Agenda - Planning Commission - 09/06/2007

Home

Zoning Bulletin claiming, among other rhings, rhat the ordinance amounted to exclu- sionary zoning of land application sites and septage storage tanks. The tOwnship asked the COUIt for judgment wirhout a trial, which was granted. Houdek appealed. Decision: Affirmed. Generally, zoning ordinances were given the presumption of validity by COULLS. Because Houdek claimed the township had practiced exclu- sionary zoning, which asserts that a land use regulation was unconsri- rurional, the burden was on him to prove that there was no legitimate governmental interest served by the ordinance and that it arbitrarily ex- cluded an otherwise valid land use. To establish a violation, Houdek had to demonstrate that: 1) the challenged ordinance had the effect of totally excluding the land use within the township, 2) there was a demonstrated need for the excluded land use in rhe township or surrounding area, 3) the use was appropri- ate for rhe location, and 4) the use was lawfuL A review of rhe record revealed that there were twO sites in the wwn- ship that were approved for land application of septage at the time of the trial-and both were operated by Houdek. One was operated under a special use permit, and the other was grandfathered in when the ordi- nance was enacted. Because Houdek failed to show that the ordinance constituted a tOlal prohibition on the proposed use, the exclusionary zoning claim had to fail and the court did not have to look at the re- maining requirements. Nonetheless, the appeals court commented briefly on Houdek's argument that there was a demonstrated need for the use in the township. There was evidence in the record that the town- ship had arranged for at least two other area facilities to accept waste generated by the township, so the alleged need was not substantiated. In terms of the exclusionary zoning claim as it applied to the con- struction of septage storage structures, the appeals court found that such structures were permitted in the business district. Thus, Houdek failed to demonstrate that the zoning ordinance totally prohibited the use in the township, and, again, the rest of the requirements did nOt need to be ex- amined. All of the criteria had to be met for the claim to be valid. Ultimately, Houdek could not meet the stringent burden of proof to support the constitutional claims that were raised. The decision of the lower court was affirmed. See also: Adams Outdoor Advertising, Inc. v. City of Holland,. 463 Mich. 675, 625 nw.2d 377 (2001). Editorial Questions or Comments: west.quinlan@th()mson;com 12 136