What if it is not in the Zoning Ordinance?

Asked March 13, 2019, 9:10 AM EDT

It was my understanding that if there was no provision or exclusion in the adopted zoning ordinance, a use or construction could not be denied. Our city attorney and city manager recently stated at a public meeting that if it is not in the ordinance, it is not allowed. This is backwards to all my training and experience as it seems it would not allow something like brick if brick was not specifically mentioned and allowed. Is there law or a legal decision that defines how to deal with issues not in the zoning ordinance?

Oakland County Michigan

4 Responses

Good Afternoon:

The zoning ordinance is a living document and could not possibly cover every situation in a community. As the ordinance is administered, many things will arise that will need to be addressed by the legislative body or an interpretation by the Zoning Board of Appeals. If a use or standard is not listed in the zoning ordinance, it does not automatically become a By-Right Use.

I am not aware of a court case that addresses this issue, but this is a good question, and your municipal attorney will be able to provide you with the answer.

Thank you for this great thought-provoking question.

Have an Awesome day,

As I noted, the statement was made by the City Attorney at a City Council meeting so it would not make sense to ask for an interpretation from the person who stated it although asking for the legal reasoning and support of the statement is a consideration.
It seems to me that making denials or approvals based on something that is not documented by ordinance or law is not defensible as there is no grounds to do so. As I noted, can brick be denied because it is not specifically mentioned? I would think that legally it would be considered arbitrary and capricious unless there was at least a history of that particular decision being made in that manner.
This also goes against what I was told in two separate Citizen Planner training sessions, hence my question and concern that the Planning Commission and city are making arbitrary decisons that cannot be defended if challenged.

Good Day:

I have attached two links to the MSUE website regarding how decisions should be made by municipal officials.

Administrative decisions require careful application to ordinance standards: Part 1 Base decisions only on explicit standards in the ordinance to avoid a challenge of being unreasonable, arbitrary or capricious.


Administrative decisions require careful application to ordinance standards: Part 2 Base decisions only on explicit standards in the ordinance to avoid a challenge of being unreasonable, arbitrary or capricious.


Regarding your question: “As I noted, can brick be denied because it is not specifically mentioned?” I cannot answer this question because all zoning ordinances are different, and I need more specific details. Maybe you can provide me with more information regarding the community you live in, a link to your community’s zoning ordinance (even if, as you stated, the ordinance does not address this standard), and the specific details regarding the case that was reviewed by the municipal officials in your community.

Have a wonderful day,

Thank you for the response and links as they are very helpful. Perhaps I am reading too much into the provision that "the MZEA requires that if the requirements and standards for decisions are satisfied, the board, commission, or official must approve the request." If there is no specific requirement, or the ordinance is otherwise silent, it would seem that there is nothing to judge a proposal against and therefore no standard to satisfy, short of discretionary decisions which are generally far easier to claim as arbitrary, inconsistent, and subject to a challenge.
This is the link to our city Zoning Ordinance: http://www.villageofclarkston.org/DocumentCenter/View/548/Zoning-Ordinance-
The question came up not because of a specific property but because the ordinance was just amended to require Planning Commission review of residential properties which was not requried in the past. As written, the Planning Commission is only a recommending body so review and approval would also be required from the City Council, as well as the Historic District Commission if in the historic district.
Our city is only 1/2 square mile in area, population around 900 and only a few empty lots to build on although additions, renovations, demolition and new construction are always possibilities.
I believe the concern of the Planning Commission is that new constrction may in some way be inappropriate but without some guidelines for what is appropriate, I am at a loss as to how the decisions will be made and justified.
The actions and decisions of the HDC are by nature somewhat discretionary in keeping with the Secretary of Interior Standards and that most historic homes and properties were built prior to current standards so may not meet them.
By the way, I am currently a member of our city's Historic District Commission (HDC), the former chair, and a former City Council member. My education and profession is in architecture, engineering and planning.
Thank you again for the informatoin and response.