Joint zoning board of appeals can be done

The Michigan Municipal Joint Planning Act allows for joint planning commissions but overlooks joint zoning board of appeals. It can still be done but takes considerable finesse to accomplish.

A major oversight in Michigan Legislation fails to accommodate the creation of a joint zoning board of appeals in conjunction with a joint zoning ordinance. This creates special problems and some legal gymnastics for adopting a single zoning ordinance for communities in a joint planning commission.

A joint planning commission is where any two or more municipal governments, city, village or township, join together to create a single planning commission. Often, this means one master plan for all the participating governments and one zoning ordinance for all the participating governments.

A member of the Michigan Association of Planning (MAP) said the organization tried to get language in the Joint Planning Act to address the issue of appeals boards in more detail. But it did not happen. However, they did get MCL 125.137(4) in the Joint Municipal Planning Act. It says, in part, “The participating municipalities…may adopt a joint zoning ordinance…and provides for a joint zoning board of appeals.” He adds, there is of course a leap here to fill in where the two acts are silent, but MCL 125.137 may be enough. It is a discussion to have in detail with the local government’s municipal attorney that is experienced in municipal (planning and zoning) law.

But the problem is in the details and the specific requirements in the Michigan Zoning Enabling Act (MZEA).  Those requirements are found in MCL 1235.3601:

  • Only the legislative body can appoint members to the appeals board, while other attorneys suggest otherwise. This can be a problem with one appeals board spanning multiple municipalities. Who gets to appoint which members? The more conservative risk management approach is maybe the position that the power to appoint and remove appeals board members is exclusively a legislative power under MZEA because it may only be exercised by a “legislative body” (as defined in MZEA, a legislative body is composed of “elected” members). The Joint Planning Act only authorizes the “transfer of powers” (in Sec. 7) from a planning commission to a joint planning commission. It does not authorize the transfer of any powers of a legislative body, such as the power to appoint appeals board members.
  • The legislative body can only select members from the electors of the local unit of government residing within the zoning jurisdiction of that local unit of government. So no one municipal legislative body can appoint the entire joint zoning board of appeals.
  • The same to constraints apply to appointment of alternate members.
  • The MZEA requires one member of the appeals board to be a member of the planning commission for a township or county (this is optional in a city or village). In the case of a joint planning commission operating like a township planning commission, then one of the joint planning commission members will be a member of the appeals board.
  • The MZEA provides for the option that one member of the appeals board can be a member of the legislative body but, if done, cannot be chair of the appeals board.
  • The MZEA prohibits a member of the appeals board to be an employee or contractor of the legislative body. In the case of a joint planning commission one might also extend that prohibition to not allowing an appeals board member to be an employee or contractor of the joint planning commission.
  • Three year staggered terms are required.

While proving difficult, it is not an insurmountable issue to deal with. 

This became a major point of debate and struggle to find an equitable way to formulate a joint zoning board of appeals for a newly created 11-township joint planning commission. The joint planning commission did not want a huge appeals board. They wanted to equitably share the opportunity for each participating municipality to have their representative on the appeals board.

After much discussion, their solution was to have an appeals board consisting of 15 members and two alternates. The first four members and two alternate members are nominated by the joint planning commission and sent to the respective legislative body for where the nominee resides, for appointment by that legislative body. For these members, no more than one can be a member from the same participating municipality. The first member is a member of the joint planning commission. The next three are at large.

The next 11 members are appointed by the participating government’s legislative body, and they must be a member of that legislative body. That makes an appeals board of 15 members. But for each appeal case, a panel of five sits to hear the appeal, with a quorum of three. That panel is the first four members and the one member from the legislative body for the government where the location of the appeal is from. Alternates can fill in for any absences due to illness, vacation, conflict of interest or vacancies.

There is a duty to rotate appointments of the first four members to different municipalities over time. There is even discussion about prohibiting appointment from the same municipality when an existing member is not reappointed.

