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Schindler's
Land Use Page
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(old web site) |
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Schindler's |
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| Land Use Questions and Answers on Planning |
| Have a question on land use, planning, and zoning? Please email it to: schindl9@msu.edu. Please tell me what county you are from. |
| A large part of Extension's service is to respond to email questions on land use, planning, and zoning. This page contains questions which are among the more common ones received. The questions and answers here are compiled from those I have received/responded to, and those I have participated in discussion with on the Michigan Society of Planning discussion board. | The materials here, are written for the specifics of planning and land use law in Michigan. | Please send your comments and suggestions to me, to make these pages a better service for you. Send to schindl9@msu.edu . |
| Topic | Question | Answer |
| Planning Commission Terms of Office |
Oops! I'm not sure how long the terms for planning
commissioners are. I can't find where it says how long the terms
are. Where do I find the length of terms? Do you know?
If so let me know so I can get my "flow" chart flowing in the correct
direction. (March 12, 2001) |
A township planning commission term of office is for
three years, staggered, with as near as an equal number of the commission
as possible having a term end each year (except for the one appointed
from the township board, who serves a term equal to the term on the township
board). This is found in the Township Planning Act and
in the Municipal Planning Act (for cities and villages), and in the County
Planning Act. See
this web site's page of planning and zoning statutes for
a copy of each of these. ----Kurt H. Schindler |
| Residency, property ownership. | Can a city/village appoint
non-residents to its Planning Commission? Can property ownership
be required? Do you know of any city that has a non-resident sitting on its PC? The statutes seem to allow it, and I think it would be great if my little town of Xxxxx would create one seat (we have 9 seats) especially for "a member of an adjacent jurisdiction." Before releasing that political monster here in town I thought I would try to find another city with such an arrangement. (November 13, 2001. Upddated May 10, 2006) |
The County Planning Act
require members to represent important segments of the county as they
exist in the county. The county board establishes the basis for
representative membership on the County Planning Commission. (M.C.L.
125.102) The Township Planning Act requirement is to be an elector and a property owner and representative of major interests as they exist in the township. The Municipal Planning Act (for cities, villages, townships that created planning commissions before the township planning act was adopted) is silent on it, and there are no Attorney General opinions or appellate cases one way or another. The City of Manton has done so in the past (Manton is just north of Cadillac on U.S.-131 in Wexford County). They included a CBD businessman (dentist) on their planning commission even though he lived in the adjacent township. He held no office with the township so there was not any coordination value being accomplished with the township. He did not want to be re-appointed and so is no longer on the Planning Commission. The Village of Suttons Bay (Leelanau County) has also done so. The individual is a downtown business owner who lives outside the village limits. The Village of Harretta (Wexford County) stratells the boundary of two townships. That village set up its planning commission to have one representative from each township sit on their planning commission. There may be others, these are just the ones I am aware of. Michigan Attorney General Opinion No. 5197 deals with an ordinance requiring property ownership within the city to be a Planning Commission member. The Attorney General said a village or city cannot require property ownership, but decided the matter on constitutional grounds (related to property ownership requirement for voting cases). ---Kurt H. Schindler & Gary Taylor |
| Conflict of Interest | One of my neighbors
is also a member of the township planning commission. I have a special
use permit application pending before the planning commission. Is
there anything that would restrict him from his input or vote?
(March 31, 2003) |
A situation where your
neighbor should not vote is a real possibility. (It is not
"just not vote." When one should be removing one's self from an
issue it means: not voting, not participating in the discussion
or debate on the issue, not attending that part of the meeting (or if
one does, sit back in the audience section of the room and keep quiet).
If a neighbor has a conflict or not depends on a number of factors. The main one would be what the Planning Commission's Rules of Procedure (by-laws) says. Some by-laws spell out specific guidelines that are used to determine if a conflict exists or not. One would have to read the by-laws to know what is says. Absent any guidance in by-laws, then there are two schools of thought for if a neighbor has a conflict (and thus should remove them self) or not: First is the conflict extends only to those neighbors who own property immediately next door (contiguous parcel of land). If one starts to say it might include someone that is farther away, then the issue becomes "how far?" and on what basis: a block?, two blocks?, four blocks? And why not the entire municipality (in which case everyone would always have a conflict)? Thus the conclusion is a conflict should only be considered to exist for owners and residents of contiguous parcels of land. The second school of thought is to use thespecial use permit notices as an indicator. For example, when the notice of the special use is sent out, statute requires a certain set of property owners and residents get notice of the meeting. Presumably the legislature decided that set of property owners and residents are "interested" in the issue and should get the notice. If a member of the planning commission is one of those which receives that notice, then they have an "interest" and should remove them self from all aspects of the case. Many times the by-laws will spell out which of the above two sets of thinking is the one used in your community. If the by-laws do not address the issue, then it is up to the individual who may have the conflict to decide. On the opposite side of the coin, an appointed member of a planning commission has a duty to perform. They can not decide not to vote cause it is uncomfortable, or may not be popular with others in his/her neighborhood. If there is not a conflict, then that person has a duty to do their appointed job. One can also get in just as much trouble for failure to perform their duty. For additional reading: P.A. 566 of 1978, as amended, (being Incompatible Offices Act, M.C.L. 15.181 et. seq.) P.A. 318 of 1968, as amended, (being Conflict of Interest M.C.L. 15.301 et. seq.) P.A. 196 of 1973, as amended, (being Standards of Conduct for Public Officers and Employees Act, M.C.L. 15.341 et. seq.) P.A. 317 of 1968, as amended, (being Contracts of Public Servants with Public Entities, M.C.L. 15.321 et. seq.) (The statutes can be read and downloaded at the Michigan Legislature web site .) Michigan Society of Planning’s Community Planning Principles . AICP/APA Ethical Principles in Planning (May 1992) . AICP Code of Ethics and Professional Conduct (October 1978, amended October 1991), along with AICP Advisory Rulings on the same. ----Kurt H. Schindler |
| Ethics with a possible Conflict of Interest | I would like your opinion (expertise) on
a situation. Is it ethical for a Planning Commission member to approach
applicants/representatives who have come before the Planning Commission
to do work for them (construction)? The approach could be after
a meeting is adjourned in the hallway, outside the building or via phone.
