• Jack Eaton

Council decisions about site plans and zoning

Recently, I posted a comment about the Council’s affordable housing efforts. This post is to give some perspective to Council decisions about site plans and zoning. While it is easy to characterize Council members as either pro-development or anti-development, that is simply inaccurate.

The Michigan Zoning Enabling Act (MZEA) authorizes local units of government to adopt zoning ordinances. Section 201(1) of the MZEA provides that the purpose of zoning ordinances is to “regulate the use of land and structures” to accomplish a long list of community needs. It should be emphasized that the law that allows the City to having zoning ordinances is “use based,” not “form based.”

Section 203(1) of the MZEA requires local municipalities that wish to have zoning ordinances to have a master plan. While a master plan is not law, any zoning ordinance adopted by a community must be based on the master plan. Again, the MZEA provides that the purpose of the master plan is to address the use of land (not the form of buildings).

“Sec. 203. (1) A zoning ordinance shall be based upon a plan designed to promote the public health, safety, and general welfare, to encourage the use of lands in accordance with their character and adaptability, to limit the improper use of land, to conserve natural resources and energy, to meet the needs of the state's residents for food, fiber, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land, to ensure that uses of the land shall be situated in appropriate locations and relationships, to avoid the overcrowding of population, to provide adequate light and air, to lessen congestion on the public roads and streets, to reduce hazards to life and property, to facilitate adequate provision for a system of transportation including, subject to subsection (5), public transportation, sewage disposal, safe and adequate water supply, education, recreation, and other public requirements, and to conserve the expenditure of funds for public improvements and services to conform with the most advantageous uses of land, resources, and properties. A zoning ordinance shall be made with reasonable consideration of the character of each district, its peculiar suitability for particular uses, the conservation of property values and natural resources, and the general and appropriate trend and character of land, building, and population development."

Every property in the City has a zoning designation. When a site plan for a new project is proposed, the first question to be asked is whether the project is for a use that is permitted by the site’s zoning. If the proposed development is consistent with the permitted use, it is referred to as a “by right” project, because it proposes a use permitted by right. The project must also meet all applicable local, state and federal laws applicable to the project. For example, a project must conform to local natural features regulation, state and federal wetland regulation and state and federal environmental regulations. In addition to complying with the permitted use of the zoning district, the project must also comply with the area, height and placement regulations for the zoning district. Section 5.29.6 of the Uniform Development Code (UDC) includes the standards for approval of a site plan:

“D. Criteria for Site Plan Approval

“1. The Planning Commission or City Council shall make its decision on the site plan based on the following criteria:

“a. The contemplated Development shall comply with all applicable local, state, and federal law, ordinances, standards and regulations.

“b. The Development shall limit the disturbance of Natural Features to the minimum necessary to allow a reasonable use of the land, applying criteria for reviewing a Natural Features Plan as provided in Section 5.29.6G.

“c. The Development shall not cause a public or private nuisance and shall not have a detrimental effect on the public health, safety or welfare.”

Michigan court cases recognize that a site plan must comply with the city’s master plan, zoning ordinances, other local ordinances, state laws and federal laws. See, KI Properties v. Ann Arbor Township, Mich App No. 348010 (February 4, 2020) (unpublished).

When a developer proposes a project that is inconsistent with the current zoning for the site, the developer can petition to rezone the property. As noted previously, the MZEA requires zoning to be consistent with the master plan. Section 5.29.9 of the Ann Arbor Uniform Development Code (UDC) provides that rezoning should not be changed “except to correct an error, because of a change in municipal policy, or because of changed or changing conditions in a particular area or in the municipality generally…”

When a proposed development seeks to change the zoning of a single site, rather than an area, it is referred to as spot zoning. Spot zoning is generally recognized as improper because it does not conform with the zoning plan. In Penning v Owens, 340 Mich 355 (1954) the court described spot zoning:

“Upon a careful examination of the record we are of the opinion that the action of the township board was arbitrary and unreasonable and not in keeping with a plan of zoning as required by the enabling statute. A zoning ordinance or amendment of the present type creating a small zone of inconsistent use within a larger zone is commonly designated as ‘spot zoning.’ … Such an ordinance is closely scrutinized by a court and sustained only when the facts and circumstances indicate a valid exercise of the zoning power.”

The Court in the Penning case upheld a neighboring property owner’s challenge to the spot zoning. Carving out one property to be zoned differently than the surrounding properties must be based in the master plan.

Developers seek rezoning because it can save them substantial cost for a project. A property that is zoned for multi-unit projects is more expensive than properties that are zoned for less density. The potential use of a property is built into its value. Merely rezoning a property can dramatically increase the value of the land. It’s basically a give away to the developer.

The MZEA expressly permits the use of Planned Project Developments (PUDs). The MZEA authorizes a city to “establish planned unit development requirements in a zoning ordinance that permit flexibility in the regulation of land development, encourage innovation in land use and variety in design, layout, and type of structures constructed, achieve economy and efficiency in the use of land, natural resources, energy, and the provision of public services and utilities, encourage useful open space, and provide better housing, employment, and shopping opportunities particularly suited to the needs of the residents of this state.”

In exchange for the flexibility of PUD zoning, a community may require the development to provide public benefits that cannot be required of routine development of sites in established zoning districts. One of the public benefits that can be required is affordable housing.

In summary, zoning and site plan decisions are guided by established law. The City’s Master Plan is not “law,” but state law requires the City to follow its Master Plan in making zoning decisions. A review and revision of our Master Plan should follow the MZEA purpose of use-based zoning. When a site plan for a proposed development comes to Council, it should be judged by its compliance with the zoning district of the particular site, as well as the other local ordinances, state law and federal law requirements for the project. Where the project is inappropriate for the zoning district, a proposed change in zoning must follow the Master Plan. Council members take an oath of office that includes a promise to uphold the laws of the City, state, and country. Applying the law to zoning and site plan decisions isn’t optional.

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