When to call an attorney for planning and zoning issues
Land use decision making is not always a do it yourself proposition for local officials; there are times when you really should hire a lawyer.
No one is eager to call a doctor or an attorney. It often means something is wrong and money will be spent. But like the adage that sometimes a cough is not just a cold, local planning and zoning officials must be able to recognize the signs that legal help is needed.
Not every rezoning or other process requires your attorney, and legal counsel is no substitute for having adequately trained planning commission and zoning board of appeals members. (See MSU Extension news article on continuing education). On the other hand, planning and zoning officials should not be overly hesitant to involve an attorney when they do not feel confident in their understanding of the law at issue. As with medical care, waiting to seek advice can cost much more in the long run than early intervention
The most obvious time to call your municipal attorney without delay is when you receive notice of a lawsuit or any formal dispute resolution process, such as arbitration or mediation. The clock begins ticking on the deadline to respond or take other action in defense of a lawsuit as soon as a summons and complaint is served. To prevent potential missteps, you should also let your attorney know when someone is just threatening to sue or you suspect that someone is going through the process of “exhausting their administrative remedies” as generally required before seeking relief in court. This typically occurs when a variance is pursued after a permit or other request is denied.
Another time to contact your attorney is before you initiate legal action to enforce zoning or another ordinance. The zoning administrator or enforcement officer should first attempt to resolve ordinance violations by communicating with the property owner or occupant to achieve voluntary compliance. Involving your attorney should come at the point when higher and costlier levels of enforcement become necessary. Legal counsel will help you understand and then pursue the remedies available in each circumstance. Most ordinances provide for issuance of a civil infraction, which is similar to a traffic ticket, or criminal prosecution as a misdemeanor offense. However, a civil lawsuit filed in circuit court is more often the approach to abate a nuisance and seek an injunction preventing further violations.
Other circumstances when it is good practice to contact your attorney to draft, review, or otherwise assist with a document or process include:
- When considering any proposed ordinance or amendment to an ordinance (before it’s adopted).
- When deliberating complex or controversial rezonings, special use permits, site plan reviews, and planned unit developments.
- When evaluating any conditional rezoning.
- When reviewing projects involving complicated issues such as the Right to Farm Act, urban agriculture, wireless communications, wind energy, and medical marihuana.
- When discussing total exclusion of a particular land use.
- When justifying an impact fee, exaction, or dedication for development costs (see Land Use Series “Property Taking, Types and Analysis”).
- When encountering questions or resident complaints about complying with the Open Meetings Act.
- When facing an extreme position such as, “All zoning is an unconstitutional taking of my property rights,” or “I’m not subject to zoning because my land is patented land.”
- When dealing with inappropriate involvement or excessive pressure by a local official directed to the zoning administrator other appointed official (see Land Use Series “Elected Officials: Dealing the Constituent Complaints on Planning and Zoning Issues”).
- When realizing that any behavior by a local official has become foolish, reckless, or vindictive.
You need not automatically contact an attorney nor be alarmed when a resident or other applicant is represented by an attorney. A local government will most often benefit – particularly when someone is being difficult or pushing the envelope – by the valuable part that the applicant’s attorney can play as an effective communicator to their client and a collaborator in the process.
Hiring an attorney or using the municipal staff attorney for planning and zoning should be coordinated with your local elected body or government administrator. A municipal charter or policy may affect the representation, including who can authorize the expense. Most important, the attorney you call must be competent, communicate effectively, and have sufficient experience in municipal law, specifically planning and zoning. The State Bar of Michigan provides an Attorney Search, and you can ask other local officials to recommend an attorney who they trust and find responsive. Michigan State University Extension offers technical assistance to local governments on the selection of attorneys and other professionals. Contact your local land use educator for more information.