(March 31, 2003) |
First, the activity
is "legal" in the technical sense. The stuff covered by statue can
be found in: *P.A. 566 of 1978, as amended, (being Incompatible Offices Act, M.C.L. 15.181 et. seq.) *P.A. 318 of 1968, as amended, (being Conflict of Interest M.C.L. 15.301 et. seq.) *P.A. 196 of 1973, as amended, (being Standards of Conduct for Public Officers and Employees Act, M.C.L. 15.341 et. seq.) *P.A. 317 of 1968, as amended, (being Contracts of Public Servants with Public Entities, M.C.L. 15.321 et. seq.) They can be read and downloaded at the Michigan Legislature web site . Ethics, however is another matter. The Michigan Society of Planning has written a set of Community Planning Code of Ethics . For Michigan this is the only set of written ethics guidelines for appointed members of zoning boards, planning commissions, appeals boards. Some of the paragraphs from this Code read: "2. Continuously strive to achieve high standards of integrity and professionalism so that the public respect for the community planning process is maintained." "3. Abstain from all discussion and decisions in which an appearance of an impropriety or conflict of interest may be perceived. Refuse any personal gift, tangible or intangible that may be perceived as influencing decisions or actions." "8. Avoid any act or decision that would tend to promote individual or special interests at the expense and/or dignity of community planning." The Society has been advocating that communities adopt a statement of ethics, and puts forward their Community Planning Code of Ethics as a model for this purpose. The American Planning Association's American Institute of Certified Planners also has Ethical Principles in Planning . However the Principles are geared more toward the professional planner (e.g., building inspector, zoning administrator, city's planner). It reads, in part: 4. Abstain completely from direct or indirect participation as an advisor or decision maker in any matter in which they have a personal interest, and leave any chamber in which such a matter is under deliberation, unless their personal interest has been made a matter of public record; their employer, if any, has given approval; and the public official, public agency or court with jurisdiction to rule on ethics matters has expressly authorized their participation; 5. Seek no gifts or favors, nor offer any, under circumstances in which it might reasonably be inferred that the gifts or favors were intended or expected to influence a participant's objectivity as an advisor or decision maker in the planning process; 9. Not use confidential information acquired in the course of their duties to further a personal interest; The question you pose is a tough one. I can see too different ways to view this. And when conferring with colleagues on this question, even more possible responses emerge. My first reaction is to say the behavior of a member of a planning commission approaching the applicant right after the meeting to obtain the applicant's business is suspect because the member is taking advantage of his position on the Planning Commission to solicit business. Implied with the sales pitch is the stuff that goes along with that: "I voted for your permit, so give me the work." "I'm connected with the city, so hire me to have a smoother time with inspections," etc. On the other hand John Amrhein (MSUE State and Local Government Agent) points out that any contractor can make them self aware of each applicant before the Planning Commission and can approach that applicant for the job before, during, and after the meeting. The member of the Commission is not privy to any secrets. The application, the fact the issue is on the agenda, etc. is all public record. There does not appear to be a case of the member using "inside" information to his advantage. (The exception would be in the instance when a developer approaches the city, or Economic Development Office, in confidence about a possible project. But this is occurring before a public zoning permit application is applied for.) Patricia E. Norris, Natural Resource Economist, MSU Professor and Extension specialist says economists have a term -- moral hazard -- that describes situations where people can do the "wrong thing" because of a potentially good outcome. For example, if crop insurance programs are paying very good benefits, what incentive does that instill in a farmer to avoid all sorts of risks to his crops? So, if the member of the planning commission argues in favor of a bad approval because he/she sees a business opportunity, that individual is faced with a moral hazard. Most literature says that avoiding being in those situations is preferable. On the other hand, if the application is not problematic, and the member sees a business opportunity after the fact, then it is different. Of course, that requires that you fully understand the person's intentions. It seems that if a member sees that it is going to be contentious, then it would be wise to recuse. Sarah (Genshaw) O'Donnell, MSU Extension Land Use Agent in Newaygo County comes at this from the perspective of the American Institute of Community Planners ethics discussion: Even though it occurred after the meeting, the Planning Commission member/contractor still has to guard against substantial conflicts that would occur if they participated in influencing the review process which affected the private development interest. Especially if the member sees his 'personal interest' as a 'potential benefit' when participating as a member at the meeting Wayne R. Beyea, MSU Extension State Coordinator for the Citizen Planner Program indicates his judgment indicates it is okay for the Planning Commission member to contact the applicant later (after the meeting, like the next day, etc.). However, such a contact should include a statement that "I cannot give you special treatment and may require me to remove myself from future decisions which are related to your projects." Let me close with this paragraph from an AICP Advisory Ruling on this issue: "A code of ethics should not be a what-can-I-get-away-with code. It should not be tortured into loopholes and technicalities that would allow a person to be formally correct while ethically wrong. The AICP Code looks for 'more than the minimum threshold of enforceable acceptability. It sets aspirational standards that require conscious striving to attain.'" For more reading see: Michigan Society of Planning’s Community Planning Principles. AICP/APA Ethical Principles in Planning (May 1992) . AICP Code of Ethics and Professional Conduct (October 1978, amended October 1991) , along with AICP Advisory Rulings on the same. ----Kurt H. Schindler |
| Incompatible Office | I'm confused. Is it okay for a member of a township Planning Commission to also be on the county Planning Commission or not? (Answer revised October 1, 2004) | Generally, yes. The two
offices are not incompatible. So one person can both be a member of
a county planning commission and township/village/city planning commission
or zoning board. "Incompatible offices" means public offices held
by a public official which, when the official is performing the duties
of any of the public offices held by the official, results in any of
the following with respect to those offices held:
|
| Voting Twice on the Same Issue | At the
Michigan Society of Planning conference, it was stated that "there
are some situations where statute allows holding two offices is okay (e.g.
