Sequence of government permits is important

There is best order to obtain permits for development. The order is dictated by statute and influenced by best practices.

An example of a site, or plot, plan prepared by an eight-year-old for mom for a zoning permit application. This site plan is framed and on the office wall in the municipality zoning administrators office.
An example of a site, or plot, plan prepared by an eight-year-old for mom for a zoning permit application. This site plan is framed and on the office wall in the municipality zoning administrators office. Photo by Kurt H. Schindler, MSU Extension.

When seeking permit approvals for a new project, or development, the order one obtains permits can make a big difference. There is a particular order to obtain permits. With some permits the order is required in statute, with some permits the order is considered best practice.

Generally the order is as follows:

1. First, obtain permits for environmental, health, and transportation issues. Not all these permits are applicable for each project.  The state publishes a checklist may help determine some of which are applicable.

2A.  Apply for the zoning permit, using the forms above. If applying for a Planned Unit Development (PUD), Special Use, zoning might be done concurrently with permits listed in number one. Or it might be done in two parts – (1) obtaining the zoning permit conditioned on site plan approval and (2) then getting site plan approval after receiving all the permits required in number one.

2B.  Zoning site plan approval. Getting site plan approval after receiving all the permits required in number one is considered planning and zoning best practice.

3. Lastly, obtain construction code permits (after securing the zoning permit(s) and site plan approval. Construction code permits are the building permit, plumbing permit, mechanical permit, and electrical permit.  Michigan law gives the building inspector the authority to withhold a building permit if “other applicable laws and ordinances” (those listed in 1, 2A, and 2B, above) are not yet found to be complied with. Conversely the Stille-Derosset-Hale Single State Construction Code Act requires “If the [building permit] application conforms to this act, the code, and the requirements of other applicable laws and ordinances, the enforcing agency shall approve the application and issue a building permit to the applicant” (MCL 125.1511(1)).

There have been local governments which have gotten upset because various agencies issued permits listed in number one, above, before zoning.  Presumably this is because it makes it harder for a local planning commission to deny a permit or modify a site plan. Politically that may be true but is not a good reason for doing zoning first.  Also a state agency may like to avoid problems with getting a state permit when a project might not obtain local zoning approval. Finally someone may want to get zoning first because the other permit(s) are more costly to obtain. But requiring zoning review first does a huge disservice to the applicant which can end up costing someone more time, money, and maybe even going through the zoning approval process twice.  

That is why best practice is to have zoning reviews come after those other permits (number one, above). Just because a project has approval for part of a proposed project (septic tank, DEQ permit, etc.) in no way obligates a local government to approve a zoning permit. If the project does not comply with the zoning ordinance the zoning permit can and should be denied.  For example, just because one can install a septic and drain field does not mean the land use is okay. When proposing a project one has to comply and receive approval for all applicable permits. Getting approval for some permits is not a reason for the issuing of the remaining permits.

This order of permits, and concurrent reviews (below) are best practices for zoning administration and is not new. This is what is taught in:

As a result, it is common for local zoning ordinances in Michigan municipalities to require all other permits to be obtained or concurrently approved prior to approval of a zoning site plan. And requiring zoning permit and site plan approval prior to any state construction code permits are issued.  

There are many reasons for this, the main one being that a zoning site plan approval is a drawing which becomes a legal document which cannot easily be changed or revised.

For example if zoning site plan is done first, and then in the process of DEQ approval, a change in the layout or juxtaposition of elements in the site plan is required, that usually would be a major change requiring the applicant to repeat the zoning site plan review process and approval all over again. That is done at applicant’s cost that can be up to a couple thousand dollars. In some rarer cases, when the change is non-substantive, there may be a shorter revision process.  Cost is not the only factor. The applicant is also forced to spend more time going through the process all over again. So the result of getting the zoning permit first introduces more bureaucracy for a property owner, or developer.

Also, having those other permits done before site plan review actually makes local government’s job easier. There is no longer a debate about where the driveway has to be located, what area works for on-site septic, if or where there are wetlands, groundwater issues, and so on. The local community knows the site plan – drawn in compliance with the requirements of those other permits – will comply with those other laws. All those issues and headaches are off the table for the local planning commission.

A state agency, and sometimes the property owner, may request zoning approval first simply because the state permit is more onerous or costly to obtain. The solution to this type of request is to have concurrent permit approval.  What is also taught as best practice is the zoning permit administrative process should allow the applicant to do zoning approval as two steps.  Often the decision to get zoning approval all at once, or in two steps is the applicant’s choice.

The first step is to obtain zoning permit approval contingent on site plan approval. The second step is to submit and then receive site plan approval.  The other permits (listed in number one, above) would be processed between these two zoning administrative steps.  It should also be noted that the first step – permit approval – is a provisional approval that is contingent on approval of a site plan.

The second step goes into the detail of the actual design with drawings for the site plan. What that site plan drawing shows becomes what is approved and what should actually be built on the ground.  If it is not what is built, that is violation of the zoning permit. 

The two step process allows for both a tentative zoning approval prior to other permits, but final zoning approval after other permits are issued.  It also allows for concurrent permit review and approval – including local officials and other agencies coordinating together on a development project.

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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