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Municipal Law News

December 18, 2012

Brownfield Redevelopments

Senate Bill 1210 amends several sections of the Brownfield Redevelopment Financing Act, 1996 PA 381.  First, it creates the State Brownfield Redevelopment Fund, used in part to provide grants and loans for eligible activities on eligible properties approved by the Michigan Strategic Fund, and requires brownfield plans capturing the state education tax to include paying 3 mills of that tax into the fund.  If a brownfield plan includes the capture of school operating taxes to fund infrastructure improvements on eligible property requiring MDEQ approval, a brownfield authority may submit a work plan or a combined brownfield plan, instead of individual plans for each project.  SB 1210 also permits an authority to use certain captured funds before a brownfield plan is approved.  It adds "historic resource" to the list of eligible properties on which activities may occur, defined to be a publicly or privately owned historic building or structure located in an historic district designated by the National Register of Historic Places, the State Register of Historic Sites, or a local unit acting under the Local Historic Districts Act.

Under the bill, a governing body may terminate a brownfield plan if a planned project does not occur within 5 years, if there is no outstanding principal or interest on bonds issued under the plan.  SB 1210 takes effect immediately upon the governor's approval.

Concealed Weapons

Senate Bill 59 makes a number of revisions to Michigan's concealed weapons permitting process.  Initially, it transfers the permitting process from concealed weapons licensing boards to county sheriffs.  More importantly, however, it expressly permits the concealed carry of firearms in a number of areas previously considered "gun-free zones."  Specifically, license holders meeting new criteria will be permitted to carry concealed firearms in schools and on school property, at child care centers, bars, churches, synagogues, mosques, temples or places of worship, entertainment facilities seating 2,500 or more people, hospitals, and dormitories and classrooms of community colleges or universities.  In another important change, however, SB 59 explicitly prohibits gun owners from being able to openly carry in those areas.  SB 59 does permit private property owners and universities to prohibit an individual from carrying a pistol, including a pistol that is openly carried, on the premises, provided they install signage to that effect.  There is no similar provision for public property, in part, because Section 2 of Michigan's  Firearms and Ammunition Act (1990 PA 319, as amended, MCL 123.1102) prohibits a local unit of government from regulating the possession of firearms.


City and Village Election Dates

Senate Bill 810 would, if signed by the Governor, amend Michigan Election law to require a village regular election to be held at the general November election, eliminating Village elections in September.  SB 810 also allow a city that held elections annually, or in the odd year in November, to change its regular election schedule to the even year general and primary elections.  SB 810 made no amendments to spring elections, evidencing the legislature's continued efforts to recognize February, May, August and November elections as the only available election times.

In a last minute amendment, the legislature added controversial language requiring voters to affirm their citizenship prior to receiving the ballot.  Governor Snyder vetoed a bill containing similar language earlier in the year.  The Governor has not indicated whether or not he will sign the legislation.

Recall Elections

House Bill 6060 amends Michigan Election law to create new requirements and restrictions for recall elections.  It requires recall petitions to state each reason for the recall factually, in addition to clearly as is required currently.  Under HB 6060, a board of county election commissioners must determine whether a recall petition is factual before certifying it for circulation.  Determinations may be appealed to the circuit court.  If any reason given for a recall is not factual, or sufficiently clear, the entire petition shall not be certified.  Recall elections for county commissioner or township, city, village, or school officials must be held in May, or November.  House Bill 6063 limits the time frames during which recalls may be sought.  If an official serves a two year term, a recall petition may not be certified for circulation during an official's first or last six months of a term.  If an official's term is more than two years, a recall petition may not be certified for circulation during the first, or last year.

Freedom of Information Act

In Nichols Law Firm v City of Lansing , (2012 Mich. App. LEXIS 2321, No. 310395, Nov. 20, 2012, unpublished), the Michigan Court of Appeals considered a trial court's award of attorney fees and imposition of a punitive fine of $500 for an alleged violation of the FOIA.  Plaintiff submitted a lengthy FOIA request regarding its client's drunk driving case.  The City denied a number of those requests as overly broad, which resulted in the plaintiff filing suit.  The trial court ruled that the City violated the FOIA because these requests concerned one incident, with one particular police officer and were not overly broad, and that the City could have produced the information relatively easily.  The trial court determined that while the FOIA was violated, the City did not do "anything wrong except to be too busy to pay attention" to the FOIA.  It imposed a $500 fine on the City and awarded the plaintiff attorney's fees.  On appeal, the Court of Appeals determined the City did in fact violate the FOIA because plaintiff's requests were not overly broad, but reversed the award of attorney's fees.  In so doing, the Court of Appeals determined that even though the City violated the FOIA, the plaintiff was not in fact a "prevailing party" in the lawsuit, because the trial court never ordered the City to produce the requested information.  The plaintiff provided no evidence that the lawsuit caused the City to produce information, nor did it request that the court compel production.  Similarly, the Court of Appeals reversed the $500 fine because it found nothing arbitrary or capricious about the City's actions.