member of elected body and planning commission, appeals board and planning
commission). But one should not vote on the same issue twice. At
one of the two positions, abstain." I believe there is a court ruling in this regard. Our City Attorney would like to know what case law was referenced. (June 26, 2008) |
The best source
to answer your question is a Michigan Attorney General Opinion Number
6742, which includes several court citations. Courts have held that the right to an impartial decision maker includes this requirement of due process in administrative hearings (Crampton v. Dept of State, 395 Mich 347, 351; 235 NW2d 352 (1975). This court case discusses at length cases of the United States Supreme Court which found that due process required that where a review of an initial decision was mandated, the decision maker must be someone other than the person who made the decision under review: The idea is that a person should not sit in judgement of his/her own previous decision. Sort of like if you get a speeding ticket, that you know was unjustified. So you go to court to contest the ticket. The policeman who wrote the ticket is never the individual who sits behind the magistrate's desk in District Court to judge if you should have gotten the ticket he wrote you, or not. Same principal: When the planning commission hears an administrative case, and acts on it, and then that case gets appealed, the zoning board of appeals hears the contested decision. In that instance the member of the planning commission that sits on the ZBA needs to remove him/her self so that person is not voting on his/her previous decision. When the planning commission makes a recommendation on an administrative action (special use, site plan, PUD/special use, enforcement) and the final decision is made by the legislative body (maybe not good policy), and acts on it, and then that case gets appealed, the zoning board of appeals hears the contested decision. In that instance the member of the planning commission that sits on the ZBA and the member of the legislative body that sits on the ZBA both need to remove him/her selves so that person(s) is(are) not voting on his/her previous decision. That has always been black and white, and not allowed. The Michigan Zoning Enabling Act not codifies that. The bit less clear is when the planning commission makes a legislative recommendation to the legislative body (zoning amendment, PUD/amendment). Because it is a recommendation (not a final decision) and a legislative action, the member of the legislative body that is also on the planning commission can vote on the issue. This would be the same as a committee reporting back to the full board. When the full board votes, members of the committee get to vote on the issue, even through the voted the first time when it was in committee. The fuzzy grey area is when the planning commission makes an administrative action recommendation to the legislative body (special use permit, PUD/special use, enforcement, site plan review) (maybe poor policy). Because it is a recommendation (not a final decision), the member of the legislative body that is also on the planning commission can vote on the issue. This would be the same as a committee reporting back to the full board. When the full board votes, members of the committee get to vote on the issue, even through the voted the first time when it was in committee. However some communities are not comfortable with this, and want to set a higher standard. So they say the legislative body member does not vote in both roles on administrative decisions. Such a rule would be a part of the planning commission bylaws. (If it is not in the bylaws, then the individual can vote in both situations.) Before adopting such a higher standard, this should be put before the municipal attorney to know his/her comfort level and to learn the legal pros and cons to doing so. So to summarize: *PC & ZBA (any action): do not vote on the same issue twice. *Legislative Body & ZBA (administrative action): do not vote twice on the same issue. *PC & Legislative Body (legislative action): Can vote on the same issue twice. *PC & Legislative Body (administrative action): Not so clear. Specify in the bylaws how to handle it in your community. ----Kurt H. Schindler |
| No Ex parte Contact | The idea of not having any Ex parte
communications between members of the planning commission, or appeals
board, with people is not a popular concept in my township. I perceive
them to feel that the risks involved are outweighed by the inconvenience
of not changing our method of operation. (March 31, 2003) |
The purpose of
"No Ex parte contact" is so that every member of the commission,
or appeals board, gets to hear everything that is said. What is
said is done at a public meeting, not before hand. So members are
not pre-judging the case. Also so that others can also hear everything
that is said so they have an opportunity to respond. Then members
are able to hear all sides. However, your township has some options. If the ex parte thing is an issue, then maybe it would be better for your township to do site visits by the planning commission as a group, so everyone is there to hear everything. It means having to post the site visit as a public meeting and take minutes, but that is not a big thing. Every so often there will be audience that want to come and it may or may not be an issue with the landowner. And if someone still gets a phone call, or stopped on the street; remember try to tell them to come to the meeting or write a letter. If that does not work, then the contact should be reported to the rest of the planning commission along with a general content of the conversation. UofM Law Professor Clan Crawford, in his textbook (Michigan Zoning and Planning, Third Edition Includes Cumulative Supplement, 2003); by Clan Crawford, Jr.; The Institute of Continuing Legal Education; Ann Arbor), cites Kropf v. City of Sterling Heights , 215 N.W.2d 179, 391 Mich. 139 as approving of the language in Fasano v. Washington County Board of Commissionersan Oregon case) that lays out the basic framework for a valid administrative hearing. Among the basics for an administrative hearing is "having had no pre hearing or ex parte contacts concerning the question at issue." The court said: "'Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test. * * * 'With future cases in mind, it is appropriate to add some brief remarks on questions of procedure. Parties at the hearing before the county governing body are entitled to an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the material, having had no pre hearing or ex parte contacts concerning the question at issue and to a record made and adequate findings executed. Comment, Zoning Amendments. The Products of Judicial or Quasi Judicial Action, 33 Ohio St.L.J. 130143 (1972).' Fasano v. Board of County Commissioners of Washington County, Or., 507 P.2d 23, 26, 30 (1973)." Communities may adopt the APA (or Michigan Society of Planning) sample Rules of Procedure for possible guidelines to govern the conduct of their own meetings. An appeals board or planning commission's rules of procedure should probably reflect how the issue of ex parte contact is handled. Remember the goal: Your membership does not want to appear prejudicial: Rather you want everyone to have the same information on which to base a decision, and you want to be fair to the extent that others can hear what is said and have a chance to respond. ---Kurt H. Schindler & Gary Taylor |
| Why Coordinated Planning | People on my local planning
commission have reacted negatively to the new coordinated planning requirements.
