How to Win the Land Zoning and Re-zoning Game
Adopt and Follow a PlanA 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.
Rely on Your ExpertsPay 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.
Follow Proper ProceduresLawful 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.
Know your Statutory AuthorityThe 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.
Honor a Public PurposeA 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.
Do Not "Take"Constitutional principles state that, at some point, regulation of land may go too far and result in the "taking" of that land in violation of our Constitution. Good legal advice will help you avoid making zoning decisions that cross this line.
When does regulation go too far -- and become a taking? There are no pat tests or rules to determine this in every case, but a few basic principles are good to remember:
You must allow every parcel of land a reasonable economic land use -- but not its highest and best use.
Reasonable use must be judged by the property owner's reasonable investment-backed expectations. The reasonable use of any land must also be judged based on that specific parcel's character and adaptability. Someone who buys an acre of swamp, for example, has no reasonable expectation that they will be permitted to develop it.
Do Not ExcludeMake sure that the zoning ordinance text and map provide an appropriate location for all types of land uses. If a court finds that you have excluded a legitimate land use from the entire area, it may allow a landowner to locate the excluded use wherever they choose. This principle has been sometimes used to force the location of mobile home parks in municipalities that do not provide for them.
Avoid Conflicts of InterestThe perception of fairness in the zoning process is undermined by perceived conflicts of interest. If a member of a board or commission making a zoning decision has a personal financial stake in the approval or denial of the proposed land use, their conflict of interest may taint the decision and make it subject to reversal in court.
The Zoning Enabling Act allows municipalities to appoint alternate zoning board of appeals members who can serve in situations where a conflict is presented. It is wise to have such alternate members available and to seek the advice of legal counsel if a conflict of interest question is presented.