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With Openness Comes Accountability; Challenging a Rezoning Decision under the Open Meetings Act

Written by Adel Nucho on July 22, 2021 Category: Civil Litigation, Land Use and Zoning, Michigan Land Use and Zoning

It goes without saying that a neighboring property’s zoning classification can have a negative impact on the value of, and your ability to, enjoy your own property.

If you recently found out that a property close to your home was the subject of a rezoning approval (e.g., from residential to heavy industrial or commercial), there are several things you may do to challenge the decision.  You can, for example, file a lawsuit challenging the procedures taken by the government prior to the rezoning approval.  If successful, a court has the authority to void/set aside the approval decision.

Below are a few questions and answers designed to give you a broad overview of the rezoning process and a challenge available to you under the Open Meetings Act (OMA).

  1. What is rezoning?

A “rezoning” of a parcel is essentially an amendment to the already-established boundaries of a zoning district as shown on the applicable zoning map of a local government unit—like a city, village, township, or county.  In other words, it is the act of changing the zoning of a particular property or group of properties from one zoning classification to another.

Common zoning classifications include but are not limited to single- and multi-family residential districts, commercial or business districts, heavy or light industrial, and agricultural.

  1. What is the planning commission’s role in the rezoning process and who decides whether to approve or deny a rezoning application?

Rezoning is not a one-step process.

Like the adoption of a new zoning ordinance, the process begins with the planning commission.  After holding at least one public hearing, the planning commission must transmit a summary of comments received at the hearing and its proposed zoning ordinance, including any zoning maps and recommendations, to the “legislative body” of the local unit of government.

  1. Who is the legislative body where I live?

The “legislative body” is the board of trustees in the case of a township, the council or other similar elected body in a city or village, or the board of commissioners in a county (if the area within the subject county is neither incorporated nor subject to a township zoning ordinance).

By way of example, if the subject property is within an incorporated area of a county, like the City of Rochester Hills in Oakland County, Michigan, then a property owner or person/entity with interest in property may submit a rezoning application to rezone a parcel from R-1 (one-family residential district) to I (industrial district).

After the City’s Planning Commission considers the rezoning application and makes a recommendation, the Rochester Hills’ City Council will ultimately decide whether to approve or deny the request.

  1. Is the planning commission required to hold a public hearing? And must the commission notify members of the public that a rezoning application is being considered?

The short answer to both questions is yes.

The Michigan Zoning Enabling Act (MZEA), a law which grants local governments the authority to regulate land development and use through zoning, requires the planning commission to hold at least one public hearing on the proposed rezoning and must give notice of a such meeting.  Significantly, MZEA expressly provides that the planning commission is subject to the Open Meetings Act (OMA).

The OMA, which was enacted by the Michigan Legislature in 1976, requires meetings of a public body to occur in the open.  The Michigan Court of Appeals recently reiterated that with “openness” comes “accountability”; and without timely and proper notice to members of the public the purpose of the OMA would be frustrated.

  1. Who is entitled to notice and what must be included in the notice?

The MZEA requires that notice be published in a newspaper of general circulation in the local government unit (i.e., the city, village, township, or county) at least 15 days before the date of the public hearing.  Moreover, everyone who lives or owns property that is within 300 feet of the property being rezoned must given notice.

Notice sent to property owners/occupants within 300 feet and published in the newspaper must do all the following:

  1. Tell you that a rezoning application has been submitted,
  2. Indicate which property is the subject of the request (like its street address if one exists),
  3. Indicate when and where the rezoning application will be considered, and
  4. Indicate when and where written comments will be received concerning the request.
  1. Who can challenge a rezoning decision in court?

The Michigan Supreme Court made clear in Randall v. Board of Trustees of Meridian Township, Ingham County that courts have the authority to review the validity of a rezoning once it is adopted.

As a general rule, property owners do not have a vested right to keep an adjacent property in its present zoning classification.  Nonetheless, the Court in Randall stated that adjacent property owners have an interest in the decision because of the “adverse effects” it had on their properties.  Because of the negative impact a rezoning can have on neighboring properties (i.e., the 300-foot rule), the owners can go to court and challenge the “irregularities in the proceedings” leading up to the decision.

  1. Must the planning commission or legislative body provide notice of the meeting on the local government unit’s website?

While the MZEA does not expressly require notice to be published on the internet, the OMA does in some cases.  Specifically, Section 3a(4) provides in relevant part the following:

for a rescheduled regular or a special meeting of a public body, a public notice stating the date, time, and place of the meeting shall be posted at least 18 hours before the meeting in a prominent and conspicuous place at both the public body’s principal office and, if the public body directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, on a portion of the website that is fully accessible to the public. The public notice on the website shall be included on either the homepage or on a separate webpage dedicated to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website’s homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings.

In the unpublished opinion of Spalding v. Swiacki (click here to view), the Michigan Court of Appeals decided a case decided on July 8, 2021 dealing with the above-quoted section of the OMA.

The dispute had to do with the decision of the Armada Township clerk, treasurer, and two trustees on the Township Board to proceed with a meeting despite the failure to post timely notice of the meeting on the Township’s website.  Specifically, the notice was posted under 8 hours prior to the meeting, as opposed to the required 18 hours.

Accordingly, the Court agreed with the trial court that the Township failed to strictly comply with the OMA requirements.

  1. What must a plaintiff show to invalidate a rezoning decision based on notice deficiencies?

The Court reiterated in Spalding that among the three types of relief available is the right to seek to invalidate a decision of the public body made in violation of the OMA.

A plaintiff must show that the public body violated the public-notice provisions of the OMA.  However, a court will not invalidate the decision if the notice was in substantial compliance with law.  Moreover, the plaintiff must show “that the noncompliance or failure has impaired the rights of the public” under the OMA.

The explicit “substantial compliance” measure for public-notice violations, coupled with the need to show that the rights of the public were actually impaired, set a high bar for invalidating a public body’s decision based solely on a defect in notice, the court emphasized.

Therefore, in addition to deficiencies in notice, a plaintiff will likely have to point to other procedural defects in the rezoning decision-making process

  1. How long does a property owner have to bring a claim under the OMA?

Seeking legal counsel immediately after a rezoning application is approved is highly advised—given the very short statute of limitations.  Specifically, a lawsuit seeking to invalidate a decision for a violation of the OMA is 60 days, and a shorter period of 30 days applies if the decision involves the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other indebtedness, the approval of contracts, or the submission of a borrowing proposal to the electors.

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