Beyond the distaste for the legislature telling them what to do, the required
distribution to the county planning commission and mandatory comment period
got lots of questions and unfavorable reactions. Mind you, the planning
department in our county is well regarded, all but a few townships participate
in county planning and zoning. Most of the comment period questions related to amendments. One planning commissioner said "Our consultant says we should update our future land use map in advance of doing a rezoning that is not consistent with the map." Do these acts mean that we have to delay 75 days every time we want to do a rezoning like that?" Is one possible effect of the acts to cause less frequent amendments and less reliance on "the map"? (March 1, 2002) |
There are many ways to answer
these questions/gripes about comment, plan notices, sharing copies, etc.
Concerning the planning amendment: The Part D of the MSU Extension program on the 2001 Amendments goes into why coordinated planning is needed, You said "all but a few townships participate in county planning and zoning" which sort of makes the point about the lack of coordinated planning so far in Michigan. Regulation comes from Lansing, mainly in the absence of good practice taking place at the local level. It is that absence that generates complaints which results in the legislature taking action. Coordination is often the only effective way to plan because the topic requires a uniformity for a larger geographic area. Not to do so is intentionally doing lesser quality job than one could. Ask for a show of hands: Do you think neighboring governments should work together and talk about common issues? Do you think your neighboring municipality should let you know about a major planning initiative they are undertaking? Is there value in knowing what your neighbors are doing? If that is the case for your neighbor, then doesn't it also hold you should notify your neighbors when you start a planning initiative? Communities should update their future land use map in advance of doing a rezoning that is not consistent with the map. Do these acts mean that we have to delay 75 days every time we want to do a rezoning like that? Yes. Developers (e.g. Michigan Chamber, etc.) were lobbying for the Coordinated Planning Act to prevent amending the plan at all for a period of five years. Other versions were scaled back to amending a plan only once a year. The idea is the development community wants stability, not regular or fickle changes. A 75 day process is not so bad in comparison. (By the way, before the amendments, a township plan adoption process was 20-30 days for a public hearing, plus 30 days for county planning commission review, plus whatever amount of time before it got back to the township planning commission for adoption: 50-60 days or more.) Is it possible this will result in fewer amendments? Yes. Some, as you can see above, would think that is a good thing. It may also result in fewer amendments. Will it cause zoning changes to rely less on the plan. I would hope not. From what I have seen, there are several communities that have never based their zoning on a formally adopted plan --and there are some consultants who do not advocate doing so. So I would say "no change." Those that are conscientious about that will continue to be so, those that are not, never were. ----Kurt H. Schindler It is accurate that the plan needs to be amended before the zoning map is changed, if the proposed rezoning is inconsistent with the plan (that means both the plan text and map). Even MTA's attorneys have preached this for two decades and their summary procedures for rezonings also say so. So yes, the new process may make a rezoning a longer process, but only if the community doesn't stay on top of current trends. I expect the new plan amendment process will push suburban (and some growing rural) communities to a 2-3 time per year rezoning process so that they can consider multiple rezoning requests together relative to the plan. A plan that is kept current and a zoning ordinance that reflects the current situation (i.e. all land is zoned for current use, except for a small amount of land desired to be used for a more intensive use -- and zoned that way because new infrastructure is present or soon to be present--like sewer and water) will not need to be amended very often. If the community is in the path of development, they should be doing an annual review of the plan, not waiting every 5 years. This will result in them making necessary plan changes in anticipation of development needs and very few if any rezoning requests will be inconsistent with the plan, thereby eliminating any delay caused by the need to amend the plan before the zoning. -----Mark Wyckoff |
| Adopting Plan under New Planning Acts | Do you have a handle on what's
happening with the planning statute change? Are communities gearing
up to accommodate the notification and review process? I have asked the county planning commission to establish a subcommittee, but before I call them together I thought I would check with you to see what's going on in other counties. Are there any "guidelines" set? (September 10, 2002) |
Wexford and Monroe Counties
are the first two to develop new county plans under the coordinated planning-amended
planning acts. Benzie county processed an amendment using the new
procedure. At the Municipal level; Manistee City will be under the new process. (Cadillac plans to finish soon, and will do so under the old process). There are a number of townships, that I am aware of, in the West Branch-Tawas area that will use the new process. There may be others I'm not aware of. As to guidelines; go here to download the checklist for a county, township, or municipality. For detail on various statute interpretations (or best planning practice) use this link . ---Kurt H. Schindler |
| Deadline to Complete "old" plans | If a community is preparing a master plan amendment
and is scheduled to complete the process prior to January 9, 2003, but
doesn't, do they have to back up and do the notification process?
