Amending a new Ordiance between 1st and 2nd readings #751134

What is the proper proceedure following a public bodies descsion to make an amendment to a new ordinance that has been recommend for approval by their planning commission. The amendment came about during the waiving of the second reading. During the waiving of the first reading the ordiance was discussed extensivly and a montion to table the motion was moved and seconded. During the vote on tabling the ordiance, a trustee became confused and vote in favor of the measure, although it was clear he was not. The following month, the trustees agreed to amend one section of the proposed ordinace and presented it as the new 1st reading of the ordinace, with a second reading to take place during their next board meeting. The ordiance was never sent back to the planning commission, so the public has not had an opportunity to weigh in on the revised ordiance. My question is does this follow the Enabling Zoning Act legislation? Thanks

Monroe County Michigan

Expert Response

My answer is assuming we are talking about a zoning ordinance, NOT a stand-alone ordinance (such as noise, rental inspection, etc., which would not need to go back to the Planning Commission or have another public hearing prior to adoption).

For a zoning ordinance (per the Zoning Enabling Act), once a public hearing has been held by the planning commission and the planning commission has passed a resolution recommending adoption of the ordinance to the legislative body (city/village council or township board), and, for townships ONLY, the ordinance has been reviewed by the county planning commission, then the legislative body takes action on the ordinance. If the legislative body wants SUBTANTIVE changes to the language (substantive is a legal term meaning more than just a typo, such as changing 'teh' to 'the', but changes that actually change provisions in the ordinance, such as 10 foot setback to 20 foot setback, etc.), they cannot just adopt it with changes. The legislative body must send the ordinance back to the planning commission with recommended changes and the planning commission, if they make the changes, must go through the entire due process again, including the public hearing, resolution, and county planning commission review. Ideally, these situations should be avoided entirely by making sure the liaison from the legislative body to the planning commission is communicating the ordinance development prior to formal action being taken to avoid costly delays. Additionally, having the ordinance reviewed by the township attorney can help avoid potential issues.

Any ordinance adopted by a legislative body where due process was not followed will almost certainly be found to be invalid, if challenged in a court.

If you need additional information or clarification, please let me know and I will be happy to assist.

Thank you for the response. The following section from the Zoning Enabling act was presented to me and in reading (401.5) it it seems to indicate the legislative body may pass an ordinace with or without amendments. Any clearity you can provide will be helpful.

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; notice mailed to airport manager; information to be included in notice; other statutory requirements superseded.

Sec. 401. (1) After receiving a zoning ordinance under section 308(1) or an amendment under sections 202 and 308(1), the legislative body may hold a public hearing if it considers it necessary or if otherwise required.

(2) Notice of a public hearing to be held by the legislative body shall be given in the same manner as required under section 103(1) for the initial adoption of a zoning ordinance or section 202 for any zoning text or map amendments.

(3) The legislative body may refer any proposed amendments to the zoning commission for consideration and comment within a time specified by the legislative body.

(4) The legislative body shall grant a hearing on a proposed ordinance provision to an interested property owner who requests a hearing by certified mail, addressed to the clerk of the legislative body. A hearing under this subsection is not subject to the requirements of section 103, except that notice of the hearing shall be given to the interested property owner in the manner required in section 103(3) and (4).

(5) After any proceedings under subsections (1) to (4), the legislative body shall consider and vote upon the adoption of a zoning ordinance, with or without amendments. A zoning ordinance and any amendments shall be approved by a majority vote of the members of the legislative body.

The process outlined in my previous answer is the best practice for addressing changes to an ordinance after it has been through a public hearing at the planning commission. I need to apologize for using the word "must", the would should have been "should" when sending it back to the planning commission. We always instruct from a best practices standpoint, but in this case, legally speaking, the legislative body can make changes without an additional hearing. Recourse for individuals against this course of action would be to petition the zoning ordinance as outlined in the Michigan Zoning Enabling Act.