“Due Process” is often a source of lost court cases in local government
In planning and zoning due process is simple to do, but maybe because it is so simple it is often overlooked. Yet many times it is one of the most important things to get right.
When regulating people’s property, one of the major concerns in the United States is that the regulation does not become too much – so that it does not infringe on a person’s private property rights.
There are many ways government regulation may tread on someone’s property rights. Some of those are listed here:
- The regulation is so much, that it results in “taking” one’s property without just compensation – takings.
- Failing to follow due process of law – due process.
- The substance or content of the regulation exceeds what is appropriate subject matter for government to be regulating – substantive due process.
- Failure to respect and follow the division of authority between the different parts of government – separation of powers.
This article will focus on due process. The state of Michigan has deligated certain powers to local government. For example, the authority to adopt a zoning ordinance is delegated to township, city, village, and county government through the Michigan Zoning Enabling Act. That is the state statute that enables local government to adopt zoning. But with that authority comes certain procedures and steps which are designed to safeguard people’s constitutional rights and to avoid abuse of power by government.
So while local government has authority to adopt zoning, it must do so in the way and manner prescribed by the state. There are no shortcuts, there are no exceptions, no dispensation for small or rural or fiscally poor local governments, and there are not any other ways to do so. Even with this warning I hear of many local governments that got into trouble because they did not follow the step-by-step procedure required by state statute. Some examples of this are a village that decided to just skip the part about having a planning commission, a township that decided to have alternate members of its planning commission, a city that did not send out proper notices for a hearing, or a township supervisor who decided to do the zoning administrator’s job for the zoning administrator. In each of these cases, the community ran afoul the law, their own zoning ordinance, or their decision was invalidated by a court of law.
In short, if your goal is to sabotage your local planning and zoning program, one of the easiest ways to do it – in fact handing your opposition on a silver platter all the ammunition they need to win in a legal dispute—is to not follow due process requirements of statute and courts.
And what is really a shame is that due process requirements are not complex or difficult – they can be spelled out in linear step-by-step procedure that is easy to follow and do. In fact, Michigan State University Extension has prepared such checklists for many of the common tasks for operation of a local government planning and zoning program.
Some of those checklists, listed here, are found at Schindler’s Land Use Page (Then click on “Pamphlets”). Each checklist is set up in three columns. The first, left, column denotes the order in which the task is done, the second, middle, column contains details about the task, and the third, right, column indicates what should be kept on file to be able to show that the task has been done.
- Land Use Series Check List #1H: Five Year Plan Review (December 23, 2010).
- Land Use Series Check List #1I: Adoption of a Plan Amendment (December 23, 2010).
- Land Use Series Check List #1J: Adopting and Updating a Capital Improvement Program (May 1, 2008).
- Land Use Series Check List #1K: Review Infrastructure/Capital Expenditures (May 1, 2008).
- Land Use Series Check List #4 For Adoption of a Zoning Ordinance Amendment (including some PUDs) in Michigan (May 1, 2008).
- Land Use Series Check List #5 For Processing a Zoning Special Use Permit (including some PUDs) in Michigan (May 1, 2008).
- Land Use Series Check List #6 For Processing a Zoning Appeal and Variance in Michigan (May 1, 2008).
There are many more checklists at this same web site. Topics include creating a local planning commission, or creation of a joint municipal planning commission, master plan content, plan adoption, adoption of land division/subdivision ordinance(s), and so on.