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FREEDOM OF INFORMATION ACT
The minutes of an improperly held
closed session are subject to disclosure
The minutes of a closed session meeting
held in violation of the Open Meetings Act (the "OMA") are
subject to disclosure under the Freedom of Information Act (the
"FOIA"). In Lewis
v St Joseph County Medical Control Authority (2009 Mich
App LEXIS 2492; Case No. 283741), the County Medical Control
Authority convened for a disciplinary hearing. The individual
who was the subject of the hearing requested that any discussion of
disciplinary measures against him be conducted publicly. The
Authority denied the request and went into closed session.
Recognizing that under such circumstances a public body may go into
closed session only upon the request of the individual subject to
discipline, the Court of Appeals held that the closed session held by
the Authority violated the OMA. As such, the Court held that
the minutes of the meeting were available to the public and subject
to disclosure under the FOIA.
Personal emails are found to be exempt
from disclosure
Personal emails are not rendered
public documents solely because they are captured in the digital
memory of a public body's computer system. In Howell Education Association v Howell Board
of Education (2010 Mich App LEXIS 0143; Case No. 288977),
personal emails sent among Association officials that strictly
addressed union matters were captured on the computer server of the
Howell Public Schools. The server was designed to capture
automatically all emails on the system. The Court of Appeals
reasoned that the automatic capture did not constitute a governmental
function and that the retention of electronic data for convenience
does not render a personal email public. The Court held that
for a document to be considered public its retention must be related
to the performance of an official governmental function and that the
union emails were not retained for such a purpose.
Additionally, the Court held that the violation of a public body's
acceptable computer use policy that bans personal emails but does not
expressly provide that personal emails will be subject to the FOIA
does not transform a private email into a public record. The
decision has been appealed to the Michigan Supreme Court.
ZONING
The exclusion of a legitimate use
leads to the invalidation of a zoning regulation
In Bedford
Partners, LLC v Bedford Township (2009 Mich App LEXIS
1836; Case No. 278208), the Plaintiff had purchased a parcel of
property intending to construct a residential development. The
property was zoned agricultural despite being located between two
existing residential developments. The Township Board denied
the Plaintiff's rezoning request. The Court of Appeals upheld
the trial court's decision to overturn the Township's denial finding
that the zoning ordinance as applied was invalid because, based upon
a review of the surrounding uses, it served to exclude an otherwise
legitimate use of the property.
Court interprets zoning ordinance to
permit structures that are not specifically prohibited
The City of Troy's zoning ordinance
was not specific enough to prohibit or otherwise regulate certain
agricultural structures. In Papadelis
v City of Troy (2009 Mich App LEXIS 2588; Case No.
286136), a residentially zoned parcel of property was used to support
a nursery and garden center. The property owner built several
greenhouses and pole barn structures on the property. The City
of Troy believed the structures were not permitted on the
residentially zoned property because they did not meet the standards
of a single-family dwelling or accessory building. Upon its
review of the zoning ordinance the Court of Appeals disagreed with
the City's interpretation finding no definition or classification
that specifically regulated the greenhouses and pole
structures. Noting that a zoning ordinance must be specific
enough to allow a person of ordinary intelligence to know what is
prohibited or allowed, the Court interpreted the zoning ordinance to
allow the structures because they were not specifically prohibited.
BROWNFIELD AUTHORITY
Court denies City Council's attempt to
dissolve brownfield authority
The Brownfield Redevelopment Financing
Act provides only one reason to dissolve a brownfield authority-the
completion of the authority's purpose. In Ecorse v Ecorse Brownfield Redevelopment
Authority (2010 Mich App LEXIS 0043; Case No.
286386), the Ecorse City Council attempted to dissolve the City's
brownfield authority based upon the authority's submission of a
faulty brownfield plan, its failure to amend a plan, and the
wrongdoing of one of its members. Based upon its review of
Section 19 (MCL 125.2669) of the Act, the Court of Appeals held that
the only permissible reason for the City Council to dissolve the
authority was that the Authority had completed its purpose. The
Court opined that the Act provided no other basis for dissolution,
however rational.
UTILITY RATES
Supreme Court decides water rate case
The Michigan Supreme Court reversed
the Michigan Court of Appeals in Oneida
Charter Township v City of Grand Ledge
(2009 Mich LEXIS 2009; Case No.
138520) and held that MCL 123.141(2) and (3) do not apply to
municipal water systems that serve less than one percent of the
state's population and that are not contractual customers of another
water system. This means that the limitation in those
subsections on rates charged for such services do not apply to those
municipal water systems.
