Who should decide if a zoning permit is issued?
Michigan law provides three options for who decides to issue zoning permits. There is a way to determine which option is best for a local government to use.
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 how does one choose what may be the best option provided in the Michigan Zoning Enabling Act (MZEA) (MCL 125.3101 et seq.)?
For purposes of executive, or administrative, decisions we are talking about who makes the final decision concerning the issuing or denying a zoning or land use permit, special use permit, planned unit development (PUD) handled administratively and site plan reviews. The MZEA provides for these decisions 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, the legislative body, that is discussed in detail in Legislative body involvement in zoning administrative decisions can raise important questions.
First is the idea that with approving or denying a zoning or land use permit, special use permit, planned unit developments (PUD) handled administratively and site plan review, the basis for the decision is if the proposed project complies with the standards written in the zoning ordinance or not. Decisions in these cases must be based on standards, not popular opinion, other concerns not already addressed in the zoning ordinance, and so on. A very important concept, taught and repeated a number of times in the Michigan State University Extension Michigan Citizen Planner program, is “if an applicant meets all the standards stated in the ordinance, approval must be given.”
“If all standards and requirements are met: approval must be given.”
This becomes especially important because everything is supposed to be based on compliance with standards in the ordinance, or not. If a decision is challenged, the court will focus on the ordinance standards – nothing else. A well-supported decision provides the background needed to build a solid legal foundation for the decision, which involves taking detailed minutes. For each case, the minutes should reflect content of discussion, the hearing record, findings of fact, reasons, the decision, 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).
So, which official or body should be assigned the task of reviewing and making a decision: planning commission, zoning administrator or legislative body?
The answer might be finding a balance between two competing goals:
- Minimizing the amount of red tape, length of time, it takes to process and decide (favors the zoning administrator doing the task).
- Not placing too much power in the hands of one individual, but rather placing the decision before an administrative body such as a planning commission (or more rarely the legislative body). Then the discussion is at a public meeting and more than one person is engaged in the discussion and decision.
In reality, the answer in any given local government will be a combination: where some decisions are assigned to the zoning administrator and others are assigned to a public body. Then, the question becomes when should it be an individual or a public body deciding?
To help answer that question we should examine what the standards are in the local government’s zoning ordinance. Standards, upon which zoning decisions are based, are usually found in four places in the zoning ordinance:
- In the part of the zoning ordinance often called general provisions. These are the requirements, or standards, that apply throughout the zoning jurisdiction, regardless of the zoning district.
- In the part of the zoning ordinance about the particular zoning district in which the parcel at question is located. These are the regulations, standards, which are unique to that zoning district.
- In the part of the zoning ordinance on special use permits (and PUDs). These are the general standards for all special uses (and PUDs) located anywhere in the zoning jurisdiction.
- In the part of the zoning ordinance that addresses specific special uses (and PUDs). These may be in its own Article, in the zoning district. An example might be gravel mining and the standards related to review and approval of that special use.
As one reviews these standards in the zoning ordinance, they can be placed in two categories.
First would be “non-discretionary” standards. When one sits down to determine if a proposed land use complies with the standard or not, you find it is pretty black and white. You can measure or count to determine if the standard is met. There is very little judgment, or discretion, needed to find compliance or lack of compliance. Yard setbacks or number of parking spaces are non-discretionary standards. Another example of a non-discretionary standard is: “Whenever a residential zone abuts a commercial zone, an eight-foot-high brick wall shall be constructed along the property line.”
If the type of approval is predominantly reviewing non-discretionary standards then minimizing the amount of red tape, length of time, it takes to process and decide may be the priority. This means the zoning administrator (one individual) could be assigned the task. Most zoning ordinances already do this with zoning permits, (also known as land use permits, permitted uses or uses by right).
Second would be “discretionary” standards. When one sits down to determine if a proposed land use complies with the standard or not, you find there is grey area in making the determination. It requires judgment, and there may be differing opinion, to determine if the standard(s) is (are) met or not. The standard might require determining if it fits with the environment, or does not exceed capacity of police or fire services. Another example of a common non-discretionary standard is: “The proposed land use must be compatible with adjacent uses of land.”
Discretionary standards may require an opportunity for residents in the immediate area to contribute to the debate. For example, neighbors may have information or views as to if the land use is compatible with them (the adjacent uses) or not. If the type of approval is reviewing many or predominantly discretionary standards then not placing too much power in the hands of one individual, but rather placing the decision before an administrative body such as a planning commission may be the priority. Also, the discussion is at a public meeting and more than one person is engaged in the discussion and decision.
The reality is one will find a number of decisions are easy to put into the non-discretionary category (most zoning permits), and are easy to put into the discretionary category (most PUDs, major commercial, industrial, and development projects). But there will be a large number in between (small commercial, additions to commercial or industrial). Those will take more debate and analysis to find the best balance between the goals of minimizing the amount of red tape, length of time for review, and not placing too much power in the hands of one individual.