Zoning moratoriums should only be done with caution

Local governments might adopt a moratorium to prevent development until after rules are established. This can be perilous and some may question if moratoriums are legal. Do so with caution and make sure the municipal attorney is directly involved.

With increasing frequency local units of government are adopting a moratorium to prevent anyone from developing or building something until the local government has had time to develop and adopt regulations concerning the activity. This is particularly true with medical marijuana compassion centers, or caregiver or distribution enterprises.

In Michigan, local government does not have authority to do anything unless the state legislature delegates that authority. Cities and villages have the broadest delegation of authority, townships are in the middle, and counties have the least. With authority come restrictions – such as not being able to do what has not been delegated. For other Michigan State University Extension news articles on limitations of authority see: Local wireless communication zoning further restricted | Metro Detroit public transit authority will be zoning exempt | Can local governments regulate oil and gas development?.

The problem in Michigan, some point out, is that there is not any statutory authority for local government to adopt a moratorium in the first place. This is a problem because the authority appears to be missing and there is not any specific procedure or process for enacting a moratorium – leading to questions about how it should be done.

 On the other side of the coin there are appellate level court cases that provide support for the idea that moratoria can be done in Michigan. (Rathkopf’s The Law of Zoning and Planning § 13:8 (4th ed.); Maintenance of status quo pending decision. Central Advertising Co v St. Joseph Township 125 Mich. App 548, 554-555 (1983).)

Other court cases include statements such as a “moratorium on the issuance of building permits in a particular district of a city for a reasonably limited time” was not voided by the court (Heritage Hill v Grand Rapids, 48 Mich. App 765, 768 (1973). Nor did the Michigan Court of Appeals find it to be legally offensive for a township to declare a “brief moratorium on all sewer connections” (BPA II v Harrison Township 73 Mich App 731, 733-734 (1977). Cf. Cummins v. Robinson Township, 283 Mich. App. 677, 770 N.W.2d 421 (2009).)

While courts have not struck down moratoriums in Michigan, there is not an appellate court that has upheld a moratorium in Michigan for longer than six months. Moratoria are supposed to be short, tied to a direct threat to the public health, safety and general welfare, given a specific start and end date, and then removed at the end of that date. Almost all of the medical marijuana moratoria have violated those criteria but no one has sued, that I am aware of, so courts have not had to consider the issue.

An old joke suggests a moratoria should always be shorter than the amount of time it takes for someone to file suit and have the case come up on the court’s docket. The goal being the moratoria should always be shorter than the adjudication of the law suit.

The serious and important point in this is a local government should never enact a moratorium without the direct involvement of a government’s corporate attorney, who should be experienced in municipal and land use law. This is particularly important because of the tricky aspects of law in this area, and because there may be question over authority to do so.

The second aspect of the moratoria question is the lack of directions on how it should be done. Normally, one would find such direction in enabling legislation. Because of the lack of specifics this is a question that should be directed to the corporate attorney who is experienced in municipal and land use law. It will be important that a moratorium is done in a way that the attorney is comfortable with, because he or she is the one that may have to stand to defend it on behalf of the local government.

Some guidance is proposed by Gerald A. Fisher, Esq., an attorney with many years and experience in municipal law. He suggests moratoriums are enacted by resolution:

“A resolution in effect encompasses all actions of the municipal body other than ordinances. Whether the municipal body should do a particular thing by resolution or ordinance depends on the forms to be observed in doing the thing and on the proper construction of the charter. In this connection it may be observed that a resolution deals with matters of a special or temporary character; an ordinance prescribes some permanent rule of conduct or government, to continue in force until the ordinance is repealed. . . . Thus, it may be stated broadly that all acts that are done by a municipal corporation in its ministerial capacity and for a temporary purpose may be put in the form of resolutions, and that matters on which the municipal corporation desires to legislate must be put in the form of ordinances.”

White Paper, A Local Government View Of the Michigan Medical Marihuana Act by Gerald A. Fisher, Esq. (Oct. 5, 2010); quoting McQuillin, The Law of Municipal Corporations.

As indicated above, the resolution should include the following points: moratorium of what; explain how it is tied to a direct threat to the public health, safety and general welfare; has a specific starting date; and a specific ending date.

Again, how it is done in a community is a question that should be directed to that community’s corporate attorney who is experienced in municipal and land use law.

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