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Non-Chartered Issues
What laws governs an Un-Incorporated or Non-Chartered Township in Michigan?
In the last two sentences of MCL 42.2 it states that MCL 41.1 - 41.103 applies to a Non-Chartered Township.
How do we get past these laws to be allowed to zone, enact ordinance, remove rights of people and interfere with the use of privately owned land?
Definitions Need to be understood when reading the laws.
MCL 41.1- 41.103 Also know the Revised Statutes of 1846
YOUR TOWNSHIP- IT’S AUTHORITY AND YOUR RIGHTS
Michigan has 83 counties, and 1242 townships. Township boundaries were originally drawn on maps to enable surveying and conveyance of land. Original townships were 36 square miles, but today, vary in size from less than one square mile to more than 600 miles. Michigan townships, like counties date back to the Northwest Ordinance of 1787.
Townships were made “governmental units” in 1827. While some counties have adopted and enforce zoning ordinances, Charlevoix County has not adopted a zoning ordinance.
Approximately 126 of the 1242 townships in Michigan are Charter Townships. As defined in Public Act 359 of 1947, a charter township requires a population of 2000 or more inhabitants. Many townships do not meet this requirement, do not qualify, nor are they incorporated. Not commonly known by many residents, many of our Northern Michigan Townships are classified as “general law townships”. There are limits to the authority of general law townships and it should be noted that there is a long standing lack of understanding relative to this type of government and what it’s authorities and limitations are. In a general law township, there is no mayor, no city council- they are governed by an elected township board.
General-purpose units are counties, cities, villages, and townships; all have an elected board as their legislative body.
General-purpose units of government operate with restricted power, that is, the unit's authority is granted by the state, either through the constitution or statute. Whether a unit is empowered to engage in an activity depends on whether the state has expressly granted it authority to do so. (By contrast, local governments in most western states operate with permissive power, that is, they may exercise any authority that the legislature has not expressly prohibited or restricted.) In Michigan, counties, townships, and villages begin as general-law units, but if they meet certain statutory requirements, they may change to charter (home-rule) units. By law, all cities are charter units.
General-law units may organize themselves and exercise authority only in the way that the state constitution and statutes have specifically set forth for this type of government
A Michigan village may establish itself, with voter approval, as either a general-law or (if its population is 750 or more) a home-rule (charter) unit. Although both types may levy up to 20 mills for operation, general-law villages are limited as to how they may use the millage: streets (5.0 mills), cemeteries (2.5 mills), and general government operation (12.5 mills). Of the 261 villages in Michigan, 213 are general law and 48 are home rule.
For these reasons, involved citizens are best served to know who is representing them and that through their deep sense of social responsibility in participating and becoming involved, hope to ensure and verify that the public servants whom they have entrusted to represent them share this sense of responsibility. The common desire, as citizens, is to ensure that their government is healthy, constructive, creative, and takes a practical approach regarding local government affairs.
MTA has learned that recall proceedings have been initiated for at least 41 elected officials from 13 townships across Michigan.
Only city and town legislatures may adopt zoning ordinances.
Zoning regulations, however, are often referred to as zoning ordinances regardless of these technical distinctions.
According to State mandate, every unit of government must adhere to a written Master Plan and adopt, and conform to a zoning map and zoning ordinance. Zoning, at any level must be authorized by some act of the legislature. In Michigan, this has been accomplished by: The County Zoning Act, the Township Zoning Act and the City and Village Zoning Act.
The Township Zoning Act (MCL 125.271-125.310) gives townships broad powers to enact and enforce ordinances. Zoning ordinances give townships the authority to regulate land use, while many other specific ordinances control activities that infringe on the rights of citizens.
Under state statutes, a Zoning Board of Appeals (ZBA) must be formed when a local legislature adopts its zoning law. They must consist of three to five members. The essential function of the zoning board of appeals is to grant variances. In this capacity it is in intended to protect landowners from the unfair application of the laws in particular circumstances. The zoning board of appeals also hears appeals from the decisions of the zoning enforcement officer or building inspector when interpretations of the zoning ordinance are involved.
