Employee on PC, Ex-Parte Contact, Public Hearing Notice Error

Asked September 19, 2018, 10:42 AM EDT

Question 1: PERFORMING ROLE OF EMPLOYEE FOR THE TOWNSHIP AND ELIGIBILITY TO BE ON THE PLANNING COMMISSION:

MCL 125.3815 sec. 15 (5) states:…. Except as provided in this subsection, an elected officer or employee of the local unit of government is not eligible to be a member of the planning commission….

1.1 Does a person who is paid by the township to inspect and act as the building inspector and also performs many of the roles of the zoning administrator count as an employee and thus be ineligible to be a member of the planning commission?

I.2 If this person was ineligible and did, in fact, sit on the planning commission what would the repercussions be? Would their votes be found to be invalid? Question

QUESTION 2: PUBLIC HEARING NOTICE:

2.1 What is the number of days in advance of the meeting must a notice for a required Public Hearing be posted for the purpose of receiving public comments on proposed amendments to Zoning Ordinance?

2.2 If this time was not met (meaning it was not posted in time), what is the ramifications and how can they be cured?

2.3 If the incorrect date of a Public Hearing was published in the newspaper what are the ramifications and how can they be cured?

2.4 For a public notice for a ZBA action, can variances from other ordinance provisions be given at the meeting if the public hearing notice and agenda do not state them? For example, the public hearing notice and agenda cite a specific ordinance for a dimensional variance for front yard and state those specific words. At the meeting the applicant, in their presentation, states that they also want permission for their commercial development to be able to have their only entrance on a private road. Can that be discussed and voted on in that meeting? Or would another public hearing have to be held? (I note that many citizens came afterward and were very upset that they didn’t know that the additional item would be added or approved)

2.5 If, in fact, a new public should have been held and wasn’t and the item was given a variance, what is the remedy? Question

QUESTION 3: EX-PARTE CONTACT:

MCL 125.3815 sec. 15 (5) states that a Trustee must be a member of the planning commission.

3.1 Is a trustee allowed to vote on an item at both the planning commission and the township board? (For example a zoning ordinance amendment, PUD, etc)

3.2 Trustees, as elected officials, have a greater latitude in communicating with the public. We are told as planning commissioners we should avoid all ex parte contact. If a trustee had meetings and discussion with a PC applicant about a project prior to it coming in front of the PC would it be appropriate for the trustee to be a part of the discussion and vote on the project? This is the scenario: The township supervisor, the building inspector (who is also a PC member) and the township trustee who is the PC member have a meeting to ‘get the project through’ prior to the PC meeting. This was not disclosed to the other PC members prior to the meeting, nor was the discussion and details of the meeting disclosed. The employee/PC member and trustee/pc member participated in the PC meeting and advocated for the development. I, as a PC member was very uncomfortable with the ex parte contact and advocacy and felt that they should not have participated in this item however I did not know what to do. I note that the bylaws state that ex parte contact is not allowed

Oakland County Michigan community planning and zoning

1 Response

Question 1: PERFORMING ROLE OF EMPLOYEE FOR THE TOWNSHIP AND ELIGIBILITY TO BE ON THE PLANNING COMMISSION:

MCL 125.3815 sec. 15 (5) states:…. Except as provided in this subsection, an elected officer or employee of the local unit of government is not eligible to be a member of the planning commission….
1.1 Does a person who is paid by the township to inspect and act as the building inspector and also performs many of the roles of the zoning administrator count as an employee and thus be ineligible to be a member of the planning commission?

For the person that is paid by the township, I would recommend that you review that person’s employment contract to determine if the person is a contractor or an employee of the township.

There could still be conflicts of interest and ex-parte contact due to the employee or contractor acting as zoning administrator and a member of the planning commission.

I would also recommend that you review the Planning Commission Bylaws regarding Membership on the Planning Commission.

I am not an attorney, so I would recommend that you consult with your township attorney regarding this concern.

I.2 If this person was ineligible and did, in fact, sit on the planning commission what would the repercussions be? Would their votes be found to be invalid? Question

Section 125.1830 (9) of the Planning Enabling Act refers to removal of planning commission members and conflict of interest.

Also refer to your Planning Commission Bylaws.

QUESTION 2: PUBLIC HEARING NOTICE:

2.1 What is the number of days in advance of the meeting must a notice for a required Public Hearing be posted for the purpose of receiving public comments on proposed amendments to Zoning Ordinance?

ARTICLE I GENERAL PROVISIONS

125.3103 Notice; publication; mail or personal delivery; requirements. Sec. 103. (1) Except as otherwise provided under this act, if a local unit of government conducts a public hearing required under this act, the local unit of government shall publish notice of the hearing in a newspaper of general circulation in the local unit of government not less than 15 days before the date of the hearing. (2) Notice required under this act shall be given as provided under subsection (3) to the owners of property that is the subject of the request. Notice shall also be given as provided under subsection (3) to all persons to whom real property is assessed within 300 feet of the property that is the subject of the request and to the occupants of all structures within 300 feet of the subject property regardless of whether the property or structure is located in the zoning jurisdiction. Notification need not be given to more than 1 occupant of a structure, except that if a structure contains more than 1 dwelling unit or spatial area owned or leased by different persons, 1 occupant of each unit or spatial area shall be given notice. If a single structure contains more than 4 dwelling units or other distinct spatial areas owned or leased by different persons, notice may be given to the manager or owner of the structure, who shall be requested to post the notice at the primary entrance to the structure. (3) The notice under subsection (2) is considered to be given when personally delivered or when deposited during normal business hours for delivery with the United States postal service or other public or private delivery service. The notice shall be given not less than 15 days before the date the request will be considered. If the name of the occupant is not known, the term "occupant" may be used for the intended recipient of the notice. (4) A notice under this section shall do all of the following: (a) Describe the nature of the request. (b) Indicate the property that is the subject of the request. The notice shall include a listing of all existing street addresses within the property. Street addresses do not need to be created and listed if no such addresses currently exist within the property. If there are no street addresses, other means of identification may be used. (c) State when and where the request will be considered. (d) Indicate when and where written comments will be received concerning the request. History: 2006, Act 110, Eff. July 1, 2006;Am. 2008, Act 12, Imd. Eff. Feb. 29, 200

