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Ordinances 101: What Every Municipal Official Should Know


By Michael D. Homier and Laura J. Garlinghouse

 

lawbooksWhat Is an Ordinance?
Cities and villages have the power to legislate—that is, to make laws. Cities and villages exercise their legislative power by adopting or amending ordinances. The power to legislate by adopting ordinances is expressly granted by the Michigan Constitution. Const 1963, Art 7, § 22. A properly adopted ordinance has the force and effect of law and is presumed to be valid.

Ordinances can cover a wide range of subjects, from regulating noise levels to defining zoning districts to adopting an annual budget. If a municipality wants to require or prohibit certain conduct—such as requiring leashes for dogs or requiring licenses for door-to-door solicitors—then the municipality should adopt an ordinance. Adopting an ordinance and following the publication requirements makes the rule public so that members of the community can act accordingly. 

How Are Ordinances Drafted?
In simple terms, an ordinance is a written document that defines the local law and provides penalties for violations. An ordinance typically has a descriptive title and begins with the phrase, “The City (or Village) of [Name] Ordains.” The body of each ordinance usually includes numbered sections that set forth the content of the ordinance and states when the ordinance takes effect.

The specific content of the ordinance depends entirely on the subject matter and whether it is adopted pursuant to a particular state law. For example, an ordinance regulating dangerous buildings should comply with the applicable provisions of the Housing Law of Michigan, Public Act 167 of 1917, MCL 125.538 to 125.541. An ordinance can regulate most subject matters, so long as the ordinance promotes the health, safety, and welfare of the people of the municipality and is not contrary to or preempted by other law.

How Are Ordinances Adopted?
The process for adopting an ordinance depends on the municipality’s charter and the state law under which the ordinance is adopted, if any. A city’s charter might, for example, require a public hearing before the adoption of any ordinance and require that notice of the public hearing be published within a certain amount of time before the hearing. Municipal officials should always turn to the charter first to see if it prescribes the manner for adopting ordinances.

State law imposes specific requirements for publishing ordinances. For home rule cities, all ordinances must be published before they are operative. However, instead of publishing a copy of the complete ordinance, a city may publish a summary of the ordinance, so long as the publication also designates the location in the city where a true copy of the ordinance can be inspected or obtained. MCL 117.3(k). For general law villages, an ordinance or a summary of the ordinance must be published within 15 days after it is passed. MCL 66.4. For home rule villages, an ordinance or a summary of the ordinance must be published before it becomes operative. MCL 78.23.

Importantly, some statutes impose special notice requirements with which a city or village must comply. When a municipality adopts a zoning ordinance or an amendment to a zoning ordinance, for example, a notice of ordinance adoption must be published within 15 days after the ordinance is adopted. MCL 125.3401. A city or village should always ensure that its ordinances are properly adopted and published in accordance with applicable law. 

How Are Ordinances Enforced?
An ordinance that requires or prohibits certain conduct is meaningless unless it can be enforced. A city or village may designate an ordinance violation as a misdemeanor that is punishable by a fine of up to $500 or imprisonment of up to 90 days, or both. MCL 117.4i; MCL 66.2; MCL 41.183. If the violation substantially corresponds to a violation of state law for which the maximum penalty is 93 days of imprisonment, then the misdemeanor may be punished by a fine up to $500 or imprisonment of up to 93 days, or both. Id. Cities and villages cannot adopt ordinances that impose penalties of more than 93 days in jail.

Alternatively, a city or village can enforce ordinances by making any violation of the ordinance a municipal civil infraction and imposing a civil fine for the violation. MCL 117.4l; MCL 78.25a. A municipal civil infraction means a violation of an ordinance that is not otherwise a crime. A violation of an ordinance is a municipal civil infraction only if it is so designated by ordinance. Thus, if a city or village wishes to be able to impose a fine for violations of the ordinance, the ordinance should state that a person who violates the ordinance is responsible for a municipal civil infraction and is subject to payment of certain minimum fines, plus costs and fees, for each violation. The process for issuing municipal civil infractions is set forth in Public Act 12 of 1994, MCL 600.8701 et seq. Additionally, a city or village can designate violations of the motor vehicle code and certain other statutes as civil infractions. MCL 117.4l; MCL 78.25a.

In some circumstances, a city or village may also wish to file a lawsuit for equitable relief when an ordinance is violated. For example, if a certain use of property violates a zoning ordinance, the city or village may wish to seek an injunction prohibiting the unlawful use. A violation of a zoning ordinance is a nuisance per se that may be abated by a court of competent jurisdiction. The Michigan Zoning Enabling Act also authorizes courts to enjoin uses that violate zoning ordinances. MCL 125.3407.

Can An Ordinance Be Amended After It Is Adopted?
A city or village can amend an ordinance at any time to change its provisions, add new provisions, or remove existing provisions. As with the adoption of ordinances, city and village charters may impose public hearing, notice, and publication requirements for amending ordinances. Likewise, statutes may provide requirements for amendments to particular types of ordinances. An ordinance must be amended through the adoption of another ordinance and not through an oral motion or resolution, and the ordinance adopting the amendments must be published in accordance with law. MCL 117.3(k); MCL 66.4; MCL 78.23. 

Conclusion
Every municipal official should understand how ordinances are adopted, enforced, and amended and should keep in mind that ordinance procedures vary depending on the municipality's charter and any state statute that may apply. A city or village attorney can provide valuable assistance by drafting ordinances, preparing summaries and notices, and ensuring that all legal requirements are met so that the ordinance is valid and enforceable.

 

Michael D. Homier is an attorney with Foster, Swift, Collins & Smith PC. You may reach him at 616-726-2230, 517-371-8120 or mhomier@fosterswift.com.

Laura Garlinghouse is an attorney with Foster, Swift, Collins & Smith PC. You may reach her at 616-726-2238  or  lgarlinghouse@fosterswift.com.

 

 

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