(September 25, 2002) |
Yes. The statute is clear,
if the plan is not adopted prior to January 9, 2003, then the new procedure
should be followed. If, by January 9, 2003 the plan is not done there are two views as to what should be done: 1. The process should start over, following the procedures as they now exist in statute. 2. It is probably not necessary to start over, and that sending out notices that advise of the status of the process currently (and of course, following the notice procedures from here on in) is sufficient. The language of the statute doesn't clearly spell out a "start over" requirement, so I doubt that a challenge on those grounds would stand. What ever is done, your government's corporate counsel should be asked, and his/her answer should be followed. The worst thing one can do is hand some future opposition all the ammunition they need, on a silver platter no less, for someone to go down the road of finding the plan invalid or not properly adopted. Not following statutory procedure, or trying to find a shortcut around statute-required procedure is a very effective way of providing some future opposition that ammunition. ---Kurt H. Schindler & Gary Taylor |
| Planning Library | Do you have any suggestions that we should absolutely
have in our Planning Department library? (March 30, 2001) |
Your town Stuff:
Michigan Stuff: From the American Planning Association (APA): (in addition to going through their catalog and picking out titles that interest you. The rule of thumb with APA is if you can find the topic covered in a publication specifically for Michigan, that will be better and more useful --do not bother to get the same topic coverage from APA; and remember material on zoning written at a national level may not apply to Michigan) ----Kurt H. Schindler |
| What is in a Plan | The planning commission for my village is in the process
of updating its Master Plan (from 1978). I have read through Check
List #M1, For Adoption of a City and Village Plan in Michigan, and have
the following questions. I am hoping that you or someone on your
staff might have the time to help me find answers/tools. 1. Are there studies available that provide planners with the optimal percentages of open space for a given area? What about recreational? 2. Do you have examples of good PUD zoning requirements? 3. Do have examples of good growth management plans? |
1. Not really. This type of an issue is
specific to a particular local and community. The answer will be
different for different communities. This should be established
by conducting a study, it is one of the studies which are done in preparation
of doing a plan (step #6 of Check List #M1). Even the legislature
recognized there would be differences for different situations.
That is why cities and villages must have at least 50% protected open
space in the open space/cluster zoning, while counties and townships must
have 70%. You might take these hints from the zoning statutes, and
apply the 50% to developed areas of the village and something closer to
70% to "rural-like areas of the village. Again your own study will
be needed to establish this. 2. You might want to visit the Michigan Municipal League web page and look through their library of local ordinances. Many ordinances are available for viewing on the web. 3. I have some, but they are mainly written for a county, not a village. Because of the part of the state I work, my focus tends to be rural, dealing with counties and townships. They may not be applicable for you. If you are still interested you might want to see a copy of the Benzie County Comprehensive Plan and the Leelanau County General Plan. Also, a review of the Grand Traverse County Regional Development Guidebook and a companion document on sample regulations would be of interest. ---Kurt H. Schindler |
| What is in a Plan Part II | 1. Our Township has a population of less
than 1,000 people. The Zonng Ordinance was adopted in 1976, without
a separate Plan. Given the size of our Township and the date of
the Ordinance, are we legally required to have a Plan? 2. Assuming that we legally need - or decide that we should have - a Plan, I would like to keep the effort in line with the size and needs of our community. For example in looking at the requirements of typical Plans, they seem to be address needs for urban and industrial areas. Do you have suggestions as to how our township might develop a Plan that would fit the needs of the community without spending money for outside consultants (this has been suggested) and involving excessive time commitments on the part of the Planning Commission members as well as other members of the community. Given that we have a Zoning Ordinance and an active Zoning Appeals Board (of which I am also a member), what is the most efficient way for our Township to develop a Plan? |
Also, two publications which
would be very good to purchase are: 1. Workbook For Preparing or Updating a Master Plan or Growth Management Plan, Michigan Society of Planning Officials . 2. Township Guide to Planning and Zoning, Michigan Townships Association . I recommend your township purchase both. Also, for an example of the background research that should be done for preparing a plan, visit http://www.wexfordcounty.org/factbook.html . This is what was done for Wexford County, following the Planning Acts, as amended this past year. Keep in mind it is for a county, as a result it will involve more than what would be done for a township. 1. The Township Planning Act does not have any provisions for doing a lesser job because the community is under a certain population size. The legal tests, the standard that zoning is based on a plan, and that plan have the necessary research and public participation is the same regardless of the township's size. That said, it is also important to point out the emphasis and detail which will be necessary for your township will not be the same as for another township. For example, if a township has a densely populated area that has, or should have, public water and sewer, then one would expect that township's plan to spend quite a bit of time and space on water/sewer infrastructure. But a township that is 100% rural, would only have a paragraph that says something along the lines of "water/sewer infrastructure is not an issue in this township and is not foreseen to be an issue during the period of this plan." The Township Planning Act provides broad guidance as to what is needed in a Plan: Sec. 7. The basic plan shall address land use issues and may project 20 years or more into the future. The plan shall include maps, plats, charts and descriptive, explanatory and