In disputes over zoning authority, follow the legislative intent test
Absent an overarching statute exempting state owned land and buildings from zoning regulations, Michigan courts follow a test to determine legislative intent. In short, if there is no sign of legislative intent, local zoning prevails.
Michigan local governments are delegated power from the state to regulate uses of land in order to protect public health, safety and welfare. Yet state government also exempts certain activities from zoning regulation. For instance, townships and counties are prohibited from regulating oil and gas wells under Section 205(2) of the Michigan Zoning Enabling Act, PA 110 of 2006, as amended. There are many other land uses and activities for which the state outright preempts or partially preempts zoning authority (see the Michigan State University Extension Land Use Series pamphlet Restrictions of Zoning Authority).
A frequent question from local government on this topic is whether state-owned land and buildings are exempt from zoning regulations. There are various Michigan statutes that exempt certain operations or buildings of the state from local zoning (e.g. state prisons); however, the legislature has never adopted an overarching statute that exempts all state-owned land, structures and buildings from zoning. Absent a specific reference in law that an aspect of state operations are exempt from zoning authority, that authority applies and the state-owned land, building or use is subject to zoning.
In reality, this is not always so clear and many administrators and employees of state departments do not believe this to be true. It should come as no surprise then that disputes over zoning authority between local governments and a state of Michigan department have landed in a courtroom. When this happens, Michigan courts follow a test called the legislative intent test. The legislative intent test is explained as follows:
- First, the court looks for language in statute that clearly reads the state has ‘exclusive jurisdiction’ over local zoning authority.
- If explicit language does not exist, then the court looks for language that expresses the clear legislative intent to grant exclusive jurisdiction to the state by reviewing the applicable enabling statutes of both the state and the local government.
- If legislative intent to exempt the state from zoning does not exist, then the local zoning regulations prevail.
In applying the legislative intent test, no consideration is given to the merits of the state entity or the local government. In other words, the strict application of the legislative intent test by Michigan courts does not consider the virtues of the state project at hand, nor does it consider the concerns of local government. It is the legislative intent, or the lack thereof, that is the principal factor under consideration by the court.
The supremacy of zoning authority over certain state land uses is supported by case law. For instance, in two different cases (Twp. of Burt v. Dept. of Natural Resources, 459 Mich 659, 593 NW2d 534 (1999) and Crystal Lake Property Rights Assoc v Benzie County, 280 Mich App 603, 760 N.W.2d 802 (2008)), Michigan Department of Natural Resources boat launches were held to not be exempt from local zoning. The benchmark case on the broader issue of state preemption of local regulation is People v. Llewellyn (City of East Detroit v. Llewellyn), 401 Mich 314, 322 n 4; 257 NW2d 902 (1977). While this case does not establish new law, it does contain a clear explanation of how courts analyze whether regulated subject matter demands exclusive state control.
If you have questions about local zoning authority and state preemption, try asking an MSU Extension land use educator. For more background on this subject, see the Fall 2001 issue of Public Corporation Law Quarterly of the State Bar of Michigan.