Document every step in zoning ordinance adoption

It is important to document, in writing, every step when adopting or amending a zoning ordinance. Do not trust memory, or the ability to go back at a later date to find needed documentation.

Photo by Kurt Schindler
Photo by Kurt Schindler

The old adage “create a paper trail” is very true and important to document zoning ordinance adoption or amendments.

Adoption of a zoning ordinance, or an amendment to a zoning ordinance has very specific steps that must be done. It is also important for a municipal or county government to document that each step was taken, in proper order. The local government has to be able to show it followed the due process as required in the Michigan Zoning Enabling Act (MZEA).

Often, in Citizen Planner classes, it is taught one of the ways to hand local government’s opposition – on a silver platter – all the ammunition they need to defeat a zoning decision is to fail to follow the statute-required steps to adopt a zoning ordinance or amendment to an existing zoning ordinance.

Not only is it important to follow each of those steps, it is important to have the documentation showing it was done. People that were around when the zoning ordinance or amendment was adopted may not be around when it is challenged. So do not rely on people’s memory. The key is to have a complete file that documents the steps taken. That file should be duplicated and kept in two separate locations. One in the local government’s offices, the second copy, for example, might be kept at the municipal attorney’s office.

Michigan State University Extension published Land Use Series Check Lists of the steps required for various zoning administrative and legislative functions. Those Check Lists also provide an indication of the documentation that should be kept for each zoning amendment, and for each zoning ordinance adoption.

These Check Lists are:

There are additional Check Lists for various zoning administrative functions also (Processing a Zoning Special Use Permit (including some PUDs) in Michigan and Processing a Zoning Appeal and Variance in Michigan).

For adopting a new zoning ordinance, first document that the planning commission was properly created. So have in a file a copy of the legislative body (township board of trustees, village council, city council, county board of commissioners) minutes where the creation of the planning commission took place. It would be the minutes where the ordinance to create the planning commission was adopted. Also have a certified copy of the planning commission ordinance on file.

For a new zoning ordinance the Michigan Zoning Enabling Act requires the planning commission, in addition to the zoning ordinance, also have a procedure or policy for the administration of the zoning ordinance. A copy of that should also be in the file.

For new, or amendments keep correspondence from those that reviewed the proposed ordinance, such as the government’s attorney, professional planner, and others.

The MZEA requires a public hearing with certain notice requirements for both a new ordinance and amendments. The file should contain all of these items pertaining to the hearing:

  • Copy of notices of the hearing.
  • Affidavit the notices were sent out (signed by who did that task).
  • A list of whom the notices were sent to.
  • Affidavit of publication from a newspaper with a paid circulation in that is commonly distributed within the local government.
  • The minutes of the public hearing. (Some would say it should be a certified copy of the minutes.)

If it is a township zoning ordinance or amendment then the file should contain the letter from the township planning commission to the county planning commission. This would be the letter that is sent with a copy of the proposed zoning sent to the county for review. Some county planning commissions also expect a letter from the township’s attorney about the propriety of the adoption process and ordinance itself. If that is the case the file should have a copy of that attorney’s letter. The file should also have a copy of the county’s response, or review, of the township zoning ordinance or amendment.

Next should be a copy of the minutes which contain the motion by the local government planning commission to recommend the legislative body adopt, or not adopt, the zoning ordinance or amendment. This should be accompanied by a copy of the actual proposed zoning ordinance and map, or zoning amendment and zoning map if part of the amendment.

The file should also contain a copy of the minutes of the legislative body meeting(s) where the planning commission recommendation and zoning is discussed, and acted upon. (The legislative body may choose to hold its own additional public hearing on the zoning proposal. If they do then the file should contain all of these items pertaining to the hearing – the same things listed for the planning commission hearing above.) An interested property owner may also request a hearing. This is different than a public hearing. If that happens the file should contain the landowner’s request, notice of that hearing, affidavit the notice was sent to the property owner.

The legislative body might request changes to the recommended zoning ordinance or amendment. If that happens the file should contain a copy of the legislative body’s request and copies of the minutes reflecting the planning commission disposition of the request.

If it is a city or village zoning amendment someone might file a protest petition (abutter’s challenge) concerning the proposed zoning amendment. If that happens the file should contain a copy of the protest petition, the clerk’s finding on the petition signatures.

The file should contain the copy of the legislative body’s minutes where the motion to adopt (or not) the proposed zoning is made. If that is done, then the following should be on file:

  • Copy of the adopted ordinance, signed, certified. (Or, if an amendment, a copy of the ordinance and updated copy of the entire ordinance.)
  • Copy of delivery of the notice of ordinance adoption sent to airport(s) managers (affidavit)
  • If a township, a copy of the delivery of the ordinance being filed with the county clerk.
  • A copy of the delivery of the ordinance to the county planning commission, if one exists and they requested copies be sent to them.
  • Affidavit of publication of the notice of adoption from a newspaper with a paid circulation in that is commonly distributed within the local government.

If a township or county someone might file with the clerk a notice of intent to petition to bring all or part of the zoning ordinance to a vote. If that happens then the file should contain the notice of intent, petition or documentation by the clerk saying the petition was not received in time, clerk’s determination on the petition, and a copy of the election results.

Finally the file should include a statement of the effective date of the ordinance.

Those in MSU Extension that focus on land use provide various training programs on planning and zoning, which are available to be presented in your county. Contact your local land use educator for more information.

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