2017-2018 planning and zoning court case summaries now ready

Kurt Schindler, Michigan State University Extension - May 22, 2018

The annual May 2018 summary of land use court cases is prepared and available to the public.

Court cases and legal opinions that focused on land use issues during the past 12 months included dark store tax assessment, regulatory takings considering the whole parcel, limitations on ability to regulate farms, medical marijuana, inability to require underground electric lines, regulation of religious activities, Freedom of Information Act and Open Meetings Act.

Michigan State University Extension has recently completed its annual compilation of planning and zoning court cases and attorney general opinions. The summary entitled “Summary of Planning and Zoning Court Decisions, 2018” covers court cases from May 1, 2017 to April 30, 2018 and is now available to view.

The Michigan Supreme Court let stand a Court of Appeals decision in Menard, Inc. v City of Escanaba. The decision was that the Michigan Tax Tribunal made an error of law when using deed-restricted comparables to determine true cash value of a big box store, resulting in much lower tax liability.

The United States Supreme Court ruled that one has to evaluate the use of the entire parcel of land, not just what was sold, or a part proposed for development, when determining if a regulatory taking occurred. The case Murr v. Wisconsin was about development on a parcel that consisted of two adjacent lots. The state did not approve a variance to allow sale of one of the lots because it would have created a parcel that was too small. To determine if a taking occurred, the courts must look at the impact of the entire parcel, not just the one lot.

The Michigan Attorney General issued an opinion indicating local government cannot regulate farms when the subject of the regulation is covered in the Right to Farm Act or generally accepted agricultural and management practices (GAAMPs). The question put to the attorney general were about specifics, thus the opinion addresses those things, not the entire list of what may not be regulated by local government:

limit the number of livestock per acre
require a site plan be submitted to and approved by the local zoning administrator
limit manure application to fields in which the farmer owns or holds a seven-year lease
specify manure application methods
require a comprehensive nutrient management plan be submitted to and approved by the local unit of government.

In Charter Township of York v. Miller the Michigan Court of Appeals ruled that zoning prohibiting outdoor growing of medical marijuana cannot be done, as such regulation is preempted by the Michigan Medical Marihuana Act.

In a similar restriction of local regulatory authority the Michigan Supreme Court issued an order in Charter Township of Oshtemo v. Michigan Electric Transmission Company LLC limiting a regulation to require underground electric lines within or near right-of-ways.

On the other side of the coin the U.S. Court of Appeals, Sixth Circuit, found the denial of a special use permit for a church school was not a substantial burden under the United States Religious Land Use & Institutionalized Persons Act (RLUIPA). In the case Livinstong Christian Schools v. Genoa Charter Township the court found there were alternative properties where the school could be located and further “the unavailability of other land in the particular jurisdiction ‘will not by itself support a substantial burden claim.’” The record did “not indicate that traveling the roughly dozen miles to Pinckney would be unduly burdensome to students” or show that “religious beliefs required it to locate within Genoa Township specifically.”

The Michigan Attorney General issued an opinion distinguishing between “granting a Freedom of Information Act (FOIA) request” and the time taken to actually produce the requested documents. The five business days applies only to the pronouncement that the FOIA request is/will be granted in part or in whole.

In an Open Meetings Act (OMA) case, Lockwood v. Township of Ellington the Court of Appeals ruled appointments to the township planning commission made at a township board meeting that did not comply with the OMA, and not subsequently ratified, were void. Thus a later township board, after an election with different township board members, could appoint different persons to the planning commission.

Other unpublished cases dealt with restrictions on zoning authority (oil and gas wells in a city, sexually oriented businesses and fireworks), land divisions, substantive due process test on a government regulation, due process, special use and site plan, nonconforming uses, open meeting act, building inspector, fees and junk ordinance enforcement.

For regular updates on planning and zoning related court cases, attorney general opinions, legislation, research and training opportunities, MSU Extension provides an email list-serve for professional planners, zoning administrators, municipal attorneys and others. For information about that service, contact the author.

MSU Extension articles on previous year court case summaries:

This website includes the summaries of court cases for 2003 to April 2018.

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