Michigan planners get updates on court and legislative action

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by Cynthia Price
Legal News

Professional planners are dependent on a clear understanding of current law to do their jobs.

Because there is a lot at stake, people who plan for the future uses of land in their communities, whether as volunteer planning commissioners, municipal staff, or paid consultants, must know the current status of court decisions and legislation, pending or enacted. Everything planners do or propose to do is governed by statute, both in an overarching sense as far as what they are permitted to do by such laws as the Michigan Zoning Enabling Act, and in all the devilish details regarding individual issues.

That is why the statewide “Planning Michigan” conference of the Michigan Association of Planning (MAP) was rife with legal education and issues sessions.

The three-day conference is taking place at the Amway Grand Hotel in Grand Rapids and runs through Friday, Oct. 21.

Sessions touching on legal issues ranged from an in-depth overview of potential legislation called the Regional Councils Act, to status reviews of the Michigan Medical Marihuana Act and wind site review ordinances, to Legal Aspects of Zoning and Planning sessions of Citizen Planner, Michigan State University Extension’s popular program to educate appointed planning commissioners and others with an interest in learning about planning.

But probably the most highly-anticipated session is one given yearly by Mark Wyckoff, FAICP, who is a professor at Michigan State University, director of the Planning and Zoning Center there, and senior associate director at the affiliated Land Policy Institute.

In an earlier interview, Wyckoff said that most years he does a rapid-fire review of the previous 12 months in land use and planning court opinions, pending legislation, and enacted laws, “usually about a minute each.” But this past year, he said, an important legal story has played out, and he intended to devote more time to it.

As planners filtered in to his session, there was conjecture that he would focus on this very issue, which most of them (Wyckoff included) referred to in shorthand as “sand and gravel.”
And indeed he did. The July 2010 Michigan Supreme Court decision in Kyser v. Kasson Township overturned a previous decision by that same court almost 30 years earlier.

The decision concerns the right to extract minerals, including sand, gravel, gypsum, limestone, copper, iron ore,  and other substances. In  the 1982 Silva v. Ada Township decision, the Michigan Supreme Court justices held that, since minerals could only be extracted where they existed, local governmental units had no right to forbid extraction activities in cases where there were “no very serious consequences.”  This stringent standard had prevailed ever since.

Kasson Township, which is basically sitting on top of mineable sand and gravel everywhere, had crossed all its T’s and dotted its I’s in laying out a detailed plan for where mining could take place. When a resident whose husband had died wanted to allow extraction on her property, despite having turned down that right when the sand-and-gravel-mining area was developed, the trial court and the Court of Appeals upheld her right to do so based on the “no-very-serious-consequences” rule.

However, the current Supreme court, which was inundated with amicus briefs on both sides, determined that the earlier court erred, in that there was no legislative or constitutional language that created such a standard and the previous court had “made up a rule.”

Many commentators last year expressed their pleasure over this decision, regarding it as righting an overreaching court mandate.

But the battle was not over.

Legislators in conversation with mining industry lobbyists introduced legislation that gives the “no-very-serious-consequences” rule the force of law. PA 113 reinstitutes basically the provisions of the Silva v. Ada Township decision.

Jim Ferro, the longtime planner for Ada Township who also introduced Wyckoff, said the decision was before his time, but its repercussions have weighed heavily on Ada just as
elsewhere.

Some advocates were able to add provisions to PA 113 that might soften its blow, including a list of factors that might be considered “very serious consequences,”  such as impact on property values. Though, Wyckoff said, “Those might give you a fighting chance,” there is still some question whether PA 113 will move forward unchallenged.

Wyckoff then moved on to dozens of instances of additional court cases and land use legislation.

In Hendee v. Putnam Township, for example, the court ruled that the case was not “ripe” when a developer who had been turned down twice sued while he still had a third application pending. Only after all administrative remedies had been pursued could he take the government to court.

In Big Dipper Entertainment v. City of Warren, the court ruled that an ordinance aimed at regulating the secondary effects of adult businesses, in conjunction with the availability of reasonable alternative avenues of expression, made some limitations on those businesses acceptable.

A Sixth Circuit Court of Appeals decision in Hussein v. City of Perrysburg (Ohio), which is precedential, held that it should not be considered threatening behavior if a building inspector lays out the consequences of a developer disregarding ordinances.

As far as legislation, he mentioned SB 195, introduced but not passed, which would permit local governments to give density bonuses to developers that included affordable units as part of a residential development, as well as pending tweaks to Michigan Renaissance Zone and Tax Increment Financing laws.

Wyckoff co-presented on Thursday with Richard Norton of the University of Michigan on the draft Regional Councils Act, which proposes consolidation of the three separate statutes authorizing regional planning commissions.

This draft language was written by the MAP Law Committee, which is vetting it with stakeholders prior to its possible introduction.

MAP, whose executive director is Andrea Brown, AICP, is, “operationally and organizationally,” a chapter of the American Planning Association (APA). It has over 3500 members, and resulted from a merger years ago of the existing APA chapter and the Michigan Society of Planning Officials.

Education director Amy Miller Jordan said that the organization sponsors ongoing training and education for its membership year-round, culminating in the conference.

Of course, another pressing concern for planners is funding, since it is often planning departments that get cut first in tight times. But planners and a wide range of other stakeholders believe that should not be the case.

Grand Rapids’ own Planning Director Suzanne Schulz presented along with Jon Lynch, City Manager of Midland, formerly a planner. Their session, “Translating Talent into Triumph: Amplifying the Influence of Community Planners,” was held at 1:00 on Wednesday, immediately after people checked in at registration. It was nonetheless well-attended.

Participants heard Schulz talk about how best to demonstrate the worth of the planning department, which she feels consists primarily of “moving forward the vision of the community.” She detailed the Ten Planner Super Powers, which started off with being “communicator, facilitator, translator, problem-solver, convener, developer of shared ownership.” She passed along some of the tricks of the trade which have made Grand Rapids Planning Department a leader in obtaining community input and implementing what community members say.

Lynch gave his often humorous ideas on how planners add value to local government goals. He cautioned that if planners are not telling their own story, someone else will step in to fill the gap, using as an example an anecdote about a well-reported print media story that lost all relation to reality as it went viral over the Internet.

Wyckoff also edits the highly-respected Planning and Zoning News Explaining that publishing that magazine is done in addition to, and outside of, his MSU position, he asked that people who would like to write on land use and planning issues for the magazine send their topics of interest, and credentials, to him at wyckoff@
pznews.net.
             

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