*Michigan Attorney General Issues New Opinion Regarding Virtual Public Meetings Under the Michigan Open Meetings Act and Americans with Disabilities Act

On February 4, 2022, the Michigan Attorney General, Dana Nessel, issued an Opinion stating that restrictions for virtual public meetings provided under the Michigan Open Meetings Act are preempted to the extent the restrictions prevent a public body from providing reasonable accommodations under the Americans with Disabilities Act.

Open Meetings Act

Traditionally, the Michigan Open Meetings Act, MCL 15.261 et seq., has authorized public officials to attend meetings virtually to accommodate the officials’ absence due to military duty. However, this exception was extended for a limited period of time, in response to the COVID-19 pandemic, to allow public officials to attend meetings virtually:

[To accommodate] military duty, a medical condition, or a statewide or local state of emergency or state of disaster declared pursuant to law or charter or local ordinance by the governor or a local official, governing body, or chief administrative officer that would risk the personal health or safety of members of the public or the public body if the meeting were held in person. MCL 15.263.

This extension expired on December 31, 2021. MCL 15.263(1)(c). Therefore, as of January 1, 2022, the Open Meetings Act only authorizes public officials to attend meetings virtually to accommodate the officials’ absence due to military duty. Id. The act no longer authorizes officials to attend public meetings virtually for a medical condition or a state of emergency / disaster. Id.

The Opinion acknowledges this restriction. However, the Opinion notes that accommodations for virtual attendance may be required for certain individuals under the Americans with Disabilities Act.

Americans with Disabilities Act

Under Title II of the Americans with Disabilities Act, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 USC 12132.

The Opinion interprets this language to require “state and local boards and commissions to provide reasonable accommodations, which could include an option to participate virtually, to qualified individuals with a disability who request an accommodation in order to fully participate as a board or commission member or as a member of the general public. . .” OAG 7318 (2022) (emphasis added).¹

To determine whether an individual qualifies for an accommodation under the Americans with Disabilities Act, the following requirements must be met:

1. the individual must have a qualifying disability that would affect the individual’s ability to physically attend the public meeting; and
2. the requested accommodation must be reasonable.

This is a fact-specific inquiry based on the individual’s disability and the public body’s resources, and it must be determined on a case-by-case basis.

Guidance for Compliance

The Opinion issued by the Attorney General is binding on state agencies but is non-binding on local municipalities and other public bodies. However, the Opinion is regarded as persuasive legal authority in court and therefore should be considered by public bodies when they receive a request for virtual meeting attendance as an ADA accommodation.

To ensure compliance under the Open Meetings Act and the Americans with Disabilities Act, public bodies should evaluate requests for accommodations using the following procedure:

1. Does the individual have a qualifying disability?

A qualifying disability includes a physical or mental impairment that substantially limits one or more of the major life activities of such individual. 42 USC 12102 (1)(A).

When virtual participation at public meetings is requested as an accommodation, the disability must affect the individual’s ability to physically attend the meeting.

2. Is the request for accommodation reasonable?

A request for accommodation is reasonable unless it requires a fundamental alteration in the nature of a program or imposes undue financial and administrative burdens. Smith & Lee Assoc, Inc v City of Taylor, 102 F3d 781 (CA 6, 1996).

This is also a fact-specific inquiry. Factors to consider when determining whether providing remote access to a public meeting is reasonable include:

• • Has the public body provided remote access to its public meetings in the past?
  • Does the public body have sufficient resources and knowledge to provide remote access to its public meeting?

Generally, a request to provide remote access to a public meeting would be considered a reasonable request in light of many public bodies’ experience and familiarity with the process during the COVID-19 pandemic. However, a request for a fully virtual option is more likely to be viewed as a fundamental alteration of a board’s or commission’s services, and therefore not required.

The public body should consider these factors if an individual has a qualifying disability and requests a reasonable accommodation to attend the public meeting virtually. We recommend the public body use caution when making this determination – especially if the individual is a member of the public body, as their in-person attendance is generally required under the Open Meetings Act.

