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Municipal Law
Alert
Land Use
2010 PA 330.
Public Act 330
amends the Michigan Zoning Enabling Act by clarifying the deadline to
appeal a decision of a zoning board of appeals to the circuit
court: 30 days after the ZBA issues
its signed written decision or 21 days after the ZBA
approves its meeting minutes, whichever occurs first.
2010 PA 305.
Public Act 305 amends the Michigan Zoning
Enabling Act to require the consideration of public transportation in
newly adopted or substantially amended zoning ordinances. Under
Public Act 305, zoning ordinances adopted or substantively amended 90
days or more after the Act's effective date must include provisions to
recognize and accommodate public transportation.
Planning Enabling Act/2010 PA 134.
PA 134 amends the Michigan Planning
Enabling Act by: 1) modifying the definition of "streets"
to address bicyclists and pedestrians; 2) expanding the items that
may be included within a master plan to encompass non-motorized
transportation; 3) requiring that non-motorized transportation
improvements be identified within a master plan; and 4) ensuring that
transportation components of a master plan are implemented in
cooperation with applicable state and county authorities.
SB 0048.
This bill proposes to amend the Revised
School Code to prohibit a public school board from building or
expanding (expansion resulting in the square footage of the building
being increased by at least 20%) certain school building without
first obtaining site plan recommendations from the local unit of
government.
Adjacent
roadway improvements held as permissible condition of PUD approval.
In City/Village
of Douglas v Von Der Heide
(2010 Mich App LEXIS 2219, Case No.
292948), the City approved a proposed condominium planned unit
development ("PUD") contingent
upon the developer reconstructing a dirt roadway adjacent to the PUD. The developer agreed but the
reconstructed roadway was built below specifications. The
developer claimed the City lacked authority to compel roadway
improvements. The Court of Appeals held that the City had the
authority under the MZEA to impose
"reasonable conditions" on a PUD
approval and determined that a "reasonable condition" is a
fair and proper condition under the circumstances that relates to a
legitimate governmental purpose. The court determined that
improvement to the roadway was necessary to ensure that police, fire
and emergency services had access to the condominium
development. The court recognized that the reconstructed road
was insufficient.
Economic
Development
2010 PA 272.
Public Act 272
creates the Next Michigan Act, which allows five regions (counties
and communities) to join together in an interlocal
agreement which can use core community economic development tools to
attract businesses. The tools include renaissance zones,
personal property tax abatements, IFT's,
and LDFA's. The Act only allows 25
businesses to be qualified as Next Michigan businesses, and specifies
that each Next Michigan Development Area may only have a maximum of
10 qualified businesses.
HB 4148.
This bill proposes to create the Delinquent
Special Assessment Revolving Loan Fund Act to provide for the
establishment of a $5 million special assessment revolving loan fund
within the state treasury. Eligible municipalities may apply
for a loan from the fund on a first come/first serve basis. An
"Eligible Municipality" is a city, village, township or
county that: (1) has issued bonds, or has pledged its full faith and
credit for bonds, for infrastructure improvements financed by a
special assessment; and (2) is unable to make necessary payments on
those bonds because special assessment payments on properties
benefited by the infrastructure improvements have been delinquent for
6 months or more.
Transportation
"Complete
Streets"/2010 PA 135.
PA 135 amends the State Trunk Line
Highway System Act ("Act 51") to require the State
Transportation Commission to adopt a "Complete Streets"
policy and to make model policies available to municipalities and
counties. Once the Complete Streets policy is adopted by MDOT, prior to undertaking a road improvement
project state and local road agencies will be required to consult
with each other and agree on how best to incorporate non-motorized
transportation into the project.
Elections
The legislature recently enacted a
number of amendments to the Michigan Election Law. Generally,
the amendments require that city primary elections previously
set in September of odd-numbered years be set at the odd-year primary
election in August. The aim of the amendments is to hold
primary elections in some cities a month earlier in order to give
election officials the time needed to prepare general election
ballots so that absentee ballots will reach overseas and military
voters on time. Additionally, the amendments provide
clarification to the election requirements for village offices.