other related matter and shall show the planning commission's recommendations for the physical development of the unincorporated area of the township. The basic plan shall also include those of the following subjects which reasonably can be considered as pertinent to the future development of the township: (a) A land use plan and program, in part consisting of a classification and allocation of land for agriculture, residences, commerce, industry, recreation, ways and grounds, public buildings, schools, soil conservation, forests, woodlots, open space, wildlife refuges, and other uses and purposes. (b) The general location, character and extent of streets, roads, highways, railroads, airports, bicycle paths, pedestrian ways, bridges, waterways, and water front developments; flood prevention works, drainage, sanitary sewers and water supply systems, works for preventing pollution, and works for maintaining water levels; and public utilities and structures. (c) Recommendations as to the general character, extent, and layout for the redevelopment or rehabilitation of blighted areas; and the removal, relocation, widening, narrowing, vacating, abandonment, or changes or use or extension of ways, grounds, open spaces, buildings, utilities, or other facilities. (d) Recommendations for implementing any of its proposals. The Township Planning Act also talks about the homework that should be done to prepare a proposed Plan: Sec. 6. (1) The township planning commission shall make and approve a basic plan as a guide for the development of unincorporated portions of the township. As a basis for the plan, the township planning commission may do any of the following: (a) Make inquiries, investigations, and surveys of all the resources of the township. (b) Assemble and analyze data and formulate plans for the proper conservation and uses of all resources, including a determination of the extent of probable future need for the most advantageous designation of lands having various use potentials and for services, facilities, and utilities required to equip those lands. (c) Meet with other governmental planning commissions to deliberate. At a minimum, I would suggest the investigations, inquires, surveys, data analysis that should be done is (1) a detailed review of the Soil Survey as it applies to lands in the township, (2) a land use/cover change analysis, (3) some form of public participation (random sample survey, visioning, town meetings, etc.), (4) analysis of natural resources (water, groundwater, forestry, agriculture, minerals, ecological/habitat/scenic, (5) population (data on existing, seasonal changes, future projections), (6) road infrastructure (7) housing needs, (8) land ownership, (9) critique of existing zoning. There will be other items, but that will depend on what other issues are relevant for your township (as the example, above, on water/sewer infrastructure). 2. I think you can develop a far more useful plan "in house" rather than by hired consultants. For example, when Wexford started its planning, we hired consultants for just small bits of the job. MSU Center for Remote Sensing was used to prepare the land use/cover change work. U.S. Department of Agriculture (East Lansing Office) was used to provide the soils analysis. Central Michigan University did the random sample public opinion survey. In your case, much of that work may already be done by your County Planning Department. So do not re-invent the wheel, use their work. The idea is to do the background homework first. Seek the experts needed to receive and understand that analysis. Focus on learning that stuff. Then, when that learning and investigation process is over, start to work on the Plan itself. In Wexford, we literally broke the task into those two parts. First was the development of a Fact Book for the presentation of the background material. Next is writing a separate book that is the Plan. The Plan part was done by citizens. Consider using your Emmet County Extension office to help with organizing and facilitating the meetings where that work is done. Writing a plan takes time. It should take time, it is a big job. It should involve many people and may be seen as "involving excessive time commitments on the part of the Planning Commission members as well as other members of the community" by some. That is the nature of the task. It is worth taking the time to do the job right. As to the need for a plan: it is an option in Michigan, not a requirement. However if your township has zoning, statute requires that "zoning is based on a plan." So if the township has chosen to have its own zoning ordinance, then the township has to have a "plan". Some will argue the "plan" that zoning is based on does not have to be the "plan" that is adopted under the Township Planning Act. Others will argue that it does. Courts have not been consistent in how they rule on this point. To play it safe, if one has zoning, one might want to have a plan adopted under the Township Planning Act. That is certainly "best planning practice". You will want to have this discussion with your township attorney and follow his advice. ---Kurt H. Schindler |
| Cost of a Plan | I know this is a very generic and hard
to answer question - but do you have any broad, general answer as to how
much a plan could cost? (May 15, 2006) |
You are correct,
the question is too broad. |
| Land Use and Land Cover |
Our county planning
commission has started to work with the Regional Planning Commission regarding
creating a current land use map. They started with two pilot towns.
In one, the Supervisor, who is also the assessor spent about 10 hours
reviewing tax assessment cards and designating different land uses by
color on a map. The second, has not had time to do any work on it
yet. The Regional Planning Commission Director said he would help,
but I'm concerned that this may be a lengthy process and the Commission
needs to see progress as well as the county's feet are being held to the
fire regarding making good progress towards completion of a county master
plan this year. (November 15, 2002) |
The suggestion
to make is the land use map really should not be done using tax assessment
cards. The land category codes that are used for tax assessing purposes
have little or nothing to do with the land use/cover analysis which is
needed for a plan. This is because tax assessors lump an entire
parcel into a category, even though there may be two or more land uses
occurring on the parcel. Also if a category in a township is too
small, the tax assessing category is eliminated, and lumped in with another
category. This means it does not show up at all on the map.
