A zoning moratorium should only be done with caution
A local government might adopt a moratorium to prevent development until rules are established. This is not without legal risk. Do so with caution and make sure the municipal attorney is directly involved.
Local units of government sometimes adopt moratoria to prevent anyone from developing or building something until regulations concerning the activity are developed and adopted. This has occurred in Michigan with medical marijuana dispensaries, signs and billboards, scrapyards, and wind and solar energy generation systems, to name a few.
In Michigan, local governments do not have the authority to do anything unless the state legislature delegates that authority. Cities and villages have the broadest delegation of authority, townships are in the middle, and counties have the least. With authority often comes restrictions – such as having to follow specific processes or not being able to regulate specific land uses. For other Michigan State University Extension articles on limitations of authority see: New requirements for local government regulation of wireless communication | Can local governments regulate oil and gas development?.
The problem in Michigan is that there is no statutory authority for a local government to adopt a moratorium in the first place. This is a problem because there is no specific procedure or process for enacting a moratorium – leading to questions about how it is done.
On the other side of the coin, the U.S. Supreme Court has recognized the legitimate use of moratoria (Tahoe-Sierra, U.S. (2002)), and there are appellate level court cases in Michigan that provide support for the idea that moratoria can be done (e.g. Central Advertising Co. v St. Joseph Township 125 Mich App 548, 554-555 (1983).) In one case, “a moratorium on the issuance of building permits in a particular district of the city for a reasonably limited time” was not voided by the court (Heritage Hill v Grand Rapids, 48 Mich App 765, 768 (1973)). Nor did the Michigan Court of Appeals find it to be legally offensive for a township to declare a “brief moratorium on all sewer connections” (BPA II v Harrison Township, 73 Mich App 731, 733-734 (1977)).
While courts have not struck down moratoria in Michigan, there is no appellate court that has upheld a moratorium in Michigan for longer than six months. Moratoria are supposed to be short, tied to a direct threat to the public health, safety and general welfare, given a specific start and end date, and then removed at the end of that date.
An old joke suggests a moratorium should always be shorter than the amount of time it takes for someone to file suit and have the case come up on the court’s docket. The goal being the moratorium should always be shorter than the adjudication of the lawsuit.
The serious and important point is that a local government should never enact a moratorium without the direct involvement of the government’s corporate attorney, who should be experienced in municipal and land use law. This is particularly important because there may be question over the government’s authority to do so. There may also be question on how it is done. Normally, one would find such direction in enabling legislation, but this is lacking in Michigan. Therefore, it is important that a moratorium is enacted in a way that the attorney is comfortable with, because he or she will be the one to stand to defend the local government if challenged.
Under the doctrine of legislative equivalency, an ordinance can only be amended/suspended by another ordinance, meaning a moratorium can only be enacted by adoption of an ordinance. While some Michigan communities have attempted to enact a moratorium by resolution, it is well-established case law in Michigan that an ordinance cannot be suspended by resolution as shown in these examples.
- City of Saginaw v Consumers' Power Co., 213 Mich 460, 469 (1921) ("[A]n ordinance may not be repealed or amended without action of equal dignity to that required in its enactment.")
- Lee v City of Taylor, 63 Mich App 221, 223 (1975) ("It is settled that a municipal corporation may only repeal an ordinance by an act of equal dignity and formality.")
- McCarthy v Village of Marcellus, 32 Mich App 679, 688-89 (1971) ("An ordinance or resolution cannot be amended, repealed, or suspended by another act by a council of less dignity than the ordinance or resolution itself.")
- Lorencz v Brookfield Twp., Mich App (No. 319235, Apr. 28, 2015, Unpublished) ("[A]n ordinance may only be repealed by an act of equal dignity, which requires the township to repeal by ordinance and not resolution.")
It is important that the text of the moratorium ordinance include specific content on:
- The narrow subject to which the moratorium applies
- An explanation as to how the moratorium is addressing a direct and immediate threat to public health, safety and general welfare.
- Findings of fact that support the public health, safety and welfare threat.
- A specific starting date.
- A specific ending date.
- Anything else the local government’s attorney believes is important to convey.
For additional procedural considerations with respect to enactment of a moratorium, see Caution: Zoning moratorium ahead.