It is important to note that the
Court's ruling is limited to the application of MCL 123.141(2) and
(3). Other constitutional, statutory, regulatory and contract
provisions may, nevertheless restrict rates charged for water
service.
ANNEXATION
Annexation provisions within the
Charter Township Act do not have to comply with election law
Section 34 of the Charter Township Act
(MCL 42.34), which governs the annexation of township property by a
city or village, does not violate constitutional voting and equal
protection guarantees by permitting only qualified electors living in
the portion of the township proposed for annexation to vote on the
issue. In Charter Township
of Meridian v Ingham County Clerk (285 Mich App 581
(2009)), the Court of Appeals recognized that, because the fixing of
municipal boundaries is a legislative function with or without the
consent of the electorate, it is constitutionally permissible for the
legislature to impose annexation voting restrictions and residency
requirements. Additionally, the Court affirmed the trial
court's finding that the county clerk was not required to adhere to
the Michigan election law when certifying the annexation ballot
language.
TAXATION
Municipal financing does not render a
private facility a tax exempt charitable institution
A privately owned ice arena open to
the general public and financed in part by municipal bonds is not a
charitable institution under the General Property Tax Act and is not
exempt from township property taxes. In Involved Citizens Enterprises, Inc v
Township of East Bay (2009 Mich App LEXIS 2274; Case No.
284706), the Court of Appeals found that the Centre Ice Arena,
although built and operated by a nonprofit organization that received
funding assistance from the Economic Development Corporation of Grand
Traverse County, could not be considered a charitable institution for
tax exemption purposes because: 1) it was not established chiefly for
charity purposes; and 2) its services could not be considered a gift
to the general public because its appeal was limited to participants
involved in skating activities (the Court noted that the public had
previously rejected a bond proposal to fund the arena by a 3 to 1
margin).
The death of a joint tenant does not constitute a transfer of
ownership under the Property Tax Act
The death of a joint tenant does not
constitute a transfer of ownership under Section 27a of the General
Property Tax Act. In Klooster
v City of Charlevoix (2009 Mich App LEXIS 2555; Case No.
286013), the City of Charlevoix reassessed ("bumped-up")
the taxable value of a parcel of property that was owned jointly upon
the death of one of its owners. The City considered the death a
transfer of ownership under Section 27a. The Court of Appeals
reviewed Section 27a and determined that based upon the section's
plain language the creation or termination of a joint tenancy does
not constitute a transfer of ownership. Additionally, the Court
reasoned that a death could not constitute a conveyance under Section
27a because no written instrument was created that affected title in
the subject property; i.e., the conveyance occurred by operation of
law upon the death of the joint tenant.
CONFLICT OF INTEREST
Public Act 210 of 2009
Effective January 4, 2010, Public Act
210 amended the Incompatible Public Offices Act (1978 PA 566) to
allow a public officer or employee to serve as a member of any of the
following: 1) a neighborhood improvement authority established under
the Neighborhood Improvement Authority Act; 2) a water resource
improvement tax increment finance authority ("TIFA")
established under the Water Resource Improvement Tax Increment Finance
Authority Act; 3) a historical neighborhood TIFA established under
the Historical Neighborhood Tax Increment Finance Authority Act; 4)
the board of a principal shopping district or the board of directors
of a business improvement zone established under the Principal
Shopping District Act; 5) the board of directors of a land bank fast
track authority established under the Land Bank Fast Track Act; 6) a
corridor improvement authority established under the Corridor
Improvement Authority Act; or 7) a metropolitan district established
under the Metropolitan District Authority Act.
CONDEMNATION
Court recalculates good faith written
offer
Compensation offered without the
formal approval of the governing body constitutes a good faith
written offer under the Uniform Condemnation Procedures Act (the
"Act"). In County
of St Clair v Skotcher (2010 Mich App LEXIS 0060; Case
No. 287225), the County's parks and recreation commission director
made a written offer to a property owner to purchase an
easement. The director's offer was rejected. After
obtaining an appraisal of the property the County Commission approved
the issuance of a good faith written offer based upon the appraisal
and authorized the initiation of condemnation proceedings. In calculating
attorney fee reimbursement, the Court of Appeals held that the
director's initial offer must be used as the good faith written offer
finding that it was consistent with the intent of the Act. The
Court opined that when dealing with multiple offers, an offer made
first in time must constitute the basis for the calculation of
attorneys fees. The Court recognized that each case had to be
decided on its own facts and circumstances and stated that it was not
establishing a "hard and fast" rule.
If you have questions regarding these
cases please contact your Clark Hill municipal attorney.
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