Legislative body involvement in zoning administrative decisions can raise important questions
Michigan zoning is set up to mimic the three branches of federal government with separation of powers. But it is not done perfectly, and requires some careful consideration when thinking about how things are done in your community.
In Michigan, zoning administrative decisions can be assigned to three different bodies. The assignment is in the local zoning ordinance and is done the same way each time within that local community. But just because the Michigan Zoning Enabling Act (MZEA) (MCL 125.3101 et seq.) allows the option, does not mean it is always the best way to do it.
First, some background. The operation of a zoning ordinance, in Michigan, is roughly set up the same way we organize our state or federal government: three branches of government, none of which have ultimate authority. Decision-making is divided into legislative, executive/administrative and quasi-judicial so there are checks and balances in place.
This article focuses on the executive/administrative function: that is the issuing or denying zoning or land use permits, special use permits, planned unit developments (PUD) and site plan reviews. With special use permit, PUD, and site plans the MZEA provides for these decision to be made by one of the following. In each case, the local zoning ordinance has to specify which one is the body or official responsible for the review and approval (MCL 125.3501(1), 125.3502(1), and 125.3503(2)).
- Planning Commission (usually)
- Zoning Administrator (sometimes: for minor special uses, PUDs handled administratively, or site plans)
- Legislative Body (more rarely)
It is the third option that is subject to debate and subject to questions as to if that option is a good idea or not. This article will attempt to review the debate on this subject. Discussion about the first two options, planning commission versus zoning administrator is discussed in Who should decide if a zoning permit is issued?
First is the idea that operation of a zoning program, like the federal and state government, is divided between the three branches of government.
- Quasi-Judicial: The zoning board of appeals handles this part. It includes decisions concerning interpretation of the zoning ordinance, hearing appeals of decisions made by the zoning administrator and certain decisions made by the planning commission, requests for variances and sometimes rulings on nonconforming uses.
- Administrative: The zoning administrator or planning commission handles this part. It includes decisions concerning issuing zoning or land use permits and zoning enforcement. It can also include decisions about special use permit, PUD handled administratively and site plan reviews.
- Legislative: The legislative body (city council, village council, township board of trustees and county board of commissioners) handles this part. It includes decisions about amending the zoning ordinance (including PUD handled as a zoning amendment): any changes to the zoning ordinance text or map. But it might also include making the final decision on special use permit, PUD handled administratively, and site plan administrative functions.
The catch is if the legislative body is making the final decision on special use permit, PUD handled administratively and site plan administrative functions, that muddies up the water on separation of legislative from administrative functions. Some may be bothered by this apparent blurring of the lines in a system of separation of powers, though others are not.
It is also an issue if an administrative decision is appealed (always possible on a decision concerning a site plan, and only possible if specifically provided for in the zoning ordinance for special uses and PUDs (MCL 125.3603(1)). Then there is a situation where the appeals board – whose members are appointed by the legislative body – are being asked to review and decide the propriety of a final decision made by the legislative body. Also, the legislative body of a city or village might be acting as the zoning board of appeals (MCL 125.3601(2)) and being asked to review its own decision. With these scenarios, one could question how fair or “neutral” the board of appeals would be.
Also, the legislative body is only responsible for a final decision. Many local governments still require the planning commission to conduct a public hearing with notices. Then the planning commission makes a recommendation to the legislative body, which takes final action. That process just adds an additional step, usually delaying a decision for a landowner for up to another month depending on how regular monthly meetings line up. One solution to the additional red tape would be for the legislative body to conduct the public hearing with notices and then make the decision – cutting the planning commission out of the process. Some argue creating a longer review and approval process is not good. Others argue the additional scrutiny is necessary.
Many times, special use permits and PUDs (handled administratively) are major decisions that have significant impact on a neighborhood or community. So, the argument is put forth that the legislative body – elected officials – are truly the best to have the final say, so that they can represent the voters in a community. The other side is that zoning decisions are required by law to be based on written standards in the zoning ordinance (MCL 125.3501(4), 125.3502(1)(b), and 125.3503(4)(b)) not popular opinion. This is why it is considered an administrative decision. One can debate the relative effectiveness of the legislative body versus the planning commission or zoning administrator making such decisions based on standards in the ordinance.
The job of taking minutes, and the detail needed on the minutes of an administrative body compared to a legislative body is very different. Minutes for legislative bodies often only contain the text of motions, resolutions and so on with the votes, attendance and similar. Because it is a legislative body, the detail and reasoning behind its actions are not as important. But when it is an administrative decision, there needs to be more documentation. Content of discussion, the hearing record, findings of fact, reasons for the decision, the decision and conditions if any, all need to be reflected in the minutes (See Land Use Series “How to take minutes for Administrative decisions”). This is true for any administrative decision (Article VI, §28, Michigan 1963 Constitution), regardless what public body is making the decision.
More often than not, legislative bodies fail to switch gears to put on their “administrative hat” with much more detailed minutes and record-keeping when they are making administrative decisions. On the other hand, it should be routine practice for a planning commission and zoning board of appeals. How effective the legislative body is at making this transition will support, or not, if the legislative body should make the final decision on special use permit, PUD handled administratively, and site plan administrative functions.
Finally, special use permits, PUDs handled administratively and site plan administrative functions are technical and sometimes complex reviews. Trained individuals should do the review. It is more common for members of the planning commission (and zoning board of appeals) to attend planning and zoning training; that is not the case for elected officials on a legislative body. If the legislative body is going to be assigned the task of making decisions concerning special use, PUDs and site plans, the members should receive the same planning and zoning training as we hope the planning commission members are already receiving. See Land Use Series Training, continuing education is best strategy for planning and zoning risk management, The importance of discussing best practices for continuing education in planning and zoning and Training, continuing education is best strategy for planning and zoning risk management.
If the legislative body already has these decision-making powers that is when it may be hardest to change how it is done. One may perceive a loss of turf, or power on the part of legislative body members. The same might be said for members of a planning commission if the proposal is to move the final decisions on administrative matters from the planning commission to the legislative body. Various training materials developed by Michigan State University Extension, such as Michigan Citizen Planner, suggest administrative decisions should be made by traditional administrative bodies as a “best practice” and not by legislative bodies. But that may not always be best for a particular local government. Educators from MSU Extension can assist a community think through the pros and cons on this issue to develop what would be the best answer for a particular local government.