blog, articles & publications

Email Warning/Disclosure Regarding the Michigan Open Meetings Act

Most municipal officials in Michigan know that under the OMA, members of a public body (such as a city commission, village council, township board, zoning board of appeals, board of review or planning commission) cannot deliberate toward any decision outside of a public meeting if a quorum is involved in those discussions or deliberations.  Furthermore, the Michigan courts have gone so far as to hold that even “one-on-one” deliberations between two members of a public body can constitute a prohibited deliberation (and a violation of OMA) where a “round robin” occurs.    Read More

Important Open Meetings Act Decisions

The Michigan Court of Appeals recently issued two unpublished opinions which may affect a public body’s obligations related to meeting in closed sessions under Michigan’s Open Meetings Act, MCL 15.261 et seq. (“OMA”).  The cases, Andrich v. Delta College Board of Trustees and Estate of Timothy Ader v Delta College Board of Trustees decided on June 5, 2018, found that when a Michigan public body elects to go into a closed session to “consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation” under MCL 15.268(e), the OMA requires the public body to identify beforehand on the record the specific litigation that it will be discussing.  Similarly, the decision further suggests that public bodies must be as transparent as possible when recording the minutes related to the content of the closed session meetings.  For instance, in Andrich, the closed session at issue resulted in the Board of Trustees’ acceptance of its legal counsel’s recommendation that the Board agree to a settlement within designated dollar parameters, which was subsequently formalized by resolution of the Board once back in open session.  However, the minutes of the open meeting reflected only that the Board accepted counsel’s unknown recommendation.  The Court found that, “to more fully comply” with the OMA, the Board should have informed the public in open session that it had authorized its counsel to settle the case “within certain parameters” without disclosing what those parameters were.  Read More

Michigan Department of Treasury Proposed Assessing Reform

The Michigan Department of Treasury released on May 3rd an “assessing reform proposal” that is intended to be introduced in the Legislature prior to its summer break. The stated goal of the proposed legislation is to improve the assessment profession through quality control. As drafted, the proposed bill could force many small assessing districts to “consolidate” their assessing departments, either with other assessing districts or under the county’s umbrella.

For an assessing district that does not use county assessing services, the State Tax Commission (“STC”) would mandate “substantial compliance” with various “quality standards,” including requiring the assessor of record to have attained either MMAO(4) or MAAO(3) level certification, to be responsible for assessing a certain minimum number of parcels and generated tax revenue (with some exceptions), and to provide full time service to an assessing district as an employee or contractor (with some exceptions).
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Open Meetings Act Violations and Later “Ratification”

The Michigan Court of Appeals recently reiterated that a public body has the authority to approve prior decisions of that public body which are void because of a violation under Michigan’s Open Meetings Act (the “OMA”).  In Lockwood v Township of Ellington (decided on March 13, 2018), the township failed to provide proper public notice of a rescheduled township board meeting at which two citizens were appointed to the township’s planning commission.  At a later (properly held and noticed) township board meeting, two other citizens were appointed to the planning commission instead.  The initial planning commission appointees subsequently filed a lawsuit against the township.  In upholding the township board’s later appointments, the Court of Appeals noted that an action taken at a meeting held in violation of the OMA has no force or effect; however, a public body may later “ratify” decisions that were made at that previous defective meeting.  In this case, the township board failed to later “ratify” the initial planning commission appointments, instead opting to appoint two different citizens at a later township board meeting.  Accordingly, the later appointments were found to be valid because, without “ratification,” the earlier appointments were void.  Read More

Constitutional Due Process and Equal Protection Challenges To Zoning Decisions

In a recent unpublished opinion, the Court of Appeals addressed the specificity with which local units of government should tailor zoning decisions to avoid constitutional violations.  In City of Holland v MCBR Properties, LLC, unpublished opinion per curiam of the Court of Appeals, issued January 11, 2018 (Docket No. 336057), the City’s Zoning Ordinance prohibited residential properties within a specific zoning district adjacent to Hope College from allowing more than six vehicles to be parked on a single property; this came to be known as the “six vehicle rule.”  Owners of affected properties challenged the six vehicle rule on constitutional substantive due process and equal protection grounds.  Read More

Seasonal Homes and the Michigan Principal Residence Exemption

The Michigan Court of Appeals recently ruled in favor of a municipality which denied a property owner’s petition for a “principal residence exemption” (“PRE”).  Under Michigan’s PRE, also known as the “homestead exemption,” a principal residence property can be exempted from the property tax levied by a local school district for school operating purposes.  To apply the PRE, a person must be a Michigan resident who owns and occupies the property as a principal residence.  Michigan statute defines “principal residence” as “the 1 place where an owner of the property has his or her true, fixed, and permanent home to which, whenever absent, he or she intends to return and that shall continue as a principal residence until another principal residence is established.”  Read More

Medical Marihuana Outdoor Cultivation

The Michigan Court of Appeals recently held that local zoning restrictions on outdoor medical marihuana cultivation are preempted by the Michigan Medical Marihuana Act (“MMMA”). In Charter Township of York v Miller, homeowners who were also MMMA patients constructed a backyard structure to be used for medical marihuana cultivation. The Township’s Zoning Ordinance expressly provided that, while residential property could be used by a medical marihuana cardholder for growing marihuana, the medical marihuana was required to be contained “within the main building” in an enclosed, locked facility.  This zoning restriction was consistent with the MMMA’s original cultivation restrictions; however, a 2012 amendment to the MMMA expanded the permissible cultivation locations to expressly include outdoor space. However, the Township argued that its broad zoning authority under the Michigan Zoning Enabling Act (“MZEA”) authorized it to prohibit entirely outdoor medical marihuana cultivation.  Read More

Freedom of Information Act Update

A recent Michigan Attorney General Opinion (No. 7300) sheds light on the current obligations of a public body under Michigan’s Freedom of Information Act (“FOIA”).  Read More

Rental Inspections

P.A. 169 of 2017 was approved by Governor Snyder in late November and takes effect on February 19, 2018.  P.A. 169 is an attempt to clarify existing law regarding the inspection of multiple dwellings and rooming houses. Under the Michigan Housing Law (the “Housing Law”) a “multiple dwelling” is a dwelling used as a private dwelling occupied other than by a single family or two families sharing the dwelling; a “rooming house” generally means a dwelling occupied by one or two families but which also has rooms leased to non-family members.  Read More

Legislative Alert - Two Notable Bills Headed to Governor's Desk

Two pieces of legislation are headed to the desk of the Governor and, if signed, could impact Michigan’s municipalities.  Read More