The one question every municipality should ask itself before adopting an ordinance
There are many considerations when developing and adopting a new ordinance, but perhaps the most important of all is determining whether the municipality has the will to enforce the new zoning regulations.
For many Michigan municipalities, adopting a new ordinance or amending an existing ordinance can be a daunting task. Not only must they make sure that they are in compliance with the Michigan Zoning Enabling Act and other related laws, they must also develop legal language that achieves desired results while avoiding any unintended consequences. This process can often be a long, time-consuming and costly one, as municipalities may need to hire a planner or attorney to develop and review the proposed language. Additionally, enacting a new ordinance can sometimes lead to significant public input and debate during its development process, as proposed new ordinances often arise to address serious current issues in the municipality.
Even when not facing a current zoning “crisis”, the development of a new ordinance should be a deliberate, thought-out process that identifies community need, reviews both regulatory and non-regulatory options, gathers community feedback, reviews sample language, develops a draft document and identifies enforcement issues. This process is one most municipalities across Michigan are familiar with and regularly follow when adopting or amending an ordinance. However, there is a critical question many municipalities fail to ask themselves, and perhaps it is the most important question of all.
Do we have the will to enforce the ordinance we adopt?
A zoning ordinance is a law. It can be enforced and violators can be ticketed, fined, appear before the courts and, in extreme cases, end up in jail. However, a municipality has the responsibility and the duty to enforce its ordinances consistently and fairly. In not doing so, a municipality runs the risk of undermining the validity of their ordinance in court if they do not regularly enforce the ordinance or, worse yet, selectively enforce it. This issue can often be a particular problem in smaller, rural communities where everybody knows each other, and there appears to be a more relaxed approach to zoning enforcement.
A zoning administrator must conduct their duties according to the letter of the law. They must do what the zoning ordinance prescribes and do not have the latitude to deviate from the ordinance. The legislative body must support the zoning administrator in their consistent enforcement of the zoning ordinance. This support extends beyond initial enforcement by the zoning administrator to include financial and legal support if the township needs to go to court to enforce and defend its ordinance. If the municipality does not like some of the effects of a particular ordinance or is concerned about the costs of enforcing the ordinance, non-enforcement is not an option. The municipality should either review and amend the particular ordinance or remove it entirely. Prior to adopting new ordinance language, the municipality must have a serious discussion as to whether, once adopted, they have the will to fully support the consistent enforcement of the ordinance.
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