Separation of powers improves decision-making

Administrative decisions made by the right government body can improve approval time and reduce risk.

The Michigan Zoning Enabling Act (MZEA) gives latitude to local governments in deciding which board or person approves local land use decisions. Land use decisions fall into three main areas: legislative, administrative and quasi-judicial. Legislative decisions are creating or amending the laws and ordinances that govern the community. Quasi-judicial are the appeals of decisions and the granting of variances or relief from the ordinances. Administrative decisions are the ministerial ones that involve the application of the ordinance to a real-world situation and make up the day to day operations of most planning and zoning departments. This discussion will focus on the administrative decisions where the most discretion on who makes the decisions resides.

The most common decisions that are administrative in nature are zoning permits, site plan review and special land use permits. Planned unit developments (sometimes done as a legislative action) and subdivision review can also be considered administrative functions of the ordinance. All of these decisions are based on standards, discretionary and non-discretionary, contained within the ordinance. The vast majority of standards are non-discretionary and do not require the application of judgement - they are numerical standards that are either met or not. Discretionary standards require the use of judgment to determine if the standard is being met. This is why a board instead of an individual makes these types of decisions. After review, the basic rule is if it meets the standards in the ordinance, the request shall be approved. This requires a detailed evaluation of the proposal and a determination as to whether it meets all the standards contained within the ordinance. The intent behind this is to remove personal bias and remove political influence and provide a level playing field for all applicants.

The government bodies that can make these decisions are the board of elected officials (city council, township board of trustees), the planning commission, or the zoning administrator (professional staff). The legislative body assigns these tasks to the various bodies by ordinance.

When local governments make decisions, there are different rules for how those decisions are made and different standards for how each of the decisions can be reviewed or appealed. Legislative decisions are given quite a bit of leeway under the concept of legislative intent and are only made by elected officials. These decisions require very little in records of how and why the decision was made. The minutes must contain the motion and the result of the vote. Administrative decisions have a very different standard of record keeping and appeal. There are different minutes requirements and the decision standards are very different. If a decision is challenged, whether or not the ordinance standards were followed is what the court focuses on. A well-supported decision provides the background needed to build a solid legal foundation for the decision. Therefore, there should be detailed minutes. For each case, the minutes should reflect at least four things: findings of fact; recitation of reasons for the decision; the decision (approve, deny, approve with conditions); and any conditions on the decision. These four items do not need to be all in one motion, but all four do need to be in the minutes as a single motion, more than one motion or discussion leading up to a motion(s), or other combination. These are two very different types of decisions and require very different types of record-keeping as well as skills in evaluating the proposals.

Now when a community requires the planning commission to review a site plan or special land use and make a recommendation to the elected body so the elected body can make an administrative decision it is basically making the applicant go through the same ordinance review twice. By doing this, the elected officials are substituting their judgement for those of the planning commission regarding discretionary standards. There is also the cost in time to the applicant to go through a second review. In addition, there are risk management concerns if the decisions are not recorded properly and if the elected officials fail to follow the ordinance standards when making the ministerial decision.

According to Michigan State University Extension, the best practice for community review of administrative decisions is to keep it as simple and quick as possible. If a site plan is submitted for a proposed project with no discretionary standards, the decision can be made by the zoning administrator much like a zoning permit. If the proposed project review has discretionary standards, the decision should be made by the planning commission. By following this framework, it reduces case load on boards and increases the speed in which decision can be made without additional reviews. It also allows for reduced risk because boards operate under consistent decision procedures.

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