*Information provided by FosterSwift Municipal Law News and shared with permission.

The League is sharing this information as a reference, but encourages you to work with your municipal legal representation for further clarification.

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at jrigterink@mml.org or 517-908-0305.

The Michigan Strategic Fund (MSF) recently approved program guidelines for American Rescue Plan funding appropriated to the Michigan Economic Development Corporation (MEDC) back in the fall.

The Revitalization and Placemaking (RAP) program utilizes $100 million in federal American Rescue Plan dollars to support investments that will repurpose vacant, underutilized, blighted or historic buildings and place-based infrastructure.

The RAP program will allow individual projects to apply for up to $5 million in support of their efforts to revitalize these now vacant spaces, while regional partners may also apply for up to $20 million to implement programs in support of their own local or regional revitalization strategies.

The program is intended to address a rise in vacancy rates throughout Michigan’s downtowns and commercial districts as the number of offices transitioning to remote or hybrid work settings increases, and investment is needed to repurpose or renovate buildings and regain vitality. More information can be found at https://www.michiganbusiness.org/rap/.

CDBG Public Gathering Spaces Initiative

The Public Gathering Spaces Initiative is a new program that supports the creation and expansion of public gathering spaces in low- and moderate-income communities across the state, supporting efforts that allow residents to gather, relax, celebrate and commemorate safely together.

This program will provide grants between $200,000 to $1 million for projects like farmers markets, parks, town squares, playgrounds and amphitheaters. The program addresses the shift toward a greater interest in and use of outdoor public spaces, recognizing the immense value they provide for community members of all ages and backgrounds to gather year-round. More information can be found at https://www.miplace.org/pgsi/.

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at jrigterink@mml.org or 517-908-0305.

Earlier today, Governor Whitmer signed a package of bills said to be vital to Michigan’s efforts to compete for transformational projects into law. The bipartisan supported bills create the Strategic Outreach and Attraction Reserve (SOAR) program which fully funds a historic economic development toolkit. These bills passed the legislature last week on Tuesday, December 14, 2021.

The governor signed House Bill 5603 to create a $1 billion economic development fund to ensure the state can compete for billions of dollars in investment and attract tens of thousands of jobs to bolster our economy.

The governor signed Senate Bill 771 to create a $500 million fund to make our economy more adaptable to the rapid pace of technological change, supporting small businesses, and creating or retaining good-paying jobs. 

Additionally, the governor signed Senate Bill 769 to create a financing mechanism for both programs and Senate Bill 85 to provide full funding.

Included in the package:

• $1 billion for two new MEDC job creation funds to use for cash incentives for large corporations and construction site improvements
• $409 million in grants for businesses affected by the COVID-19 shut-downs
• $140 million in emergency rental assistance
• $36 million for emerging health threats, including lead contamination in water lines in Benton Harbor and other communities in the state

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at jrigterink@mml.org or 517-908-0305.

As the state Legislature wrapped up for the year, no action was taken to extend the December 31, 2021, sunset in the Open Meetings Act allowing public bodies to meet remotely.

Starting January 1, 2022, any remote meeting accommodations previously allowable because of a local state of emergency declaration, or a public body member having a medical condition, will cease to exist. Only a member on active military duty will continue to have the option to participate remotely.

A municipality may offer a remote meeting option for the public, but can’t restrict the public to only participating in the meeting remotely. Talk to your municipal attorney for further clarification on this.

While there were a few bills passed over the last six months allowing certain public bodies to continue meeting remotely, local government public bodies were not included in those exemptions granted.

The League will continue to work on this important issue and provide updates as they become available. We encourage members to talk with their legislators on how returning to only in-person meetings may be affecting your municipality and public body members.