All this leads to misleading land use planning information, which results
in bad decisions being made. You may want to contact and speak with a number of different university Geographic Information System (GIS) shops (MSU, NMU, Grand Valley, CMU, and others) which can perform that task relatively inexpensively and also provide analysis and comparison to work that was done 20 years ago. For example in Wexford County we used MSU's Center for Remote Sensing and GIS Sciences. They took the state-wide land use/land cover work done in 1978 and updated it. They were careful to use the same protocols and classifications that was followed in 1978. That gives you a very valuable comparison; which tells you what was, what is, what changes occurred. It is from this that an analysis can be done to identify if you have more/less farmland, forest, sprawl, urban, and, for example, if you have less farm land what happened to it (did it become urban, forest, open field, etc.) and where these different things are happening in the county. The Center for Remote Sensing and Geographic Information Science, Michigan State University, in cooperation with the Kellogg Foundation, can update Land Use/Land Cover data. Land use/Land Cover from 1978 is overlaid on current high quality aerial photography and the results are interpreted for change. The updated data can also be analyzed for patterns such as urban sprawl, the disappearance of prime farmland, and fragmentation of forest and natural areas. Additionally, mapping rural residences can help local planners assess infrastructure, emergency service, educational, and other needs. The cost for the basis data update is $2,000 per public land survey Township, with $1,000 covered by the grant, and $1,000 due from the township. For an additional $1,000 from the community, the update can include the change analysis, which includes large format maps, graphic and tabular summaries, a report, and dwelling inventory. This offer is extended to the first 50 townships to enroll (starting November 2002). Even if one does not get the advantage of the grant, a price of $2,000 per public land survey township is a good price. For information or to enroll, contact Jessica Moy at MSU (517) 432-0601. ----Kurt H. Schindler |
| Capital Improvement Planning | Aside from the various planning statutes, are there
any other laws that require/authorize/encourage a unit of government to
develop a capital improvements plan? My planning commission is starting
work on one and we are trying to establish the need and authorization
for one. (July 1, 2002) |
It is Section 9 (M.C.L. 125.39)
of the Municipal Planning Act: For the purpose of furthering the desirable future development of the municipality under the master plan the city planning commission, after the commission shall have adopted a master plan, shall prepare coordinated and comprehensive programs of public structures and improvements. The commission shall annually prepare such a program for the ensuing 6 years, which program shall show those public structures and improvements, in the general order of their priority, which in the commission's judgment will be needed or desirable and can be undertaken within the 6 year period. The above comprehensive coordinated programs shall be based upon the requirements of the community for all types of public improvements, and, to that end, each agency or department of such municipality concerned with such improvements shall upon request furnish the commission with lists, plans and estimates of time and cost of public structures and improvements within the purview of such department. Similar language exists in the county and township planning acts. ---Kurt H. Schindler |
| Housing | I know that there has been
some interest on the regional planning level of late about getting involved
in affordable housing issues. I am wondering, at a planning level, what
role does a Planning Commission have in housing and what are some of the
types of things it can do in this regard? My Planning Commission has expressed some interest but is unsure of exactly where to start. Could you give me some tips? (May 31, 2001) |
Yes, a planning commission
should be involved in housing issues. First, to determine if there is an issue or not. Second, to define what the issue is. It would be a mistake to just say it is low income housing without study of the many other possibilities. Third, the issues documented, determine if it is a village-scale problem, or a county-scale problem, or a ___-scale problem. (the implication being the entity closest to the same scale should be the one to address the issue). Involvement can include seeking funds/grants/loans from MISHDA, if low income/moderate income housing is the issue. MISHDA might also be of some assistance if the focus is on lack of upper scale (high income) housing in an area, but not as likely. There you may have to work directly with a developer. The issue might also be one of a "homeless" population, involving need for soup kitchens, hostels, safe house (for those seeking shelter from abusive spouse) [those numbers are higher than you might think]. Finally, the issues might be housing/living facilities for mental or physically disabled or the elderly with partial or no ability to care for them self. Most housing studies/plans include the following parts: 1. Economic and Housing Market area identification 2. Socio-economic data analyses (income level, cost of housing comparisons, etc.) 3. Demand analyses (job creation (immigration)/seasonal resident influx/retirement immigration) 4. Supply analyses (housing construction) 5. Conclusions 6. Recommendations It is normally a part of a comprehensive plan, but can be a big enough of a concern, that it is dealt with separately in a Housing Plan. There are folks in MSU Extension with strong background in this area that your county Extension Director could put you in touch with. In Leelanau and Benzie, the county planning department administered the MISHDA housing program. In Wexford the Human Services agency does so. ----Kurt H. Schindler |
| Zoning Amendments and the Plan | 1. This was brought up at our July county planning
commission meeting (I was not there), and then again at our August meeting
the other night. I just would like your thoughts (or your colleagues
thoughts) on this issue. I have searched all my information on preparing
and writing staff reports, planning commission review, etc. and can not
find anything conclusive. We had a rezoning request in July for
13.7 acres which were long, narrow and odd shaped. The applicant
requested rezoning in order to allow 2 homes on the property instead of
1. The township planning comm. recommended denial. The county
planning commission recommended approval and their motion failed on a
tie vote 4-4. They did not make any follow up motion and sent along
their comments to the township, instead, so they did not pass a motion.
2. The township board approved the rezoning 4-1 and it is now going to a referendum (so I hear). The concern by one county planning commission member who is the representative from the township where this rezoning is, was that the county planning commission also discussed the parcel across the road that the applicant owns and what they could do with the density if rezoned. This county plan. commission member said it was ILLEGAL to take that into consideration. 3. Other members felt it was not because the applicant did own the piece across the road and once rezoned, according to the township ordinance, they could use both pieces to obtain a higher density through their clustered housing concept. 4. So, they had discussion and were concerned about that, but it was not included in any motion. I was asked for my input at the August meeting to which I responded that the application was for the 13.7 acre parcel only so that is what the county planning commission had to take action on. However, they did need to look at the surrounding area, land uses, density, zoning, etc. in discussion on the case and determining if rezoning was appropriate. Have you had any experience with this type of issue? 5. Are there any court cases showing where it is illegal for a review body who has denied a request and used the excuse of what might happen because of an adjoining parcel of land also owned by the applicant? |
The issue of what one reviews
for a rezoning/zoning amendment (same thing) is often done in a questionable
manner. Clarifying this role been a focus of a number of training
sessions I do; including the training on the 2001 Planning Amendments.