Municipal Lighting Authority

House Bill 5688 creates the "Municipal Lighting Authority Act" to permit a "local government" to incorporate a lighting authority to finance certain street lighting improvement and maintenance projects.  The bill defines "local government" to be a city with a population of 600,000 or more.  Currently, the City of Detroit is the only city meeting that definition.  The authority is governed by a five member board.  The board must consist of two residents appointed by the Mayor, two residents appointed by the City Council, and the final member appointed by the City Council from a list of three persons selected by the Mayor.  The board must consist of at least one attorney, one professional engineer, and one certified public accountant or financial expert.  Under HB 5688, the authority is required to prepare and present to the City Council a  plan for the repair and maintenance of a system of street lighting in the City.  To accomplish this, the authority is empowered to issue bonds to finance street lighting repairs and maintenance.  HB 5688 is tie-barred to other legislation pledging utility taxes to finance streetlight repairs and police services, and freezing Detroit's current income tax rates.

Medical Marihuana

The legislature made a number of changes regarding the Michigan Medical Marihuana Act (MMMA).  House Bill 4851 provides a definition of "bona fide physician-patient relationship" to include a requirement that the physician examine the patient in person.  Additionally, the bill also clarifies the regulations on marihuana plants grown outdoors, within an "enclosed, locked facility."  HB 4851 provides that marihuana is in an enclosed, locked facility outdoors if it is not visible to the naked eye from adjacent property, and is in a stationary structure enclosed on all sides by fencing, wooden slats or other similar material.  It also requires those facilities to be attached to the ground.  HB 4851 also clarifies the legality of temporarily transporting marihuana plants in vehicles, from one location to another with the intent to permanently retain those plants at the second location.  Temporary transport is permitted provided individuals inside the vehicle are either the patient, or the primary caregiver.  There is no limit to the number of plants permitted in transport in the legislation.

Municipal Tort Liability

Municipal liability for private party sewage discharge

The Michigan Supreme Court, in Dep't of Environmental Quality v Worth (491 Mich 227 (2012)), ruled that a municipality may be held responsible under the Natural Resources and Environmental Protection Act (NREPA) for raw sewage discharged into state waters by private citizens within the municipality's borders. The Supreme Court noted that NREPA creates a presumption that the discharge of raw sewage was injurious and specifically identified the municipality in which the discharge originated as a responsible party.  The Court ruled that "there was no reason why a township, as a 'municipality,' could not be deemed a responsible entity under the language of [NREPA] when a discharge occurred within its borders."


In Brown v Summerfield Township , (2012 Mich App LEXIS 1664, No. 304979, Aug. 23, 2012, unpublished), the Michigan Court of Appeals affirmed a circuit court ruling that a local ordinance regulating the keeping of horses on certain private properties was not preempted by the Michigan Right to Farm Act.  The court noted that the Right to Farm Act preempts local ordinances that attempt to regulate commercial farming operations, and the plaintiff in Brown kept horses for a private, noncommercial use.

Open Meetings Act (OMA)

OMA Does Not Require that Members of Public Body Be Permitted to Speak at Public Comment Segment

In Higgs v Delta College Bd of Trustees , (2012 Mich App LEXIS 677, No. 302767, Apr. 17, 2012, unpublished), Plaintiff, a member of the Delta College Board of Trustees, filed suit alleging a violation of the OMA because he was interrupted during the public comment portion of a meeting.  The Court of Appeals affirmed the trial court's ruling that despite the interruption, Plaintiff still had an opportunity to speak.  Additionally, the court refused to grant Plaintiff a declaratory ruling that he has a right to address the body at the public comment section under the OMA even though he is a member of that public body.  The court noted that the purpose of the OMA is not achieved when individual members of the public body are permitted to present personal disagreements with a decision during the public comment portion of a meeting.

Design Contracts

House Bill 5466 amends state law to invalidate certain indemnification provisions in construction contracts.  Specifically, HB 5466 prohibits a "public entity" from requiring a Michigan licensed architect, professional engineer, professional surveyor, landscape architect, or contractor to defend the public entity or any other party from claims, or to assume any liability or indemnify that entity for any amount greater than the degree of fault in causing harm or damage.  This prohibition applies to contracts for the design of a building, structure, appurtenance, appliance, highway, road, bridge, water or sewer line or other infrastructure or improvement to real property, or contracts for construction, alteration, repair or maintenance of such improvements.  A "public entity" is defined under the act as the state and its agencies, any public body corporate within the state, and all cities, villages, townships, counties, school districts, intermediate school districts, authorities and community and junior colleges.  The legislation would not affect the application of governmental immunity under 1964 PA 170.  HB 5466 takes effect on March 1, 2013.

Regional Transit Authority

Senate Bill 909 creates the "Regional Transit Authority Act."  It permits the creation of a Regional Transit Authority in Wayne, Oakland, Macomb, and Washtenaw counties.  The new authority will be governed by a ten-member board, with two representatives from each of the participating counties, one representative from the city of Detroit, and one non-voting member appointed by the governor.  The authority created is required to adopt a public transit plan for the region.  The authority is also empowered to develop and operate a "rolling rapid transit system" or a light rail type of transit system along certain corridors.  Those corridors include: Woodward Corridor from downtown Detroit to downtown Birmingham, Gratiot Corridor from downtown Detroit to downtown Mt. Clemens; a northern cross-county line from Troy to Mt. Clemens; and, a western cross-county line from downtown Detroit to Ann Arbor.  The authority is permitted to issue revenue bonds to finance creation and operation of the transit system. Under different legislation (Senate Bill 912) the authority and subsequent transit system are made exempt from local zoning regulations.

If you have any questions or concerns regarding any of the above, please contact your Clark Hill municipal attorney.


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