Act: Are your council members, citizens, and staff concerned about their health and  safety? Your state lawmakers in Lansing need to hear from you if you want the ability to hold remote meetings due to public health concerns. Click here to find your state Senator and go here to find your State Representative.

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at jrigterink@mml.org or 517-908-0305.

House Bill 4722 that passed the state House in the middle of the night on October 27th is seeing intense pressure from proponents to be taken up for a vote in the senate this week. The bill has been referred to the senate committee on regulatory reform. It could be scheduled for a hearing, or the bill could be discharged to the senate floor without committee action. Call you state senator today to voice your opposition.

If your community has taken the time to go through a public process to draft and adopt thoughtful short-term rental regulations, explain to your legislator why this one-size fits all approach will be detrimental to quality of life and exacerbate housing issues your community is already facing. If passed, the ability for 1 in every 3 homes to be turned in to a vacation rental business will be a reality. Municipalities will have no ability to prevent an oversaturation of this particular use in neighborhoods.

If you’re not a destination community facing issues with mini-hotels popping up in your residential areas, you should still be very engaged on this issue. It sets a dangerous precedent for the next special interest group to ask for a statewide zoning preemption. The bill also has farther reaching implications than just short-term rentals…

HB 4722 states “For the purposes of zoning, all of the following apply to the rental of a dwelling, including, but not limited to, short-term rental”, so while this bill is intended to deal with short-term rentals, it is opening up residential dwellings to any commercial activity as long as the rental is for terms of less than 30 consecutive days. What might a 29-day recurring lease allow in your residential zones that currently isn’t a use by right?

As stated in the bill:

• It is a residential use of property and permitted use in all residential zones;
• It is not subject to a special use or conditional use permit;
• It is not subject to a procedure different from those required for other dwellings in the same zone;
• It is not a commercial use of property.

Have a local rental inspection program? It would be impacted by this legislation too. HB 4722 states the rental of a dwelling is not subject to a procedure different from those required of other dwellings in the same zone. Will you be inspecting owner-occupied dwellings? The legislation also states if you have a rental inspection regulation, it can not have the effect of prohibiting short-term rentals. Would someone failing an inspection have the effecct of prohibiting that person from having a short-term rental even if temporary?

It is time for those negatively impacted by this bad policy to speak up. Would replacing residential dwellings people call home with places people visit and vacation impact an already struggling housing market? Impact your schools? Impact your local businesses trying to hire workers? Impact your neighborhoods and the quality of life of those living there? Reach out and get these groups who have a stake in housing and neighborhoods involved in opposing this bad policy.

Short-term vacation rentals should not be prohibited in communities, but like any land use they need to be regulated specific to the needs of that community, or not regulated if there’s not a need to. Too much of any one land use will have negative impacts on surrounding areas. HB 4722 allows short-term vacation rental companies to take over neighborhoods. There’s no balance. Voice your opposition today!

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at jrigterink@mml.org or 517-908-0305.

While most people were sleeping the state House passed House Bill 4722(H-11) by a vote of 55-48.

The legislation states a short-term rental is a residential use of property and a permitted use in all residential zones. It is not subject to a special use or conditional use permit or procedure different from those required for other dwellings in the same zone. It is not a commercial use of property. Furthermore, for the purposes of zoning, these changes include short-term rentals, but is not limited to just short-term rentals.

The bill allows a local unit of government to limit the number of units under common ownership used for short-term renting, but the limit set must allow for at least 2 units per person. While this may appear to allow municipalities to protect neighborhoods from an oversaturation of short-term rentals, the definition of common ownership is an issue. It states “ownership in whole or in part by the same individual, individuals, or legal entity“, so with minimal tweaking of ownership structures, setting up LLCs, someone would be able to have an unlimited number of short-term rental units in your community. This is not helpful.

