Schindler's
Land Use Page

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We have some that claim because they live on U.S. Land Patented property they are not subject to local regulations, zoning, or taxes. What case law is there on this?
(May 15, 2006)

     The short answer is the arguments of this genre are utter and complete nonsense. Rather than go to the expense of shooting the argument down, let the arguee try to find a lawyer that will take on the case --that way the arguee gets to pay his/her own legal fees to learn it is utter and compete nonsense.
     Otherwise, see Michigan Attorney General Opinion #6810.
     For the zoning argument: In Brewer v Kidd, 23 Mich 439 (1871), the Michigan Supreme Court citing US Const, art IV, Sec. 3, cl 2, said that once transferred by patent, jurisdiction became vested in the state:
     "Under these provisions, the power of sale and disposition of the public lands, and of prescribing the rules, regulations, officers, agencies and the whole course of proceedings, for effecting such sales is vested exclusively in the federal government, until the sale is consummated by the issuing of a patent to the purchaser, which alone (in ordinary cases like the present, at least) divests the title of the United States and vests it in the purchaser, when, for the first time, it becomes in all respects subject to the local laws of the state, like the great mass of other property within its limits." [Emphasis added. 23 Mich 443-444.]
     For the taxation argument see Section 1 of 1893 PA 206, the General Property Tax Act, MCL 211.1 et seq; MSA 7.1 et seq., provides:
     "That all property, real and personal, within the jurisdiction of this state, not expressly exempted, shall be subject to taxation."
     The only exemption even arguably applicable is that set forth in section 7 of the General Property Tax Act, which provides:
     "Public property belonging to the United States is exempt from taxation under this act. This exemption shall not apply if taxation of the property is specifically authorized by federal legislative action or federal administrative rule, regulation, or lease."
     The foregoing provision recognizes the primacy of the United States Government, under US Const, art IV, Sec. 3, cl 2, over property to which it has title. However, nothing in that provision governs the regulation or taxation of property after it no longer belongs to the United States - i.e., after its conveyance to others.

Part One: 
     The county board can not "conditionally" amend the zoning ordinance.  Changing the zoning ordinance is a legislative action which can only be reversed by the County Board coming back and amending the zoning ordinance again to undo the first amendment (repeal it).  The legal principle is that a legislative act (adopting an ordinance) is final. 
     The work-a-round would be to do the following:  Zoning amendment is proposed.  Planning Commission reviews/prepares draft of the amendment, holds the public hearing on the amendment, revises the amendment based on comment at the hearing, then adopts a motion which says to effect, we will act to send the amendment to the county board if/when the PUD Application or PRD Special Use Permit is approved.  Thus, county board is not presented with the amendment to adopt until after the PUD/PRD is approved. 
     The flaw with this approach is technically you may not be able to accept, review and process the PUD and/or PRD application before the ordinance is actually amended.  If you have angry folk out there, they will challenge the planning commission on this technicality. 
     Even after a PUD/PRD is approved and amendment adopted, the landowner can then change his mind and do something else allowed by the amended zoning ordinance. 
     Bottom line is once the ordinance is amended, that is what it is, and anyone can apply to do any of the permitted or possible special uses for that zoning district.  (For example, your applicant dies, goes bankrupt, or is unscrupulous, then the land owner (same person or next person) can have an entirely different project in mind.  
Part Two: 
     What a person's specific plans are for a specific parcel of land should have absolutely no bearing on if a zoning amendment should be adopted or not.  The review if a zoning amendment should be adopted or not should be based on: 
1. Compliance with the county plan. 
2. If not in compliance with the county plan, then are ALL the uses and possible special uses in the proposed zoning district appropriate for that location? If so then amend BOTH the plan and zoning ordinance?  (End result:  zoning complies with the county plan.) 
     If you base a zoning amendment on the merits of a specific proposal, then yes, the landowner or future landowners can pull a bait and switch.  THEY HAVE EVERY RIGHT TO DO SO under normal circumstance. Under normal circumstances a developer can not be required to give any detail about a specific project when asking for a zoning change -- only has to provide his request for the zoning change, pay the fee, etc. 
     Only recently, in Michigan, is it legal to have "conditional zoning" (M.C.L 125.3405) where an amendment is adopted on the basis of an agreement with a landowner to do a specific thing with a specific parcel. It has to be proposed by the applicant (not the local government). Careful review of the applicable statute, knowledge of proper negotiation, and involvement of an attorney should be part of this process. Conditional zoning should not be done unless first amending one's zoning ordinance with a number of provisions that spell out due process, procedure, and other such details. The Michigan Townships Association has developed an excelent model zoning language to for this purpose. A community also has the option to specify in their zoning that this option will not be used.
----Kurt H. Schindler 
 

    Anyone who applies for a permit, or zoning approval, or land division approval gets that approval based on what your zoning ordinance says on the date that a complete application is received by the zoning administrator. 
     (Many zoning ordinances, the zoning administrator has a job to first review an application and determine that it is complete.  Once complete, then that is the date.  And whatever the zoning says on that date (not future changes or amendments) is what one goes by.) 
     Review/approval is done based on the rules and ordinances in effect on the date a complete application is received:  One can not change the requirements for an individual project part way through the approval process, or part way through the construction process.   (Usually, once a land division approval and zoning ordinance permit is granted, it is forever, and runs with that particular parcel of land.  Sometimes a zoning ordinance says a permit not used within X days can expire.  That would have to be written in the zoning ordinance.)
     See also this question and answer. 
-----Kurt H. Schindler 
 

     I have not seen any court cases at the appeals court, or higher, level in Michigan. I would not know of district or circuit court cases. If there were cases in the lower courts they were settled, not appealed, or have not reached the appeal stage yet.
     My advice is for a community not to issue conditional rezoning unless the zoning ordinance has been amended to include specific procedures for how conditional rezoning is handled and what is included in such a process and in the conditional rezoning agreement. Without such an amendment there are important due process considerations which are missing which can get a community into trouble.
     By far the best example to follow for conditional rezoning language is the model developed by and made available by the Michigan Townships Association. It is written specifically for Michigan law, fills in those due process issues, and more. I have not seen any other sample that comes anywhere close to doing as good a job. MTA model is found at this web page.
     If you are looking for a template for the conditional rezoning agreement, the Spring Planner's Institute for 2005 had a one among its handouts. You could probably contact Michigan Association of Planning to obtain a copy of that.
     A local government planning commission (or anyone else) cannot ask, hint, or suggest, a developer make the initial offer for conditional rezoning. Once a developer has volunteered to apply for a conditional rezoning, the rezoning agreement can be negotiated --with very strict limits on what can and can not be negotiated expressed in case law (mainly from other states). The local government should have their very experienced zoning attorney do so on behalf of the planning commisison and/or actively involved at the meetings on the conditional rezoning.
     (It is not "contract" zoning. That is something else, and is still illegal in Michigan, as well as most states.)
----Kurt H. Schindler