, MCL
125.3601(9), for appointment of a successor on the zoning board of appeals
within one month after the term of the preceding member has expired has no
application to the filling of a mid-term vacancy by appointment to the zoning
board of appeals by a city or village council. Your fifth question asks whether the 30-day deadline for filing an appeal of
a decision of the zoning board of appeals to the circuit court runs from the
date the zoning board of appeals certifies its decision in writing or from the
date when the zoning board of appeals certifies the minutes of the meeting at
which its decision was made. Section 606(3) of the MZEA, MCL 125.3606(3), states the following regarding
appeals to the circuit court from decisions of a zoning board of appeals: An appeal under this section shall be filed within 30 days after the
zoning board of appeals certifies its decision in writing or approves the
minutes of its decision. The plain language of the statute provides that the 30-day time period for
filing an appeal begins to run when either of two events occurs: 1)
certification of the decision; or 2) approval of the minutes recording the
decision. Depending on local practice, a zoning board of appeals may or may not
certify its decision in writing, but it is required to review and approve the
minutes of its meetings. See section 9 of the Open Meetings Act, MCL 15.269.
Accordingly, the 30-day time period for filing an appeal begins to run from the
date on which the zoning board of appeals certifies its decision in writing or
approves the minutes of the meeting at which it made the decision, whichever
comes first. This construction of the statute is consistent with the general rules of
administrative law. Appeals of administrative decisions to the circuit court are
governed by MCR 7.101 and MCR 7.103. See MCR 7.104. With regard to the time
period for filing a claim of appeal, the Michigan Supreme Court has held that
the period begins to run on the date of actual entry of the order. General
Electric Credit Corp v Northcoast Marine, Inc, 402 Mich 297, 300; 262 NW2d
660 (1978), superseded on other grounds. MCR 2.602(A) provides that the
"date of signing of an order or judgment is the date of entry." Approval of the
minutes of a meeting at which a final administrative decision is made can serve
as the date of entry of the order for purposes of MCR 7.101 and MCR 2.602(A).
Davenport v City of Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App
400, 405; 534 NW2d 143 (1995). In the case of an appeal from a decision of the
zoning board of appeals, MCL 125.3606(3) provides that the 30-day appeal period
begins to run with the certification of the board's written decision or upon
approval of the minutes of its decision. Thus, either the certification of the
written decision or approval of the minutes constitutes the entry of an order
and begins the 30-day statutory appellate period. It is my opinion, therefore, in answer to your fifth question, that, in order
to comply with the 30-day deadline for appealing to the circuit court from a
decision of a zoning board of appeals set forth in section 606(3) of the
Michigan Zoning Enabling Act, MCL 125.3606(3), a party must file the appeal
within 30 days of the date on which the zoning board of appeals certifies its
decision in writing or the date on which it approves the minutes of the meeting
at which its decision was made, whichever is earlier. MCR 7.203(A)(1)(a) provides that the Court of Appeals has jurisdiction of an
appeal of right filed from a final order or judgment of the circuit court
"except" a judgment or order of the circuit court "on appeal from any other
court or tribunal." MCR 7.203(A)(2) also provides that the Court of Appeals has
jurisdiction of an appeal of right from a judgment or appeal of a court "from
which appeal of right to the Court of Appeals has been established by law or
court rule." Section 606(3) of the MZEA, MCL 125.3606(3), states that "[a]n appeal may be
had from the decision of any circuit court to the court of appeals." No
provision in the MZEA, including MCL 125.3606(3), specifies that appeals of the
zoning decisions of the circuit court shall be "of right" to the Court of
Appeals. Research discloses no statute or court rule providing that appeals of
the zoning decisions of the circuit court sitting on review of the decisions of
zoning boards of appeal shall be by right to the Court of Appeals. In addition,
"unless an appeal of right has been categorically established by law or court
rule, appeal is by leave." Watt v Ann Arbor Bd of Education, 234 Mich App
701, 705; 600 NW2d 95 (1999). It is my opinion, therefore, in answer to your sixth question, that appeals
to the Court of Appeals from decisions by a circuit court on review of a
decision of the zoning board of appeals may only be taken by application for
leave to appeal to that court in accordance with MCR 7.203 and not as a matter