2010 PA 182.
PA 182 amends the Michigan Election Law to
specify that after December 31, 2010, a city that adopted a
resolution so that its regular election primary was held at the
September election would be required to hold its regular election
primary at the odd-year primary election in August.
2010 PA 183.
PA 183 amends the Michigan Election Law by
deleting the deadline for filing a nominating petition for a city's
September primary election. Additionally, the Act amends the
Election Law to apply a filing deadline to a February primary,
instead of an August primary (4 p.m. on the 12th Tuesday before the
August primary), and deletes reference to political parties on a city
office election ballot.
2010 PA 181.
PA 181 amends the Michigan Election Law to
define "September election" with respect to the election of
village offices to mean the election held on the first Tuesday after
the second Monday in September in an odd-year.
2010 PA 184.
PA 184 amended
the Michigan Election Law to refer to a village's September election,
rather than September primary election, in regard to a nominating
petition deadline. Prior to the
passage of PA 184, if a village council adopted a resolution to hold
its regular election at the September primary election, the
nominating petitions for village offices had to be filed with the
village clerk by 4 p.m. on the 12th Tuesday before the September
primary election. PA 184 deletes "primary" from
those requirements, so that they would apply instead to a
"September election."
Local Government
HB 4117.
This bill
proposes to amend the Charter Township Act to provide alternative
publication methods for a charter township required to publish a
legal notice in a newspaper of general circulation, including posting
the notice on a website or on the township's cable access station.
SB 0090.
This bill
proposes to amend the Glenn Steil State
Revenue Sharing Act by requiring that after September 30, 2011,
25.06% of 21.3% of the state sales tax collections at a rate of 4%
shall be distributed to counties on a per capita basis and that after
September 30, 2011, 74.94% of 21.3% of state sales tax collections at
a rate of 4% shall be distributed to cities, villages and townships
on a per capita basis.
Open Meetings
Act
Court refuses
to expand the definition of "deliberations".
In Mandich v Owendale
Gagetown Area Schools (2010 Mich App LEXIS 2384, Case No. 294264), the school
board's finance committee, comprised of 3 board members, met with the
school's auditor and superintendent before a regular meeting of the
school board to hear the auditor's presentation without questioning
or discussing the presentation. Afterwards the auditor gave an
identical presentation to the entire board at its regular meeting and
the board formally accepted the audit. A former board member alleged
that the committee "deliberated" during its meeting by
receiving information about the audit which allowed it to reflect on
issues related to the audit. The Court of Appeals upheld its
narrow definition of "deliberations" under the OMA as the exchanging of affirmative or opposing
views, debating a matter or engaging in a discussion about a
matter. The court held that because the finance committee had
not discussed the presentation or otherwise engaged in any
"deliberations", the committee meeting was not governed by
the OMA, so notice of the meeting was not
required.
Special
Assessment
Public
improvements not always a benefit.
In Michigan
Adventure, Inc v Dalton Township (278 Mich
App 151 (2010)), the township sought to install a sewer line across Michigan
Adventure's property in coordination with a regional wastewater
treatment system and planned to specially assess the property to fund
the project. Michigan Adventure used its own onsite wastewater
stabilization lagoons. The sewer line did not benefit the
property because Michigan Adventure's onsite disposal system was
fully operational and inexpensive to maintain while the new line
would be a significant cost to Michigan Adventure. The sewer
line also would not benefit future property values in the largely
rural area. The Court of Appeals upheld the Tax Tribunal's
vacation of the special assessment for a failure to confer a
benefit. The court also held that Michigan Adventure's verbal
objection at the public hearing on the special assessment roll was
sufficient and that a written objection was unnecessary under MCL 123.743.
Wastewater
Treatment Agreement
Former federal
grants do not preclude a city from terminating a wastewater treatment
agreement according to the agreement's terms.