By way of introduction to the subject, the decision point for a rezoning/zoning amendment should be tied back to an analyses of how it complies with the adopted plan upon which the zoning ordinance is based. (Remember, zoning must be based on a plan, thus there is an adopted plan of one sort or another that is out there. Plans adopted pursuant to P.A. 285 of 1931, as amended, (being the Municipal Planning Act, M.C.L. 125.31 et. seq.), P.A. 282 of 1945, as amended, (being the County Planning Act, M.C.L. 125.101 et. seq.), or P.A. 168 of 1959, as amended, (being the Township Planning Act, M.C.L. 125.321 et. seq.) could certainly be the plan, but it might also be some other document which was prepared specifically for purposes of preparing a zoning ordinance (as would be the case of a municipality with a zoning board, but not a planning commission). That being said, then, the point of review of a zoning amendment by the township planning commission should focus on if the proposed change complies or contravenes the plan. If the finding by the planning commission is "yes it complies" then action to recommend adopting the zoning amendment is appropriate. If the answer is "no", then the action by the planning commission should be to recommend not to adopt the amendment, or action to initiate an amendment to the plan. (There are now some communities which are taking this a step further and including in the zoning ordinance amendment procedure that if a proposed amendment is found not to comply with the plan, then the proposed amendment is not forwarded to the legislative body to act on. But the planning commission must initiate a plan amendment (which may or may not be adopted). I suspect this approach might be challenged at some point in the future, and it will be interesting to see how that turns out) Please note, that the entire decision process is focusing on compliance with the plan. I would argue that any review of the surrounding area, land uses, density, what might happen because of an adjoining parcel, etc. is not appropriate or proper. That type of review should be reserved for the discussion of a special use permit request (including PUD, conditional uses, etc. all handled as special use administrative decisions) and compliance with specific ordinance standards. For a zoning amendment the discussion and decision of what an area should be zoned (and thus if an area should be rezoned) should have taken place during the formulation of the plan. Okay, that is the municipality's review of its own zoning amendment. Then, if the municipality is a township to comes to the county for a review. The county planning commission's review should focus on up to four things: 1. Are legal adoption procedures followed? (Ask for an attorney's opinion.) 2. Is it consistent with the adopted township plan? (State statute requires a zoning ordinance to be based on a plan. If not a township plan, then the township should have adopted a county plan.) 3. Is it consistent with adopted County Plan(s)? (If the proposed zoning complies with the township land use plan, and the county found no conflict with and approved the township land use plan; then it should not be a problem with the county land use plan.) 4. Is there a conflict created with an adjacent municipality (both in and out of your county). (If the adjacent zoning is consistent with the county plan, and the proposed zoning is consistent with the county plan; then there should not be any boundary conflict. Also, just because there is a boundary conflict, it is not correct to say the zoning submitted for review is the problem. The problem may be the adjacent zoning. So how does one tell if it is the adjacent zoning/planning or the township zoning/planning being reviewed which is not consistent? The “tie breaker” should be the county plan. The one that is consistent with the county plan is not in conflict. The other one is.) Not all counties review for all four things. But note, again the review is focusing on plans not some form of "site analysis". Also, remember, under the amended planning acts; The county planning commission's review is purely advisory. The township can choose to ignore what the county says in review. The key: the county's art of persuasion. This is a weak tool, but a very important function. Consequence of ignoring the county's review is only what may happen in a future court case. Will the county be subpoenaed as a witness for the township or for the plaintiff? So having said all that, here are the answers to your questions: 1. So then, no action was taken. Thus, no communication should be sent to the township. (Staff might, as a courtesy send a copy of the draft minutes of the County Planning Commission meeting.) 2. The discussion should focus on compliance with procedure to adopt, township plans, county plans, and boundary conflict. Not a site analyses as though it is a special use permit, or variance request. 3. When discussing a zoning amendment, or rezoning, it is never wise to focus on the specific property owner and what his/her intentions might be, nor on a specific proposal for a single or couple parcels of land. An important thing to remember is that a zoning amendment makes changes for more than just what someone is proposing for a parcel of land. A text amendment can change rules for an entire zoning district, or the entire community – not just the property that someone is proposing something for. A rezoning is permanent, in that the person asking for a zoning amendment can die the next day, and whomever ends up owning the property afterward can do anything allowed in the new zoning. Also, there are some that employ the bait and switch: asking for a rezoning for some benign proposal, then as soon as the rezoning is done, proceed to do the something else what was really intended. 4. Yes, see above. 5. Not that I am aware of. But again, the concern is off point, as the analyses for review should focus elsewhere. ---Kurt H. Schindler |
| Schindler's Land Use Page: Land Use Page | Education catalog | Schedule of programs| Pamphlets |for people who are not members of local boards | questions and answers | land use links | Old Stuff | Indicia, disclaimer, etc. |  |
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| 2001 Planning & Zoning Amendments | 2004 Land Use Legislation | 2006 Michigan Zoning Enabling Act | 2008 Michigan Planning Enabling Act |Kurt Schindler | |||||||||
| Kurt H. Schindler, Regional Land Use Educator, MSU Extension, Wexford County; 401 N. Lake Street, Cadillac, Michigan 49601 | (231)779-9480 |schindl9@msu.edu | fax(231)779-9105 | Map to office | |||||||||
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