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Municipal Law Update

Apr 18, 2013

By: C. Nicholas Curcio and Travis W. Weber

Annexation

House Bill 4024, which is awaiting review by the House Committee on Local Government, would amend the Charter Township Act, 1947 PA 359, to further prohibit the annexation of, and detachment from certain charter townships.  Currently, the Charter Township Act prevents municipalities from annexing land in neighboring townships that meet certain self-sufficiency criteria.  HB 4024 completely prohibits the annexation of a charter township meeting that criteria if its population exceeds 20,000.  It further expands the self-sufficiency criteria to include charter townships that do not provide trash service, so long as they provide recycling services.

Blight Violations

Senate Bills 35 through 39 create a variety of new mechanisms that would assist municipalities in enforcing blight ordinances.  The package of legislation is currently awaiting consideration before the full Senate.  Senate Bill 35 establishes additional state civil and criminal penalties for persons failing to pay municipal blight violations.  SB 36 amends the Michigan Zoning Enabling Act, 2006 PA 110, to allow a city zoning ordinance to make persons with delinquent blight violations ineligible for rezoning, site approval, or other zoning authorization. Similarly, SB 37 would permit a city to provide by ordinance that persons would be ineligible for a building permit, certificate of use and occupancy, or a variance if the person were delinquent in paying a fine for blight violation.  SB 38 would permit a city to garnish wages of a person delinquent in paying a fine for a blight violation, and SB 39 would allow a lien against property involved in a blight violation to be enforced and discharged in the same manner as liens for delinquent taxes.

Charter Counties

House Bill 4151 would amend the Charter Counties Act, 1996 PA 293, to create two new requirements for county charters.  First, county charters will be required to provide for the nonpartisan election of sheriffs and prosecuting attorneys.  Second, HB 4151 limits all charter counties, regardless of population, to 21 members on the board of county commissioners.  Currently, Wayne County is permitted to have up to 27 members on the board of commissioners.  HB 4151 is currently awaiting consideration in the House Committee on Elections, and is tie-barred to House Bill 4050, which would amend the Michigan Election Law, 1954 PA 116, to provide the procedure for the election of nonpartisan of sheriffs and prosecuting attorneys.  Neither bill may take effect unless the other is enacted.

Concealed Weapons

House Bill 4098 amends the "gun-free-school-zone" provisions of the Concealed Weapons Act, 1927 PA 372, to permit school superintendents to authorize teachers, administrators, or other school employees possessing concealed pistol licenses to carry a concealed pistol on school property.  HB 4098 also requires school superintendents to condition approval for concealed carry on successful completion of training, which may be in addition to that required to obtain a permit.  The legislation also permits authorized school employees to store a pistol in a securely locked container if they elect not to carry.  HB 4098 is under consideration in the House Committee on Education.

Drain Projects

In Miller Foundation v Big March Intercounty Drain Drainage Board , (2013 Mich App LEXIS 576, No 306272, March 26, 2013), local landowners sued to enjoin the drain commissioner from acting on a drainage project proposed by the county road commission.  The Michigan Court of Appeals granted the injunction, finding four reasons why the county road commission lacked authority to petition for the project under MCL 280.327 ("Section 327").  First, the court found that the majority of the roads involved in the project were not under the county road commission's control, but were instead controlled by other highway authorities.  Second, the project involved the consolidation of drains, which is not a permitted activity under Section 327.  Third, Section 327 only allows for projects designed to "take surplus water across adjacent land," not projects that are broader in scope.  Finally, Section 327 does not allow projects that span multiple counties.

First Amendment

In Martz v Bower , (2012 Mich App LEXIS 2375, No 306486, November 27, 2012), public officials sued a local citizen who had accused them of using "illegal" procedures in creating a police department.  In ruling for the defendant citizen, the Michigan Court of Appeals explained that a speaker may be held liable for defamation if the speaker erroneously accused the plaintiff of criminal conduct.  The Defendant in Martz accused the officials of violating the Open Meetings Act, but not of violating any criminal law.  Further, the Plaintiffs failed to present any evidence that the Defendant had acted with "actual malice" when making the accusations.  As such, the court roundly criticized the Plaintiffs for attempting to silence public criticism, and stated that they could have been sanctioned for bringing a meritless lawsuit.

