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Health & Safety

Many of the differences between the Administration and the neighborhoods can be traced to their differing interpretations of the City zoning ordinances. The administration and its supporters on Council believe that the City is powerless to deny a site plan that technically complies with the area, height and placement requirements of a particular zoning district. We believe that the zoning ordinance requires much more.

The City Code provides the standards for approving a site plan in Chapter 57 section 5:122(6):

“Standards for site plan approval. A site plan shall be approved by the appropriate body after it determines that:

    (a) The contemplated development would comply with all applicable state, local and federal law, ordinances, standards and regulations; and

    (b) The development would 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 statement of impact set forth in this Chapter; and

    (c) The development would not cause a public or private nuisance and would not have a detrimental effect on the public health, safety or welfare.”

Apparently, the Council has been advised that the “public health, safety or welfare” standard was unenforceable. In a 1956 opinion, the Michigan Supreme Court held that  a zoning statute that allowed a city to deny a permit based on public health, safety or welfare concerns was unenforceable because the standard was so vague as to be no standard at all. That case was Osius v City of St. Clair Shores, 344 Mich 693; 1956 Mich. LEXIS 450 (1956). We believe this is the basis for the legal advice provided to the Council, but we cannot be sure because the communication from legal staff to Council is treated as confidential by this administration.

In our opinion, the problem with the reliance on Osius is that subsequent cases have dismissed (but not expressly reversed) that opinion. For example, seven years after Osius in Florka v City of Detroit, 369 Mich 568; 1963 Mich Lexis 504 (1963), the Michigan Supreme Court found that the Detroit planning commission had sufficiently clear standards under an ordinance that required the commission to determine whether a particular use was “not detrimental or injurious to the neighborhood.” The Court expressly dismissed Osius, leading us to believe that the Court would find harm to neighborhoods to be an adequate standard when rejecting site plans. Similarly, the Michigan Court of Appeals rejected a claim that an ordinance lacked sufficiently precise standards in Natural Aggregates Corp v Twp of Brighton, 213 Mich App 287; 1995 Mich App Lexis 409 (1995). In that case an ordinance required an administrative body to determine that a permit would “not detrimentally affect the public health, safety, morals and general welfare of the citizens of Brighton Township”. The Court found that this standard was sufficiently precise to pass constitutional muster. Again, the Court of Appeals expressly dismissed the holding in Osius.

Nonetheless, the cadre of pro-development Council members contend that they have no choice but to approve site plans because they cannot apply the public health, safety or welfare standard.

The question that remains is whether the Council will act to remedy what they consider to be constitutionally deficient standards expressed in section 5:122(6). The unenforceable standard has been brought to their attention and they have acted upon the belief that the standard is illegal. Will they cure the defect they have identified?

State Zoning Law

While the City Attorney has reportedly questioned the enforceability of the " public health, safety or welfare" standard in the City code, the State of Michigan requires the City zoning code to " promote the public health, safety, and general welfare", among other things. The State's adoption of a standard so similar to that found in our City code would appear to endorse that standard as acceptable.

MCL Section 125.3203,(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.