The settled upon zoning ordinance language on appeals board membership is:

A. The Zoning Board of Appeals (Appeals Board) shall consist of four regular members plus a number of regular members equal to the number of participating municipalities and two alternate members, selected as provided in this Section, but all proceedings of the Appeals Board shall be conducted by a panel of five (5) members:

1. The first regular member shall be a member of the Commission, who shall serve during his or her term of office as a member of the Commission. The first member shall be nominated by the Commission and submitted to the legislative body of the participating municipality where the nominee resides for appointment.  If the legislative body board of the participating municipality rejects the nomination, the Commission shall nominate another of its members and submit that nomination to the legislative body of the participating municipality in which that nominee resides, and may repeat the process until a nominee is appointed as the first member of the Appeals Board.

2. The second, third, and fourth regular members and the first and second alternate members shall be nominated by the Commission and their names submitted to the legislative bodies of the participating municipality where each of the nominees resides for appointment.  If the legislative body of the participating municipality rejects a nomination, the Commission shall nominate another and submit that nomination to the legislative body of the participating municipality in which that nominee resides and may repeat the process until all three regular members and two alternate members are appointed to the Appeals Board.

3. The remaining regular members shall each be a member of the legislative body of each of the participating municipalities, but these members may not act as chairperson of the Appeals Board and shall not be a member of the Commission.  The regular members selected from the legislative bodies shall be nominated and appointed by the respective legislative bodies of each participating municipality.

B. A quorum of the Appeals Board shall consist of three members. Proceedings of the Appeals Board shall be conducted by a hearing panel consisting of the first four regular members and the fifth member shall be the member of the legislative body of the participating municipality in which the land involved in the proceeding is located (or alternates, as needed).  The affirmative vote of a majority of the hearing panel shall be required for the Appeals Board to decide any matter.

C. Appointments to fill vacancies and expiring terms for regular members and alternate members shall proceed in the same manner.

D. All regular members and alternate members shall meet the following qualifications to be appointed to the Appeals Board:

1. Each regular member and each alternate member shall be an elector of the participating municipality that appointed that member, but not an elected official of the legislative body of a participating municipality.

2. No one regular member or alternate member shall be an elector of a participating municipality in which another regular member or alternate member is also an elector so that no one participating municipality has more than one person at a time serving on the Appeals Board.  This restriction does not apply to regular members who are also members of the legislative body of a participating municipality.

3. No regular member or alternate member shall be an employee or contractor of any of the participating municipalities or the Commission.

E. Regular members and alternate members may be nominated and re-appointed to additional terms of office.

F. The Commission shall distribute the nominations for regular and alternate members, other than those also serving on the legislative bodies, among the participating municipalities so as to rotate membership on the Appeals Board among all of the participating municipalities over time and to provide for the advancement of alternate members to regular membership.

G. All terms of the regular and alternate members of the Appeals Board shall be for three years except that the first appointment of the second member shall be for one year, third member and first alternate member shall be for two years, the fourth member and second alternate member shall be for three years, and thereafter staggered so that to the extent possible, an equal number of members' terms expire each year.  Terms of the Commission member and the members from the legislative bodies of the participating municipalities shall be limited to his or her term as a member of that body. Vacancies shall be filled to serve the unexpired term of the member whose absence created the vacancy.

H. A member of the Appeals Board may be removed by the participating municipality that appointed that member for misfeasance, malfeasance or nonfeasance in office upon written charges and after public hearing.   A member shall disqualify himself or herself from a vote, discussion, and deliberation on a case when the member has a conflict of interest.  Failure of a member to disqualify himself or herself when a conflict of interest exists constitutes malfeasance in office.

I. It shall be the responsibility of the Commission to maintain records of the appointments made to the Appeals Board by the participating municipalities.

J. The Appeals Board shall have all the powers and duties regarding its affairs as allowed by law, including the adoption or rules of procedure. 

Those in Michigan State University 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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