The bill also states a local unit of government may limit the total number of units used for short-term rentals, but the limit has to be set at 30% (or higher) of the number of existing residential units in the community and the percentage shall be applied without regard to the location. This language would allow for approximately 1 in every 3 units to be a short-term rental. It does not give municipalities the ability to spread those short-term rentals throughout the community. Neighborhoods could be overrun with vacation rentals. Explain to your legislators how this provision will be administered and enforced at the local level. Ask your municipal attorney if a property right can be given to 30% of the people, but witheld from the remaining 70%? How do you decide who is given this right if you have more than 30% wanting it? This provision is ripe for litigation.

There is also a carve out in the bill for a local unit of government that, as of July 11, 2019, had zoning ordinance provisions that regulate the rental of dwellings by overlay district without distinction between short-term and rental for longer terms, the ability to continute to enforce those zoning ordinance provisions. If your Representative voted for this bill, does this carve out actually help your community, or did they vote to give one community the ability to continue to regulate the way they are now, but not you?

The following statement was released by Michigan Municipal League CEO and Executive Director Dan Gilmartin after the late-night vote.

“The after-midnight vote by the Michigan House of Representatives to pass House Bill 4722 is an attack on families and the communities they call home. For months, community leaders and their coalition partners throughout the state have proposed compromise legislation on the short-term rental bills that would allow for appropriate and safe rental units across Michigan. The bill approved in the dark hours of Wednesday morning ignores these solutions and instead opens the flood gates to unregulated commercial-style rental units on every block in every community in our state. Who gains from commercial interests getting full access to our residential homes for revenue generating short-term rentals? Commercial investors, out-of-town business interests, and real estate brokers. Who loses? You and your community.

“This calamity is entirely avoidable. This bill will pour lighter fluid on an already red-hot housing market should it become law, making it even harder for families to put roofs over their heads. Those voting yes on this legislation hold the responsibility for the entirely predictable and disastrous outcomes this measure will produce. Michigan residents deserve better. We implore the Senate to reject this rolling disaster headed to a neighborhood near you.”

The League will continue to diligently work this issue. Please thank your Representative if they stood strong by voting no, and engage your representative if they were a yes vote to make sure they understand the implications of what they supported. It is also time to talk to your Senator, so they have a full understanding of what the House has sent them for consideration.

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at jrigterink@mml.org or 517-908-0305.

Legislation balancing the necessity for communities to provide proper regulation and oversight over commercial enterprises in their neighborhoods while continuing to allow short-term rental properties in all communities was introduced today.

The “Good Neighbor Policy” legislation, House Bills 5465 and 5466 is supported by a coalition of organizations representing local government, public safety, the restaurant and lodging industry, economic development and more. The compromise legislation was initiated as an alternative to the harmful HB 4722, currently on the House floor, which eliminates all authority for municipalities to zone for short-term rentals and creates a top-down, one-size-fits-all approach for every community in the state.

Recognizing the value that this lodging option provides to communities, visitors and property owners, HB 5466 amends the Michigan Zoning Enabling Act to allow every property owner the ability to rent their property for up to 30 days per year in all residential areas, while allowing for reasonable zoning regulations. The legislation will help mitigate the impact on the state housing crisis, which is exacerbated by out-of-state companies purchasing homes solely for short-term vacation rentals. The bill creates greater parity between requirements and regulations among the unregulated short-term rental enterprises and other “typical” hotel and motel lodging.

HB 5465 establishes the Short-term Rental Regulation Act that requires all short-term rentals and hosting platforms, like AirBnB or VRBO, to register the property with the state Department of Licensing and Regulatory Affairs, allowing for improved awareness and regulatory enforcement. The properties are required to adhere to safety features, such as liability insurance, and on-site smoke and carbon monoxide detectors and fire extinguishers. Municipalities may enact reasonable regulations to protect health and safety, and proactively mitigate nuisance issues, such as noise, parking and traffic.

The League remains ready to work with all interested parties on a solution that provides a sensible compromise for Michigan communities, the economy and tourism industry while safeguarding property rights and the quality of life for residents.

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at jrigterink@mml.org or 517-908-0305.