State preemption and local zoning authority in Michigan: The role of legislative intent
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EmailAbsent an overarching statute preempting certain activities from zoning regulations, Michigan courts follow a test to determine legislative intent. In short, if there is no sign of legislative intent, local zoning prevails.
Michigan local governments are delegated power from the state to regulate uses of land in order to protect public health, safety and welfare. Yet state government also exempts certain activities from zoning regulation. For instance, townships and counties are prohibited from regulating oil and gas wells under Section 205(2) of the Michigan Zoning Enabling Act. There are many other land uses and activities for which the state outright preempts or partially preempts zoning authority (see the Michigan State University Extension resource Restrictions of Zoning Authority).
A frequent question from local government on this topic is whether state-owned land and buildings are exempt from zoning regulations. There are various Michigan statutes that exempt certain operations or buildings of the state from local zoning (e.g., state prisons); however, the Legislature has never adopted an overarching statute that exempts all state-owned land, structures and buildings from zoning. Absent a specific reference in law that an aspect of state operations is exempt from zoning authority, that authority applies and the state-owned land, building or use is subject to zoning.
This is not always so clear, and there are sometimes disputes over zoning authority between local governments and State of Michigan departments that land in the courtroom. When this happens, Michigan courts follow a test called the legislative intent test. The legislative intent test is explained as follows:
- First, the court looks for language in statute that clearly reads the state has “exclusive jurisdiction” over local zoning authority.
- If explicit language does not exist, then the court looks for language that expresses the clear legislative intent to grant exclusive jurisdiction to the state by reviewing the applicable enabling statutes of both the state and the local government.
- If legislative intent to exempt the state from zoning does not exist, then the local zoning regulations prevail.
In applying the legislative intent test, no consideration is given to the merits of the state entity or the local government. In other words, the strict application of the legislative intent test by Michigan courts does not consider the virtues of the state project at hand, nor does it consider the concerns of local government. A court “may not rewrite the plain statutory language or substitute its own policy decisions for those decisions already made by the Legislature,” according to Slis v Michigan, 332 Mich App 312, 336 (2020).
The supremacy of zoning authority over certain state land uses is supported by case law. For instance, in two different cases (Twp. of Burt v Dept. of Natural Resources, 459 Mich 659, 593 NW2d 534 (1999) and Crystal Lake Property Rights Assoc v Benzie County, 280 Mich App 603, 760 N.W.2d 802 (2008)) Michigan Department of Natural Resources boat launches were held to not be exempt from local zoning.
Concerning the broader issue of state preemption of local regulation, an ordinance is preempted if it is in direct conflict with state statute. RPF Oil Co v Genesee Co, 330 Mich App 533, 538 (2019) offers additional determinations:
- “A local regulation directly conflicts with a state statute if the regulation permits what the statute prohibits or prohibits what the statute permits.”
- “State law may preempt a local government’s law either through a direct conflict or through occupying the field of regulation which the municipality seeks to enter.”
At the same time, “an ordinance is not conflict preempted as long as its additional requirements do not contradict the requirements set forth in the statute.” In DeRuiter v Byron Twp, 505 Mich 130, 147 (2020), a local ordinance was not preempted by statute where restrictions imposed by the ordinance “add[ed] to and complement[ed] the limitations imposed by the [statute]” and the restrictions did not effectively prohibit the activity permitted by the statute.
If you have questions about local zoning authority and state preemption, explore the MSU Extension resource Restrictions on Zoning Authority. State statute and the issue of preemption can be clear at times but can also be less clear and factually nuanced. For more information on a specific subject or legal advice, consult a municipal attorney. Municipal attorneys can be found through the Michigan Bar Association.