ARTICLE IV ZONING ADOPTION AND ENFORCEMENT

125.3401 Public hearing to be held by legislative body; conditions; notice; approval of zoning ordinance and amendments by legislative body; filing; notice of ordinance adoption;

(7) Following adoption of a zoning ordinance or any subsequent amendments by the legislative body, the zoning ordinance or subsequent amendments shall be filed with the clerk of the legislative body, and a notice of ordinance adoption shall be published in a newspaper of general circulation in the local unit of government within 15 days after adoption

(9) The notice required under this section shall include all of the following information: (a) In the case of a newly adopted zoning ordinance, the following statement: "A zoning ordinance regulating the development and use of land has been adopted by the legislative body of the [county, township, city, or village] of __________.". (b) In the case of an amendment to an existing zoning ordinance, either a summary of the regulatory effect of the amendment, including the geographic area affected, or the text of the amendment. Rendered Sunday, September 30, 2018 Page 9 Michigan Compiled Laws Complete Through PA 336 of 2018  Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov (c) The effective date of the ordinance or amendment. (d) The place where and time when a copy of the ordinance or amendment may be purchased or inspected. (10) The filing and publication requirements under this section supersede any other statutory or charter requirements relating to the filing and publication of county, township, city, or village ordinances. History: 2006, Act 110, Eff. July 1, 2006;Am. 2008, Act 12, Imd. Eff. Feb. 29, 2008.

2.2 If this time was not met (meaning it was not posted in time), what is the ramifications and how can they be cured?

2.3 If the incorrect date of a Public Hearing was published in the newspaper what are the ramifications and how can they be cured?

The Zoning Enabling Act in General Provision states:

125.3103 Sec. 103. (1) The local unit of government shall publish notice of the hearing in a newspaper of general circulation in the local unit of government not less than 15 days before the date of the hearing.

The village is violating the Zoning Enabling Act if the published notice for the hearing was less than 15 days before the date of the hearing, and the notice has the wrong property address.

The village will have to publish a notice of the hearing that is not less than 15 days before the hearing and with the correct property address.

Following the noticing requirements of the Zoning Enabling Act is very important. The findings of a public hearing are not legal unless properly noticed based on the requirements in the Zoning Enabling Act.

2.4 For a public notice for a ZBA action, can variances from other ordinance provisions be given at the meeting if the public hearing notice and agenda do not state them? For example, the public hearing notice and agenda cite a specific ordinance for a dimensional variance for front yard and state those specific words. At the meeting the applicant, in their presentation, states that they also want permission for their commercial development to be able to have their only entrance on a private road. Can that be discussed and voted on in that meeting? Or would another public hearing have to be held? (I note that many citizens came afterward and were very upset that they didn’t know that the additional item would be added or approved)

Public Noticing and another public hearing needs to be held for permission for the commercial development to be able to have their only entrance on a private road.

2.5 If, in fact, a new public should have been held and wasn’t and the item was given a variance, what is the remedy? Question

125.3605 Decision as final; appeal to circuit court. Sec. 605. The decision of the zoning board of appeals shall be final. A party aggrieved by the decision may appeal to the circuit court for the county in which the property is located as provided under section 606.

QUESTION 3: EX-PARTE CONTACT:

MCL 125.3815 sec. 15 (5) states that a Trustee must be a member of the planning commission.

3.1 Is a trustee allowed to vote on an item at both the planning commission and the township board? (For example a zoning ordinance amendment, PUD, etc)

3.2 Trustees, as elected officials, have a greater latitude in communicating with the public. We are told as planning commissioners we should avoid all ex parte contact. If a trustee had meetings and discussion with a PC applicant about a project prior to it coming in front of the PC would it be appropriate for the trustee to be a part of the discussion and vote on the project?

This is the scenario: The township supervisor, the building inspector (who is also a PC member) and the township trustee who is the PC member have a meeting to ‘get the project through’ prior to the PC meeting. This was not disclosed to the other PC members prior to the meeting, nor was the discussion and details of the meeting disclosed. The employee/PC member and trustee/pc member participated in the PC meeting and advocated for the development. I, as a PC member was very uncomfortable with the ex parte contact and advocacy and felt that they should not have participated in this item however I did not know what to do. I note that the bylaws state that ex parte contact is not allowed

Due to ex-parte contact, if the Trustee is going to vote on the project at the Planning Commission Meeting, to avoid ex-parte contact and possible potential conflicts of interest, I would recommend the Trustee not have contact with the applicant before the Planning Commission Meeting, as it relates to the project under review by the Planning Commission. Or if the Trustee has contact with the applicant, they do not talk about the project, and the Trustee informs the Planning Commission that he has had contact with the applicant, but they did not discuss the project under review by the Planning Commission.

I would also recommend you refer to the Bylaws for the Planning Commission and the Board of Trustee Bylaws

I am not an attorney, so I would also recommend that you consult with your township attorney regarding this concern.

I hope these answers were helpful.