In Freedom from Religion Foundation, Inc v City of Warren , (2013 US App LEXIS 3827, No 12-1858, February 25, 2013), the United States Court of Appeals for the Sixth Circuit ruled a holiday display in the atrium of a municipal building to be constitutional.  The display included a Nativity scene and a variety of secular symbols.  Plaintiff requested that the City include a sign with the display, saying, "there are no gods, no devils, no angels, no heaven or hell.  There is only our natural world.  Religion is but a myth and superstition."  The City refused, and Plaintiff filed suit, claiming the City's refusal to place such a sign was evidence of the City's official endorsement of religion.  The court rejected that argument, holding that the City was free to exclude the sign because, among other things, the Constitution does not require that every possible viewpoint be incorporated in a governmental display.  Additionally, the Court noted that the display contained a variety of secular symbols along with the obvious religious symbols.  Such a display, the court noted, was neither an endorsement of, nor excessive entanglement with religion.

Governmental Immunity

Building Demolition

In Bonner v Rowell, (2012 Mich App LEXIS 2423, No 303814, December 4, 2012), Plaintiffs sued each of the individual members of the Brighton City Council alleging that they (1) negligently and vindictively denied an appeal of the building inspector's report; and (2) filed suit to obtain court-ordered demolition.  The Michigan Court of Appeals held that the Defendants were protected from suit under the Governmental Immunity Act, 1964 PA 170.  First, the court found that the Defendants could issue the demolition order because the relevant ordinance did not require them to provide a reasonable time for repairing the buildings.  Instead, the ordinance only required that the Plaintiffs be given reasonable time to "abate" the nuisance, meaning that the Defendants could lawfully order abatement by demolition.  Second, the court also held that city council members act within their "legislative authority" when making decisions as an appellate board.  In reaching that decision, the court expressly rejected the argument that legislative immunity only extends to the acts of considering and passing legislation.

Highway Exception

In Hampton v Southfield , (2012 Mich App LEXIS 2585, No 306322, December 18, 2012), the Michigan Court of Appeals held that an injured bicyclist was entitled to proceed to trial on a claim of negligent road repair.  In reaching that decision, the court first held that bicyclists are not categorically excluded from asserting the "highway exception" to governmental immunity.  Although the exception does not apply to injuries occurring on bicycle paths, it can apply when a bicyclist is injured on a public roadway.  Second, the Plaintiff sufficiently established a compensable "defect" in the roadway by submitting a photograph of a large crack capable of damaging a car.  Third, although there was no evidence that the Defendants had actual notice of the defect, the Plaintiff could proceed to trial based on evidence that the freeze-thaw cycle likely caused the crack to appear several months before the mid-July accident.

Land Division

House Bill 4348 would amend the Land Division Act, 1967 PA 288, to exempt certain school-owned lands from the platting requirements that ordinarily apply to land divisions.  In order to qualify for the exception, the original parcel must be smaller than 100 acres, owned by a school district or intermediate school district, the resulting parcel must be used for educational purposes, and the school district may not sell the parcels for profit.  HB 4348 is awaiting review in the House Committee on Local Government.

Medical Marihuana

House Bill 4271 creates the "Medical Marihuana Provisioning Center Regulation Act" to address the legal status of medical marihuana dispensaries.  As we noted in our February e-alert, the Michigan Supreme Court recently held that the dispensary business model is prohibited under current law.  HB 4271 removes the statewide prohibition on dispensaries but gives municipalities broad discretion to impose their own regulations.  A municipality may choose to completely prohibit the operation of dispensaries, or may instead establish a registration or licensing system.  A municipality may also require dispensaries to provide testing reports regarding the quality and purity of the products they provide.  HB 4271 is awaiting consideration in the House Committee on Judiciary.

The Michigan Supreme Court recently announced that it would hear oral arguments in Ter Beek v City of Wyoming .  The Michigan Court of Appeals ruled in July 2012 that the City's zoning ordinance, which prohibited any use that violated federal law, was preempted by the Michigan Medical Marihuana Act (MMMA).  The zoning ordinance acted as an outright prohibition of any medical marihuana related activity.  The Michigan Supreme Court requested that each side argue two issues: (1) whether such a zoning ordinance is preempted by the MMMA, and (2) if so, whether the MMMA is preempted by the federal Controlled Substance Act as it relates to medical marihuana.  There is no date yet set for oral arguments.