of right. Your seventh question asks whether the provisions regarding the effective
date of a zoning ordinance and the requirement for publication of a notice of
its adoption set forth in section 401(6) and (7) of the MZEA will control even
if a city charter imposes other requirements for effective dates and the
publication of notice of adoption of ordinances. Regarding any date, deadline, or requirement set forth in the MZEA, including
those about which you inquire and related provisions for referendum petitions
and elections in section 402, MCL 125.3402, the provisions of the MZEA control
over any conflicting requirements of a city charter. This result is mandated by
section 36 of the Home Rule City Act, MCL 117.36, which states that "[n]o
provision of any city charter shall conflict with or contravene the provisions
of any general law of the state." Const 1963, art 7, � 22 provides with regard
to the powers of cities and villages: "Each such city and village shall have
power to adopt resolutions and ordinances relating to its municipal concerns,
property and government, subject to the constitution and law." It should be
noted, however, that section 401(6), MCL 125.3401(6), expressly authorizes a
city council to postpone the effective date of a zoning ordinance from the
seventh day after publication of notice of its adoption to such later date as
may be specified by the city council. In the exercise of its judgment, a city
council may wish to select the effective date of any zoning ordinance or zoning
amendment to be consistent, as much as it determines to be feasible, with its
charter requirements for city ordinances that would otherwise be applicable in
that city. It is my opinion, therefore, in answer to your seventh question, that the
provisions as to the effective date of a zoning ordinance and for the
publication of notice of its adoption set forth in section 401(6) and (7) of the
Michigan Zoning Enabling Act, MCL 125.3401(6) and (7), will control over
conflicting requirements for the effective date of a city ordinance or for the
publication of notice of its adoption set forth in a city charter. Your eighth question asks what steps a municipality should take to comply
with the requirement in section 103(2) of the MZEA of providing notice of zoning
applications to the occupants of all structures located within 300 feet of a
property that is the subject of certain zoning proceedings. Section 103(2) of the MZEA, MCL 125.3103(2), provides: Notice shall also be sent by mail or personal delivery to the owners of
property for which approval is being considered. Notice shall also be sent
to all persons to whom real property is assessed within 300 feet of the
property and to the occupants of all structures within 300 feet of
the property regardless of whether the property or occupant is located in
the zoning jurisdiction. [Emphasis added.] Although it may be prudent for a municipality to consult with its attorney
regarding the particular details that may apply in a given situation, a
municipality may comply with the notice requirements of section 103(2) by
delivery of a written notice in person or by the sending of written notice by
mail. As indicated in your letter, section 103(3) permits letters to be
addressed to "occupant" if the name of an occupant of a structure is not known.
MCL 125.3103(3) (stating "[i]f the name of the occupant is not known, the term
'occupant' may be used in making notification under this subsection"). It is my opinion, therefore, in answer to your final question, that a
municipality may comply with the requirements in section 103(2) of the Michigan
Zoning Enabling Act, MCL 125.3103(2), for giving notice to the occupants of
structures within 300 feet of a property subject to certain zoning actions for
which this type of notice is required or by either delivering a written notice
in person to an occupant of each unit in such a structure, or by mailing a
letter to one or more occupants of each unit in such a structure by name if
known or addressed to the "occupant" if the name of an occupant is not known. MIKE COX Attorney General
ZONING:
Compliance with Michigan Zoning
Enabling Act
State Senator
State Representative
The Capitol
The Capitol
Lansing, MI
Lansing, MI
Your sixth question asks whether appeals to the Court of Appeals of decisions by
a circuit court on review of a decision of a zoning board of appeals are now by
right rather than by leave as your letter indicates was the case under past
practice. An appeal by right is one in which the appellant has a right to be
heard by the reviewing court, whereas an appeal by leave is one in which the
reviewing court has the discretion to deny the appellant's request to be heard.
2
As one example, the municipality could amend its ordinance to provide that
membership is increased by one until such time as a vacancy occurs due to death
or resignation.