Michigan Advisory Opinions May 10, 1985: AGO 6293 (May 10, 1985)

AGO 6293.

You have requested my opinion on the following question with respect to the effect of a referendum vote, under MCL 125.271 et seq; MSA 5.2963(1) et seq, upon the subsequent reenactment by the township board of a similar township zoning ordinance:

Once a referendum on a township zoning ordinance has been petitioned for, certified, held and the electors of a township have rejected a zoning ordinance, may the township board of trustees shortly thereafter pass virtually the same ordinance which was rejected?

MCL 125.282; MSA 5.2963(12), provides:

'Within 30 days following the passage of the zoning ordinance, a petition signed by a number of qualified and registered voters residing in the portion of the township outside the limits of cities and villages equal to not less than 8% of the total vote cast for all candidates for governor, at the last preceding general election at which a governor was elected, in the township may be filed with the township clerk requesting the submission of an ordinance or part of an ordinance to the electors residing in the portion of the township outside the limits of cities and villages for their approval. Upon the filing of the petition, an ordinance or part of an ordinance passed by the township board shall not be invalidated until it is rejected by a majority of the registered voters located in the portion of the township outside the limits of cities and villages voting thereon at the next regular election which supplies reasonable time for proper notices and printing of ballots, or at any special election called for that purpose. The township board shall provide the manner of submitting an ordinance or part of an ordinance to the voters for their approval or rejection, and determining the result thereof.'

5 McQuillin, Municipal Corporations (3d ed), Sec. 16.70, p 237, relying on Cornell v Mayor & Council of Borough of Watchung, 49 NJ 235; 229 A2d 630 (1967), states in regard to the effect of a referendum election, as follows:

'[I]n the absence of a statutory or constitutional mandate restricting such procedure, a municipal council may enact an ordinance even though an essentially identical ordinance, previously passed by the council, was rejected in a referendum election.'

As noted by the Michigan Supreme Court in Advisory Opinion on Constitutionality of 1982 PA 47; 418 Mich 49, 66-67; 340 NW2d 817 (1983):

'It has been said by some courts that if the people disagree with a legislative amendment of voter-approved legislation their remedies are the (or another) referendum and, when the Legislature stands for re-election, the ballot.'

I am constrained to conclude, therefore, that in the absence of restrictive legislation, a charter township board may pass an ordinance similar to the ordinance which was rejected by the electors in a previous referendum election. It is my further opinion that the similar zoning ordinance is subject to referendum by the charter township electors.

Frank J. Kelley

Attorney General