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Health, Safety and Welfare

The City Code provides the standards for approving a site plan in Chapter 57 section 5:122(6):

“Standards for site plan approval. A site plan shall be approved by the appropriate body after it determines that:

    (a) The contemplated development would comply with all applicable state, local and federal law, ordinances, standards and regulations; and

    (b) The development would limit the disturbance of natural features to the minimum necessary to allow a reasonable use of the land, applying criteria for reviewing a natural features statement of impact set forth in this Chapter; and

    (c) The development would not cause a public or private nuisance and would not have a detrimental effect on the public health, safety or welfare.”

Apparently, the Council was advised that the “public health, safety or welfare” standard was unenforceable. In a 1956 opinion, the Michigan Supreme Court held that  a zoning statute that allowed a city to deny a permit based on public health, safety or welfare concerns was unenforceable because the standard was so vague as to be no standard at all. That case was Osius v City of St. Clair Shores, 344 Mich 693; 1956 Mich. Lexis 450 (1956). We believe this is the basis for the legal advice provided to the Council, but we cannot be sure because the communication from the City's legal staff to the Council is confidential.

In our opinion, the problem with the reliance on Osius, is that subsequent cases have dismissed (but not reversed) that opinion. For example, seven years after Osius in Florka v City of Detroit, 396 Mich 568; 1963 Mich Lexis 504 (1963), the Michigan Supreme Court found that the Detroit planning commission had sufficiently clear standards under an ordinance that required the commission to determine whether a particular use was “not detrimental or injurious to the neighborhood.” The Court expressly dismissed Osius, leading us to believe that the Court would find harm to neighborhoods to be an adequate standard when rejecting site plans. Similarly, the Michigan Court of Appeals rejected a claim that an ordinance lacked sufficiently precise standards in Natural Aggregates Corp v Twp of Brighton, 213 Mich App 287; 1995 Mich App Lexis 409 (1995). In that case an ordinance required an administrative body to determine that a permit would “not detrimentally affect the public health, safety, morals and general welfare of the citizens of Brighton Township”. The Court found that this standard was sufficiently precise to pass constitutional muster. Again, the Court of Appeals expressly dismissed the holding in Osius.

Nonetheless, the cadre of pro-development Council members contend that they have no choice but to approve site plans because they cannot apply the public health, safety or welfare standard.

The question that remains is whether the Council will act to remedy what they consider to be constitutionally deficient standards expressed in section 5:122(6). The unenforceable standard has been brought to their attention and they have acted upon the belief that the standard is illegal. Will they cure the defect they have identified?

In January 2011, the City Council amended the zoning ordinances. In those area, height and placement amendments, the City affirmed its commitment to protecting the public health, safety and welfare.

5:112. Severability. 

(1) It is the legislative intent of the council in adopting this chapter that all provisions and sections thereof shall be liberally construed to protect and preserve the peace, health, safety and general welfare of the inhabitants of the City of Ann Arbor and, further, that should any provision, portion, section or subsection of this chapter be held to be unconstitutional or invalid, such holding shall not be construed as affecting the validity of any of the remaining provisions, portions, sections or subsections; it being the intent of the council that this chapter shall stand, notwithstanding the invalidity of any provision or section or any part thereof.