Posted by: Patricia Salkin | April 4, 2012

Michigan Court of Appeals Invalidates Special Use Permit Provisions in Zoning Ordinance as Noncompliant with the Michigan Zoning Enabling Act Which Requires Greater Specificity

The owners of a 70 acre parcel of land in an agricultural zone sought to construct a snowmobile, ATV and dirt bike track. Agricultural districts in Galien Township are subject to restrictions limiting the potential uses to farming, sale of products produced on the premises or mobile homes. Beyond these permitted uses, an applicant may apply for a special permit in order to, among other things, use the land as an “establishment for the conducting of commercial or industrial activities.” The owners applied for the special use permit and the zoning board granted it, although without making any finding of facts or conclusions of law. Several neighboring landowners appealed the decision and the parties stipulated that the board would hold a rehearing. At the rehearing, the board concluded that operation of the racetrack was a permissible commercial use for the land but applied some minor restrictions.

Again, the neighboring owners appealed and the circuit court held that the board had acted properly in granting the special use permit but remanded the case for further findings as to whether the racetrack would diminish the value of the surrounding land. The zoning board held that it did not and the neighbors appealed claiming first, that the zoning ordinance unlawfully delegates legislative power to the zoning board by allowing the board to issue special-use permits for “commercial or industrial” activities. The court held that it would not hear this claim because it was not raised in the original action in the circuit court.

They next claimed that the ordinance did not comply with the Michigan Zoning Enabling Act (MZEA). Although this issue was also unpreserved, the court held that they would consider it because it was a question of law for which they had all the facts necessary for its resolution, and that failure to address it could result in manifest injustice.

 A municipality has no inherent power to regulate land use through zoning legislation, but rather exercises zoning authority only to the limited extent authorized by the State Legislature. In this case, the act vesting zoning authority in municipalities was the MZEA. In addressing special-use permits, the MZEA states that an ordinance “shall specify the special land uses and activities eligible for approval.” The plaintiff claims that the zoning ordinances use of “commercial or industrial” activities falls short of the level of specificity that the MZEA requires.

The court, in interpreting the MZEA, determined that the statute can be read to mandate that a zoning ordinance must set forth in explicit, definite and detailed language both the customary uses and the specific actions and functions that are eligible for special use permits. Such specificity exists to encourage consistency within zoning districts and guards against an administrative body’s ability to haphazardly create small zones of inconsistent use within a larger district.

The court agreed with the plaintiff that the zoning ordinance did not meet the specificity required by the MZEA. The language in the ordinance was overly broad and made all actions pertaining to commerce, business, trade, manufacture or industry eligible for special-use status within the agricultural zone. To be valid under the MZEA, the ordinance would have had to specify the land uses and activities eligible for approval, it did not. As a result, the court vacated the special-use permit.

Whitman v. Galien Twp., 288 Mich. App. 672, 808 N.W.2d 9 (2010)

This opinion can be accessed at:

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