MSU Extension Planning

Local units of government sometimes adopt moratoria to prevent anyone from developing or building something until regulations concerning the activity are developed and adopted. This has occurred in Michigan with marijuana facilities, signs and billboards, scrapyards, and wind and solar energy generation systems, to name a few.

In Michigan, there is no statutory authority for a local government to adopt a moratorium. This is a problem because there is no specific procedure or process for enacting a moratorium – leading to questions about how it is done.

Guidance from case law

Case law does provide some guidance, though. The U.S. Supreme Court has recognized the legitimate use of moratoria (Tahoe-Sierra, U.S. (2002)), and there are many appellate level court cases in Michigan that provide support for the idea that moratoria can be done (e.g., Central Advertising Co. v St. Joseph Township 125 Mich App 548, 554-555 (1983)). In one case, “a moratorium on the issuance of building permits in a particular district of the city for a reasonably limited time” was not voided by the court (Heritage Hill v Grand Rapids, 48 Mich App 765, 768 (1973)). Nor did the Michigan Court of Appeals find it to be legally offensive for a township to declare a “brief moratorium on all sewer connections” (BPA II v Harrison Township, 73 Mich App 731, 733-734 (1977)).

Conditions for a valid moratorium

While Michigan courts seem to support a local government authority to enact moratoria, a specific moratorium must be undertaken in good faith and of a reasonably short duration so as to not violate due process or constitute prior restraint on speech (Bronco's Entm’t v Charter Township of Van Buren, 421 F3d 440 (6th Cir 2005)).

Moratoria are supposed to be short, tied to a direct threat to public health, safety and general welfare, given a specific start and end date, and then removed at the end of that date. A moratorium for more than one year will likely be viewed skeptically.

An old joke suggests a moratorium should always be shorter than the amount of time it takes for someone to file a lawsuit and have the case come up on the court’s docket. The goal being the moratorium should always be shorter than the adjudication of the lawsuit.

The serious and important point is that a local government should never enact a moratorium without the direct involvement of the government’s attorney, who should be experienced in municipal and land use law. This is particularly important because there may be questions about the government’s authority to enact a moratorium.

There may also be questions on how it is done. Normally, one would find such direction in enabling legislation, but this is lacking in Michigan. Therefore, it is important that a moratorium is enacted in a way that the attorney is comfortable with, because they will be the one to stand to defend the local government if challenged.

Ordinance vs. resolution: Which applies?

Under the doctrine of legislative equivalency, an ordinance can only be amended or repealed by another ordinance. “An ordinance or resolution cannot be amended, repealed, or suspended by another act by a council of less dignity than the ordinance or resolution itself” (McCarthy v Village of Marcellus, 32 Mich App 679, 688-689; 189 NW2d 80 (1971)). This suggests that a moratorium must be enacted by adopting an ordinance that details the temporary prohibition of the land use in question.

That said, there are Michigan appellate court cases that have upheld moratoria enacted by resolution, generally citing the temporary and short-term nature of moratoria. The Michigan Supreme Court clarified: “[T]he difference between municipal ordinances and resolutions is in what the actions do, rather than in the manner in which they are passed. Resolutions are for implementing ministerial functions of government for short-term purposes. Ordinances are for establishing more permanent influences on the community itself” (Rollingwood Homeowners Corp v City of Flint, 386 Mich 258, 264; 191 NW2d 325 (1971)).

Essential elements of a moratorium ordinance

It is important that the text of the moratorium include specific content on:

• The narrow subject to which the moratorium applies.
• An explanation as to how the moratorium addresses a direct and immediate threat to public health, safety and general welfare.
• Findings of fact that support the public health, safety and welfare threat.
• A specific starting date.
• A specific ending date.
• Anything else the local government’s attorney believes is important to convey.

For additional procedural considerations with respect to enactment of a moratorium, see the MSU Extension article, “Caution: Zoning moratorium ahead.”

Resources for local governments

Michigan State University Extension offers educational programs for local government officials on roles, responsibilities, and best practices in government functions and operations, including planning and zoning, budget and finance, and public administration. Contact an MSU Extension Government and Community Vitality educator to learn more about related educational opportunities and resources.