Local wireless communication zoning further restricted
Local zoning regulation of wireless communication and fireworks are subject to less regulation by zoning ordinances. The list of things that restrict zoning jurisdiction continues to get longer.
Senate Bill 1064 (2012) was signed into law by Governor Snyder May 24, 2012. The bill amends the Michigan Zoning Enabling Act (MZEA) to require wireless communications equipment be a permitted use of property, not subject to a special use permit if equipment is collocated on a legal existing support structure or in an existing equipment compound.
If the wireless communications equipment increases the size of the tower or associated facilities over a certain amount, then zoning approval can be through a special-use permit. However there are limits on how long the approval process can take and how much the permit fee may cost. If a local unit of government wishes, it may allow all wireless communications equipment as a permitted use.
Earlier in 2012, the Michigan Fireworks Safety Act, M.C.L. 28.453 was adopted, which eliminates local authority to regulate sales of fireworks in a manner any different than any other retail enterprise. A local unit of government cannot regulate fireworks sale, display, storage, transportation or distribution which contravenes the Michigan Fireworks Safety Act.
In Michigan, the state legislature delegates authority for local government to adopt and enforce zoning ordinances. This is done through adoption of an enabling act, in this case the MZEA. If a local government chooses to have zoning, it must do so according to the terms, conditions and procedures specified in MZEA, other state statutes and court case law on zoning.
What the legislature delegates, the legislature can also take back. Over time, the list of restrictions on local zoning has grown longer. When I started as a professional planner (late 1970s), the list of restrictions could fit on one legal-sized sheet of paper. Today the list is 13 pages long.
Michigan State University (MSU) Extension keeps a list of zoning jurisdiction limitations up-to-date as one of the services for local governments and others. It includes details, such as footnotes to statute or court cases, where the restriction on local authority is found. That list, “Land Use Series: Restrictions on Zoning Authority” can be downloaded and is found on this webpage.
The list of restrictions on zoning authority can be divided into six categories and includes:
- General rules – must provide for any lawful land use somewhere, allow nonconforming uses to continue, avoiding takings, due process of law, and equal protection.
- Outright preemption from zoning regulation – hazardous waste facilities, solid waste landfills and incinerators, utility (power) lines, wind energy power transmission lines, pipelines regulated by PSC, railroads, state prisons, oil and gas wells, surface coal mining, water pollution, farm/farming issues covered in GAAMPS and Right To Farm Act, fertilizer, Mackinac Island Park, State Fairgrounds, trails designated “Michigan trailways”, snowmobile trails (Snowmobile Act), State Police radio communication facilities, armories, land for state military uses, nuclear power facilities, U.S. military, Native American (Indian) tribal government, public schools (under Michigan Superintendent of public instruction), certain colleges and universities, activates of the municipality that adopted the zoning ordinance, county buildings, underground storage tanks, and large quantity water withdrawal.
- Preemption, sort of – interior of mobile (manufactured) home parks, activities of the U.S. Government on land owned by the U.S. Government, nonferrous metallic mineral mining, certain specific aspects of extraction (mining) of natural resources, wireless communication, and fireworks sales etc. and novelties.
- If one is allowed, then these also must be allowed – if zoned residential, then must provide for cluster (open space); if dwellings are allowed, then must allow mobile homes, state-licensed residential facilities, craft or fine art home occupations, family day-care home, group day-care home; and if farms are allowed, then must allow biofuel production under a certain size.
- Can regulate, but not prohibit – signs, religious activities/land uses wherever other assembly-type activities, adult entertainment or sexually oriented businesses, satellite dishes or cellular telephone towers, television reception antennas, and shooting ranges (gun clubs).
- Can regulate, but not less strictly than state regulations – air pollution, airport zoning, high risk erosion areas, designated sand dunes, state natural rivers, wetlands, floodplains, and soil erosion.