Zoning is a game municipalities can win if they know the rules and employ winning strategies. The following rules and strategies will allow municipalities to avoid zoning lawsuits or to win those lawsuits if they are brought.
1
Adopt and Follow a Plan
A master plan is the official statement of the goals and policies for orderly and desirable future development within the municipality. Absence of a master plan can put the municipality’s zoning decisions at serious risk.
Rezonings and other land use approvals should be consistent with the master plan. A master plan serves as a guide for future land use while zoning ordinances regulate the actual use of land here and now. Typically, a master plan is intended to show the use of land at a particular end of a planning period, such as five to ten years. The zoning map, however, shows land as it is intended to be used in the present.
Remember to review and update your master plan periodically. Right now, while the economy and land development are in a lull, is an excellent time to update your master plan.
2
Rely on Your Experts
Pay close attention to and follow your planning and legal advice. Good experts are essential to defending your zoning decisions.
Zoning involves many technical rules. It also requires the application of complex legal judgments and land use planning principles. Get the best assistance you can on these issues.
3
Follow Proper Procedures
Lawful notices and hearings are essential to zoning validity. For example, the Zoning Enabling Act prescribes minimum procedures for notices and hearings that must be followed in granting or denying all rezonings, variances, special use permits and planned unit developments. Your zoning ordinance may impose additional procedures that need to be followed.
Departing from the required statutory or ordinance procedures can be a fatal mistake. Courts routinely set aside zoning decisions when the required procedures are not followed, even if the noncompliance with procedures is relatively minor.
4
Know your Statutory Authority
The Zoning Enabling Act is the source of your zoning authority. The conditions and limitations imposed by the Act are mandatory.
Regulation of certain land uses are preempted by Michigan law and subject to limited or no local zoning regulations. Some examples: Small adult foster care homes; county-owned buildings; some airports; oil and gas wells; some mineral extraction; sales and distribution of agricultural pesticides, seeds and fertilizers; some internal aspects of mobile home parks; home piano lessons; some religious land uses, and many others.
The limits of zoning authority are constantly changing due to new legislation and court decisions. Good legal counsel is essential to knowing the limits of your zoning authority.
5
Honor a Public Purpose
A zoning decision is subject to attack if it does not reasonably promote a legitimate public purpose. Your master plan is evidence of a public purpose, but is not conclusive. Many purposes may be legitimate. Examples include: orderly development, infrastructure capacity, aesthetics, controlling nuisances, traffic safety, sanitation, growth, environment, flooding, and the local economy. There must also be a reasonable connection between the legitimate public purpose and the zoning decision.
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