The United States Supreme Court has recognized that the government may effectively "take" a person's property by overburdening that property with regulations. As stated by Justice Holmes, "[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co v Mahon, 260 US 393, 415; 43 S Ct 158; 67 L Ed 322 (1922). While all taking cases require a case-specific inquiry, courts have found that land use regulations effectuate a taking in two general situations: (1) where the regulation does not substantially advance a legitimate state interest, or (2) where the regulation denies an owner economically viable use of his land. Keystone Bituminous Coal Ass'n v DeBenedictis, 480 US 470, 485; 107 S Ct 1232; 94 L Ed 2d 472 (1987).
Most Michigan counties, townships, charter townships, cities and villages are organized around structural parameters that shall invoke the principles of “checks and balances” so that no one office or individual has unchecked authority. In verifying these checks and balances are intact, the documents that define the powers or authorities of each of the government officials should be compared to that unit’s definition of conflict or prohibited activities.
In respect to ZBA members the following should be noted: source: Township Zoning Act 184 of 1943 Section 18 (4)(6) Section 20
(4) A member of the board of appeals may be removed by the township board for nonperformance of duty or misconduct in office upon written charges and after public hearing. A member shall disqualify himself or herself from a vote in which the member has a conflict of interest. Failure of a member to disqualify himself or herself from a vote in which the member has a conflict of interest constitutes misconduct in office.
(6) A township board of appeals shall not conduct business unless a majority of the regular members of the board is present.
Sec. 20.
The township board of appeals shall act upon
all questions
as they may arise in the administration of the zoning ordinance,
including the interpretation of the
zoning maps, and may fix
rules to govern its procedures sitting as a board of appeals.
All meetings of the board of appeals shall be open to the public.
An elected officer of the township shall not serve as chairperson of the board of appeals. An employee or contractor of the township board may not serve as a member of the township board of appeals.
GLOSSARY OF COMMON TERMS:
Police Power. The police power is the power that is held by the state to legislate for the purpose of preserving the public health, safety, morals, and general welfare of the people of the state. The authority that localities have to adopt comprehensive plans, and zoning and land use regulations is derived from the state’s police power and delegated by the state legislature to its towns, villages, and cities.
Recusal. A term used when a board member has a conflict of interest and must abstain from voting on any issues relating to that private interest. The board member is said to be recusing himself from all deliberations on the matter.
Resolution. A resolution is ordinarily not a legislative act but a means by which a local legislature or other board expresses its policy or position on a subject.
Vested Rights. Vested rights are found when a landowner has received approval on a project and has undertaken substantial construction and made substantial expenditures in reliance on that approval. The landowner’s right to develop has vested and cannot be taken away by a zoning change by the legislature.
Procedures for the township’s financial administration, such as budgets, accounting, investments and deposits, are closely regulated by the state. Township meetings must comply with Michigan’s Open Meetings Act (MCL 15.261-15.275), and township records must be stored and made available in conformance with specific laws, such as the Freedom of Information Act (MCL 15.231-15.246).
Townships are employers and must participate in the Michigan Unemployment Insurance system. This fact sheet will assist township officials in determining which employee positions must be included in employee wage reporting.
A breif History of Municipal Charters
Municipal Charters - A Brief History - Jon Teaford
Municipal charters are the constitutions of municipal corporations, defining their powers and structures. Before the American Revolution, colonial governors granted municipal charters in the name of the monarch or the colony's proprietor. These colonial charters not only specified the powers of the municipal corporation but often granted it rights or property of considerable economic value. The charter of Albany, New York, awarded that municipal corporation a monopoly on the fur trade. New York City's charter bestowed on the island municipality a monopoly on ferry service and ownership of the underwater lands around lower Manhattan, thereby enabling the corporation to control dock and wharf development. In exchange for this generous grant, New York City paid the royal governor a handsome fee. During the colonial period a municipal charter was, then, a privilege, in some cases purchased from the crown's representative, and valued not simply for its grant of governing authority but also for its confirmation of a municipal corporation's property rights.
With the coming of American independence, the state legislatures succeeded to the sovereign authority of the crown and thus became responsible for the granting of municipal charters. Whereas in 1775 there were no more than fifteen active chartered municipalities in the thirteen colonies, the state legislatures of the early nineteenth century bestowed charters on every community with dreams of cityhood. From 1803 to 1848 the legislature of sparsely populated Mississippi awarded charter privileges to 105 municipalities, adopting 71 acts of municipal incorporation during the 1830s alone. These municipal charters authorized the creation of public corporations, political subdivisions of the state.