In Charter
Township of Haring v City of Cadillac (2010 Mich
App LEXIS 1919; Case No. 292122), the City of Cadillac and the
townships of Haring, Selma and Clam Lake entered into an agreement
for wastewater treatment services for the payment of an initial fee
and annual service charges. By its terms, the agreement expires
on May 12, 2017. The city notified the townships that it would
not be renewing the agreement after its expiration. The
townships claimed the City had an ongoing obligation to provide wastewater
treatment services regardless of the agreement's term
provision. The townships argued that the federal grant received
by the city to construct the treatment plant compelled the city to
provide treatment services to the townships for the "design life"
of the facility (estimated at 75 years). Additionally, the
townships claimed that the initial fee and service charges paid over
the course of the agreement (originally executed in 1975) provided
contractual ownership of, and title to, a portion of the capacity of
the city's wastewater system. The Court of Appeals held that
the federal grant received by the city obligated it to construct the
treatment plant, which it had done, without creating any ongoing
obligation. The court held that the federal grant had no impact
upon the underlying agreement or its terms. In its
interpretation of the agreement, the court held that its terms
provided a right to the townships to utilize a portion of the city's
treatment plant for a fixed period; akin to a lease, and that the townships
did not acquire any ownership interest in the facility.
Finally, the court held that Michigan law provided the city with the
discretionary authority to provide treatment services beyond its
borders for a fixed term, but it did not require the city to do so.
Medical
Marihuana
Non-registered
patients can invoke the Michigan Medical Marihuana Act (the
"Act") as a defense, but the required doctor-patient
relationship may be challenged.
In Michigan v Redden (2010 Mich App LEXIS 1671; Case No. 295809), two
individuals were growing and using marihuana based upon a doctor's
recommendation. Although the doctor was licensed in Michigan,
he did not maintain an office in the state and estimated that he had
met with each individual for approximately one-half hour before
recommending their use of marihuana. While both had applied for
a registration card as qualified patients under the Act, neither had
been registered by the state. Police raided the property and
charged both individuals with manufacturing marihuana. Based
upon a strict interpretation of the Act, the Court of Appeals held
that the individuals could raise the Act as a defense to prosecution
even though they weren't registered when the police raided the
property. However, because the Act requires a
"bono-fide" doctor-patient relationship, the court
determined that the prosecution could challenge the existence of such
a relationship under the facts of the case. Although the
court's opinion is limited, Judge O'Connell's concurring opinion is
very instructional. In his concurrence, the Judge expressed his
belief that growing cooperatives are not permitted and that the Act
was not approved or designed to provide entrepreneurial
opportunities. Judge O'Connell goes on to dissect the Act
summarizing its numerous defects while making a convincing case for
the legislature to provide guidance on its implementation.
Natural Resources and Environmental Protection
Act (the "NREPA)
Without causation, the NREPA
does not empower the DNRE to require a
municipality to install a sanitary sewer system.
In
Department of Environmental Quality v Township of Worth (2010 Mich App LEXIS 1572; Case No. 289724), the MDNRE sought to order the township to install a
sanitary sewer system pursuant to Section 3109 of the NREPA (MCL 324.3109)
because private septic systems within the township had begin to fail
resulting in effluent discharges into Lake Huron. The township
did not comply with the MDNRE's order
claiming financial impossibility. The Court of Appeals held
that the NREPA did not impose
responsibility upon the township for sewage discharges within its
jurisdictional boundaries caused by others. Accordingly the
township was not required to adhere to the MDNRE's
order.
Taxation
Without specific statutory authorization a payment in
lieu of taxes was illegal and repayment was required.
In
Mercy Services for the Aging v City of Rochester Hills (2010 Mich App LEXIS 2044; Case No. 292569), the Mercy
Bellbrook Retirement Community ("Mercy"), a Catholic
nonprofit corporation that provided housing and medical care for low
and moderate income elderly persons, had paid an annual payment in
lieu of taxes ("PILT") to the
City of Rochester Hills in accordance with the MSHDAA
for a number of years (the MSHDAA requires
nonprofit housing corporations to pay the annual service
charge). Mercy claimed it was exempt from payment of the
service charge under the General Property Tax Act due to its
religious affiliation. The Court of Appeals held that because
Mercy was exempt from property taxation pursuant to MCL 211.7o(7) it had no obligation to pay the PILT. The court ordered the city to refund
Mercy the annual service charge paid from 2002 through 2007.
If you have any questions regarding any of the
above information please contact your Clark Hill municipal attorney.
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