The uncompromising zoning administrator is not a bad guy

Zoning administrators are sticklers for rules, and may seem uncompromising. They have a job to do, and not doing their job can result in serious personal liability for a zoning administrator.

It is a common complaint: “Gosh, it was only a distance of 1 foot, why didn’t the zoning administrator cut me some slack?” or, “He is such a stickler for following the rules.”

On the other side, the zoning administrator may be mumbling, “This is such a minor thing, if only I could look the other way,” or “I do not even agree with this regulation, but I have to enforce it.”

So why do these stories circulate? Why are officials so uncompromising? Or from the other perspective, why should a government official, like a zoning administrator, behave in that manner?

One major reason why comes down to maintaining governmental immunity. The idea behind governmental immunity is to protect the individual person –who happens to work, volunteer, or is elected in government—from personal liability. When one is acting on behalf of a local government, they are not supposed to be acting for themselves. They should not be held personally liable for those actions.

Remember, majority rules in government. People who work, volunteer or are elected in government may not agree with the majority, but the majority is their “boss.”

The presumption is that as long as the government is acting in good faith to carry out its responsibilities consistent with the law then those actions are immune from liability. The “government” also includes its employees, and volunteer, appointed and elected officials. Responsibilities consistent with the law means the actions must be a proper government function and not violating anyone’s constitutionally protected rights. And in good faith means the person’s motivation and belief was they were doing the right thing.

But everything a government does is not protected by governmental immunity. In Michigan there are statutory exceptions to governmental immunity. Examples include some instances of sidewalk trip and fall and vehicle damage due to road defects. But the statutory exceptions do not generally apply to zoning administration.

Chart -- Government Immunity vs. DiscretionThe amount of government immunity is also not equal for everyone in government. Figure 1 at right illustrates that the legislative body (elected officials: city or village council, township board of trustees, county board of commissioners) have the most immunity and have the most discretion in decision making. Legislative bodies set policy and adopt ordinances, an area where discretion is often used.

Volunteers and appointed officials on boards, such as planning commission and zoning board of appeals members, have less discretion and less immunity. These boards act in an advisory and administrative capacity. They have more discretion than the zoning administrator. They are generally safe as long as acting within their scope of authority and acting in good faith. If a legislative body is performing administrative functions, such as acting as the planning commission, or making final approval of special use permits or site plans, then the legislative body’s immunity is the same as the planning commission’s and zoning board of appeals’.

A government employee, such as the zoning administrator, has the least discretion. Sometimes the zoning administrator has no discretion. Also the zoning administrator has the least amount of governmental immunity, and if he or she is in a contract position rather than an employee may not have any immunity.

A zoning administrator is ministerial. The function is to administer the zoning ordinance with limited or no discretionary authority. As long as the zoning administrator follows what the zoning ordinance requires there is immunity protection. If the zoning administrator does not adhere to the strict application of the zoning ordinance then he or she is not “consistent with the law” and may no longer have immunity.

So the zoning administrator should not overlook the distance of a 1-foot violation. If he or she does and someone else gets upset there might be serious consequences.

Besides, if still upset about not being cut any slack on the 1-foot violation there is official protocol to follow. A person can always appeal the decision to the zoning board of appeals. It has more discretion and more immunity to cover that additional discretion. Michigan law makes it relatively easy and inexpensive to pursue such an appeal. Michigan State University Extension has resources to help prepare and understand the appeals process.

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