In 1819 in Dartmouth College v. Woodward, the U.S. Supreme Court introduced a distinction between the rights of a public corporation and a private one.
The U.S. Constitution's contract clause did not protect the political powers granted in the charter of a public corporation such as a municipality. State legislatures could, therefore, unilaterally amend or revoke municipal charters and strip a city of authority without the municipality's consent.
But the charter of a private corporation, such as a business enterprise or a privately endowed college, was an inviolate grant of property rights guaranteed by the nation's Constitution.
During the late nineteenth century, American courts reinforced the subordination of municipal corporations to state legislative authority when they embraced Dillon's Rule. In his standard treatise on the law of municipal corporations (1872), Judge John F. Dillon held that municipal corporations could exercise only those powers expressly granted by the state or necessarily incident or indispensable to those express powers. The municipal corporation was a creature of the state, and most courts interpreted Dillon's Rule to mean that city governments only possessed those powers specified by the state. Although the distinguished Michigan jurist Thomas M. Cooley postulated an inherent right of local self-government that limited the state's control over the municipality, American courts generally rejected this doctrine. Agreeing with Dillon, the late-nineteenth-century judiciary held that the words of the municipal charter defined municipal authority, and absent any authorization by the state, local governments had no right to act.
By the close of the nineteenth century, a growing number of states defined municipal powers not through individually granted charters but in general incorporation laws. Burdened by the necessity of dealing with hundreds of petitions for charter amendments, many states, beginning with Ohio and Indiana in 1851, adopted constitutional bans on special legislation regarding municipal government. Legislatures enacted general incorporation laws that were intended to provide a standard framework for municipalities throughout the state. Individual municipalities, however, continued to seek legislation tailored to their needs. Consequently, legislatures resorted to classification schemes, enacting "general" laws that only applied to a certain class of cities. State solons adopted legislation that applied exclusively to all cities of over 100,000 in population, even when only a single city was in that population class. The result was so-called ripper legislation that modified the charter powers or structure of a municipality for the benefit of one political party, faction, or economic interest.
Responding to this failure to eliminate special interest legislation, reformers campaigned for home-rule charters. Such charters were to be drafted by local commissions and then submitted to the city electorate for approval. Moreover, all charter amendments had to win the endorsement of local voters. The state legislature would not be responsible for enacting the local constitution; that power would rest in the hands of the people of the city. Corrupt special interests would no longer be able to hoodwink the legislature into approving a charter amendment adverse to the interests of the municipality.
Missouri's constitution of 1875 was the first to include a home-rule provision, and between 1879 and 1898 California, Washington, and Minnesota also adopted municipal home rule. The reform campaign accelerated during the twentieth century, and by the 1990s forty-eight states had granted home-rule authority to municipalities. At the close of the twentieth century, the municipal charter was a local creation adopted by local voters who could also amend the structure of municipal rule without re-course to the state legislature. Home-rule charters, however, were not declarations of independence, freeing municipalities from state authority. Under home-rule provisions, municipalities controlled local matters, but subjects of statewide concern remained the responsibility of the state legislatures.
This distinction between local and statewide concerns was the subject of considerable litigation during the twentieth century, as courts attempted to define the limits of home-rule authority. In addition, state administrative authority over local governments increased markedly during the twentieth century, compromising the supposed autonomy of cities operating under home-rule charters.
Bibliography
Hartog, Hendrik. Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870. Chapel Hill: University of North Carolina Press, 1983.
McBain, Howard Lee. The Law and the Practice of Municipal Home Rule. New
York: Columbia University Press, 1916.
McGoldrick, Joseph D. Law and Practice of Municipal Home Rule, 1916–1930.
New York: Columbia University Press, 1933.
Teaford, Jon C. The Unheralded Triumph: City Government in America, 1870–1900. Baltimore: Johns Hopkins University Press, 1984.
—Jon C. Teaford
Link to Michigan Laws: www.legislature.mi.gov
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