Open Meetings Act (OMA)

In Speicher v Columbia Twn Bd of Trustees , (2013 Mich App LEXIS 89, No 306684, January 22, 2013), the Plaintiff filed suit under the OMA alleging that the Defendant had failed to post a public notice within 3 days of moving from a monthly to a quarterly meeting schedule.  The Michigan Court of Appeals found that the Plaintiff had substantially proven his allegations, and had thereby established a technical violation of the OMA.  The court refused to grant injunctive relief, however, because the notice violation had not caused the Plaintiff to miss any meeting that actually took place.  In announcing that holding, the court suggested that a plaintiff would only be entitled to injunctive relief based on a cancelled meeting if the public body was violating the OMA at the time when it changed the meeting schedule.

Septic Waste

In Gmoser's Septic Serv, LLC v Charter Twp of E Bay , (2013 Mich App LEXIS 319, No 309999, February 19, 2013), the Michigan Court of Appeals held that municipalities are free to impose stricter regulations on septic waste than those imposed under state environmental laws.  The court specifically upheld an ordinance that bans the use of land application and requires servicers to dispose of their waste at a particular facility.

Takings

Leaseholds

In Teletech Inc v City of Flint , (2013 Mich App LEXIS 318, No 305937, February 19, 2013), the Michigan Court of Appeals held that the City had "taken" the Plaintiff's leasehold interest in a condemned property, even though the Plaintiff had not yet vacated the premises.  The court explained that the act of condemning the property converted the Plaintiff's multi-year lease into a tenancy at sufferance that could be terminated upon 30-days' notice.  As such, the City was required to compensate the Plaintiff for the difference in value between the two types of tenancy.  Moreover, the court found that the evidence was sufficient to show that several businesses would have licensed the premises from the Plaintiff if the City had not condemned it.  Accordingly, the Plaintiff was entitled to compensation for the lost licenses.

Mandatory Transfers

In Charter Township of White Lake v Azac Holdings, LLC ,(2013 Mich App LEXIS 349, No 2010-108675-CC, February 21, 2013), the Michigan Court of Appeals considered the "takings" ramifications of an ordinance that required private developers to convey their sewage, water, and drainage systems to the township for public maintenance.  The court held that the township had not "taken" the developer's systems in the instant case, since the developer had notice of the ordinance when it began installing the systems.  Because the developer had no expectation interest in retaining control over the systems, the court held that the township was not required to pay the developer any more than a nominal $1.00 fee for the conveyance.

Zoning

Density Controls

In Pittsfield Investors LLC v Pittsfield Charter Township , (2013 Mich App LEXIS, No 304087, March 21, 2013), a developer sued the Township for refusing to rezone a large parcel of farm land for a 600-unit residential development.  The Michigan Court of Appeals held that the Township's zoning decision did not violate substantive due process, since the developer failed to show that reasonable minds would not disagree as to whether agricultural zoning advanced the Township's interests.  In doing so, the court specifically noted that: (1) there was no evidence of a need for housing in the Township; (2) the majority of Township residents opposed the development; (3) the parcel lacked sufficient public infrastructure; and (4) the Township's Comprehensive Plan specifically called for preservation of the "rural character" of the area where the parcel was located.

Off-Street Parking and Vehicle Storage

In Charter W Bloomfield v Jacob , (2013 Mich App LEXIS 369, No 305598, February 21, 2013), the Michigan Court of Appeals rejected a number of constitutional challenges to a township's regulation of off-street parking and vehicle storage.  Among other things, the ordinances required that all residential parcels include off-street parking, and that vehicles and other machinery not be "stored" in a part of the yard that was visible from the street.  The court first held that the ordinances did not violate due process because the township had a legitimate interest in preserving the aesthetics of residential land.  Second, the Township's storage ordinance was not unduly vague because it specifically enumerated particular objects that could not be left in plain view.  Third, the property owner failed to establish an equal protection violation, because the evidence showed that the owner's violations were more frequent and sever than those of other individuals who were not prosecuted.