The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

LOCAL HISTORIC DISTRICTS:

ORDINANCES:

Ordinance establishing contiguous historic district

Section 3(3)(b) of the Local Historic Districts Act does not require approval by petition of property owners before a local unit of government may, by ordinance, establish a contiguous historic district.

If a petition is filed by a majority of the property owners in a proposed contiguous historic district, section 3(3)(b) of the Local Historic Districts Act imposes a mandatory 60-day period following the filing of the petition before a local unit of government may pass an ordinance establishing a contiguous district.


Opinion No. 6952

September 9, 1997


Honorable George A. McManus, Jr.
State Senator
The Capitol
Lansing, MI 48913


You have asked whether section 3(3)(b) of the Local Historic Districts Act requires approval by petition of property owners before a local unit of government may, by ordinance, establish a contiguous historic district.

The Local Historic Districts Act, 1970 PA 169, MCL 399.201 et seq; MSA 5.3407(1) et seq (the Act), empowers counties, cities, villages, and townships to establish local historic districts. The title of the Act establishes its scope:

AN ACT to provide for establishment of historic districts; to provide for the acquisition of certain resources for historic preservation purposes; to provide for preservation of historic and nonhistoric resources within historic districts; to provide for the establishment of historic district commissions; to provide for the maintenance of publicly owned resources by local units; to provide for certain assessments under certain circumstances; to provide for procedures; and to provide for remedies and penalties.

See, Vernor v Secretary of State, 179 Mich 157; 146 NW 338 (1914).

The Act authorizes local units of government to establish, by ordinance, one or more local historic districts within their respective boundaries. Section 3(1). Provision is made for written notice to property owners within proposed historic districts and for public hearings "[n]ot less than 60 calendar days after the transmittal of the preliminary report" recommending establishment of proposed historic districts. There is no provision in the Act which requires property owner consent before a local unit of government may, by ordinance, establish a local historical district. OAG, 1995-1996, No 6919, p 215 (October 10, 1996). Rather, section 3(3)(b) of the Act provides that "[a]fter receiving a final report that recommends the establishment of a historic district or districts, the legislative body of the local unit, at its discretion, may introduce and pass or reject an ordinance or ordinances." (Emphasis added.)

In defining the term "historic district" for purposes of the Act, the Legislature provided that the term "means an area or group of areas not necessarily having contiguous boundaries. . . ." (Emphasis added.) Section 1a(e). The Legislature, however, has treated the establishment of proposed historic districts somewhat differently depending upon whether the proposed district is or is not contiguous. Section 3(3)(b), as amended by 1992 PA 96, restricts local units of government as follows:

(b) After receiving a final report that recommends the establishment of a historic district or districts, the legislative body of the local unit, at its discretion, may introduce and pass or reject an ordinance or ordinances. If the local unit passes an ordinance or ordinances establishing 1 or more historic districts, the local unit shall file a copy of that ordinance or those ordinances, including a legal description of the property or properties located within the historic district or districts, with the register of deeds. A local unit shall not pass an ordinance establishing a contiguous historic district less than 60 days after a majority of the property owners within the proposed historic district, as listed on the tax rolls of the local unit, have approved the establishment of the historic district pursuant to a written petition.

(emphasis added).

Section 3(3)(b), in its last sentence, provides for a mandatory 60-day period following the filing of an owner petition before the legislative body of the local unit of government may pass an ordinance establishing a contiguous historic district. Neither section 3 nor any other provision of the Act requires owner approval, by petition or otherwise, before a local unit may, by ordinance, establish a contiguous historic district. This office is advised that the foregoing interpretation is consistent with the construction of this statute by the Michigan Historical Center1, which has been summarized as follows:

The last sentence of 3(3), included in P.A. 96 by amendment, must be carefully read. It provides that if a petition of support, signed by more than 50% of the property owners in a proposed contiguous historic district, is presented to the local legislative body, then the local legislative body must wait sixty days before adopting an ordinance of designation for that district. Note that no petition is required; note also that the section does not address the issue of petitions in opposition, which do not trigger the waiting period. If a support petition is presented, the sixty day wait must be observed. After that time, the local legislative body is free to adopt, reject, or otherwise handle the proposed ordinance as if there had been no petition.

Michigan Historic Preservation Network, A Guide to Michigan's Local Historic Districts Act, 1994, p 3.

The administrative construction of a statute by the agency charged with administering it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons. Oakland Schools Bd of Education v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977).

It is my opinion, therefore, that section 3(3)(b) of the Local Historic Districts Act does not require approval by petition of property owners before a local unit of government may, by ordinance, establish a contiguous historic district. It is, however, my further opinion that if a petition is filed by a majority of the property owners in a proposed contiguous historic district, section 3(3)(b) of the Act imposes a mandatory 60-day period following the filing of the petition before a local unit of government may pass an ordinance establishing a contiguous historic district.



FRANK J. KELLEY
Attorney General

1 The Michigan Historical Center (formerly the Bureau of History), Michigan Department of State, is the state agency charged with administering the Local Historic Districts Act.