Site Plan Review

What to do when the Zoning Ordinance and Master Plan Conflict

In its 1969 opinion, Biske v Troy, the Michigan Supreme Court offers guidance on weighting master plan goals against actual zoning ordinance, stating "Whether a zoning classification advances a city's master plan is a factor in determining reasonableness. It is, however, only one factor; it does not replace the balancing of interest required under an assertion of the police power. Some of the other factors to be considered are: the extent to which the goals of the master plan are advanced by the use limitations imposed on a given parcel of land; the stability of the master plan; the extent to which the master plan constitutes a commitment to a coherent development plan for the neighborhood which takes into account existing conditions and legitimate future expectations. While a master plan constitutes a general guide for future development, the validity of a zoning regulation must be tested by existing conditions."

In matters relating to simple site plan review, the police power or zoning ordinance takes precedent over the master plan. Although the master plan may be considered as a factor in site plan evaluation, it cannot be the only factor in denial or approval.

A Rationale for Rational Decision Making
Making and Documenting Zoning Decisions

How a Planning Commission makes its decisions is as important as the decisions it makes. So, how does one -- or, rather, should one -- evaluate an issue objectively, guard against arbitrary and capricious* conclusions, and ensure that, to the extent possible, the right decision is made. The process begins with some very helpful ground rules:

(The following is excerpted from the Michigan Township Association's Guide to Planning and Zoning.)

1. The commission should not hold private conferences prior to any meeting.

2. All comments should be directed trough the chairperson during the public hearing.

3. All deliberations should be conducted in the open.

4. The chairperson should ask each member to express his or her opinion.

5. The commission should not act hastily.

Point number 3 goes beyond the strict requirements of the Open Meetings Act to the imperative that the process be not just open, but also fair. Commissioners must remember that people are often suspicious of government and the commission should not add substance to that perception.

Using Standards of Review

The standards of review for a zoning application are based upon the zoning ordinance itself. The Township Zoning Act requires that every zoning approval be reviewed against the standards written in the zoning ordinance -- with the exception of of rezoning standards, which are part of a township board legislative action and generally not included in the ordinance (MCL 125.286d). There are several reasons why it must be clearly established that the planning commission considered the zoning ordinance's standards before taking action:

1. Decisions must not be arbitrary and capricious. Courts have little sympathy for townships that bend to the dictates of a vocal audience or take actions without sound reasoning.

2. Review standards can help focus discussion on those aspects of the request that are most important to the decision and avoid irrelevant personal, emotional or financial issues.

3. The reluctance to disappoint neighbors and friends can be a difficult issue for commission members. A decision based on consistently applied standards is much more likely to be accepted than one that isn't.

4. It is not enough to deny or approve an application because of a vague notion that the use is or is not a good idea or that it will harm the neighborhood.

5. The fact that many people attend the public hearing to oppose a project does not provide sufficient reason to deny an application.

Findings of Fact

One of the most effective means of documenting decisions is through a "finding of fact." A finding of fact is a concise statement supporting the action taken by commission members. It provides the rationale for decision making -- reinforcing the link between the decision and the review standards of the ordinance -- and should be completed for all actions, in particular those that are complicated or have a reasonable possibility of being litigated.

Findings of fact should be as specific as possible and relate directly to the provisions of the zoning ordinance, master plan or other related ordinances or documents use to support thee action taken.

Definitions:

Arbitrary and Capricious

The Michigan Supreme Court set forth the definitions of "arbitrary" and "capricious" in Goolsby v Detroit, excerpted here:

"Arbitrary is "'[Without] adequate determining principle ...Fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance,...decisive but unreasoned.'"

"Capricious is: " '[Apt] to change suddenly; freakish; [or] whimsical....' " [Id., quoting United States v Carmack]