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March 11 2019

Recent State Legislation May Require Local Ordinance Amendments and Policy Changes

By: James F. Scales

In 2018, the State passed several new laws which affect local zoning and other local ordinances. Some of these may require changes to your local ordinances.

Fireworks Legislation. In 2013, the Fireworks Safety Act was amended to legalize consumer fireworks such as bottle rockets, roman candles and firecrackers. It allowed municipalities to prohibit the discharge of these fireworks except on the day preceding, the day of, and the day after New Year’s Day, Martin Luther King Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Columbus Day, Thanksgiving and Christmas.

Public Act 635 of 2018, effective December 28, 2018, significantly reduced these protected times. Under Act 635, a municipality may now prohibit the discharge of fireworks anytime except between the hours of 11:00 a.m. and 11:45 p.m. on:

  • The Saturday and Sunday immediately preceding Memorial Day.
    June 29 through July 4.
  • July 5, if that date is a Friday or Saturday.
  • The Saturday and Sunday immediately preceding Labor Day.
  • New Year’s Eve, December 31, a municipality may not prohibit the discharge of fireworks from 11:00 a.m. until 1:00 a.m. on New Year’s Day.

If your community has previously adopted an ordinance limiting the discharge of fireworks to the formerly protected dates, it can now amend that ordinance to further restrict those dates.

Act 635 mandates a $1,000 fine - not more or less - for violation of a local ordinance restricting the discharge of consumer fireworks. It also requires that the penalty be distributed to the “local law enforcement agency responsible for enforcing the ordinance and prohibits any other penalty or cost. Therefore, if your community has an ordinance restricting the discharge of consumer fireworks, the penalty provisions of that ordinance must be amended to match the mandatory $1,000 fine now required by State law, and this needs to be done whether your community wants to further restrict the times for discharge of fireworks or not. Unfortunately, the $1,000 mandatory fine might be considered excessive by courts for a minor violation and might actually discourage law enforcement from issuing tickets because of the strict mandatory penalties. It would not be surprising if the State took action to change this to a “not to exceed” fine, and your ordinance amendment could be changed to take that possibility into account, so it is not necessary to amend it again.

Commemorative Signs. Public Act 506 of 2018, which takes effect March 28, 2019, provides that a zoning ordinance “shall not regulate or prohibit” a sign that is located on or within a building which commemorates a police officer, firefighter, medical first responder, member of the armed forces, correction officer or veteran of the armed forces who died in the line of duty. The law came about as a result of the City of Grand Rapids prohibiting banners commemorating police officers and members of the armed service which were displayed on a restaurant owned by a State legislator. The legislation is at odds with the 2015 United Supreme Court’s decision in Reed v Town of Gilbert, which discouraged content-based sign regulations. To skirt around that minefield, the best approach might be to add something like: “Signs exempt from zoning regulation under State law, including signs exempt under MCL 125.3205(d)” to the list of exempt signs in the zoning ordinance.

State-Licensed Residential Facilities. For many years, the Zoning Enabling Act has required that “a State-licensed residential facility” be treated as a residential use and allowed in residential districts. The term is defined to include structures licensed by the State under the Adult Foster Care Facility Licensing Act or licensed child care organizations that provide residential services to six or fewer individuals under 24-hour supervision or care. Public Act 513 of 2018, effective March 28, 2019, makes a similar exemption for private residences for four or fewer adults receiving benefit from a community mental health services program if the program “monitors the services being delivered in the residential setting,” thus the requirement for 24-hour supervision would not be required for these types of facilities.

These facilities must be allowed in residential districts whether the zoning ordinance says that or not. However, most zoning ordinances do specifically make these facilities permitted uses in their residential districts. Depending on how your community’s ordinance is written, it may be necessary for you to amend the ordinance to comply with the changes imposed by Act 513.

Emily” FOIA Amendment. Public Act 523 of 2018 made two changes to the Freedom of Information Act in response to the mass “Emily” FOIA requests for election records. One change requires that the request include the person’s complete name, address and contact information, including phone number and e-mail address. This could be helpful in contacting the person with questions.

The more important and helpful change is a new provision that if a deposit is not received within 48 days after the municipality sends out the notice that a deposit is required, then the request is considered abandoned and the public body is not required to fulfill it. This addresses the previous lack of any provision in FOIA regarding how long a request must be considered pending before the municipality can dispose of records in accordance with an approved record retention schedule. To take advantage of that, the notice of the deposit requirement must inform the requestor that the deposit must be received by a certain date, which is not less than 48 days after the notice is sent. This change should be incorporated into your FOIA policies and form response letters.

For those of you who have not heard back from “Emily,” you would need to send another notice in order to take advantage of this safe harbor under FOIA. It is a matter of judgment whether to do that or not; some communities don’t want to spur a response and are simply waiting 180 days or more after their initial response before disposing of election records.