Michigan State University Extension Land Use Series energy system application should work closely with an experienced municipal attorney to satisfy all procedural due process requirements.
Substantive Due Process When regulating property, one of the major concerns in the United States is that the regulation is not too restrictive thereby infringing on a person's private property rights, or regulating areas of personal life outside of what is appropriate for government. Substantive due process has three key components: the substance of the regulation, that the regulation has a logical connection between the government's purpose and the regulation itself and that the regulation is the least amount possible while still achieving the public purpose of the regulation. Substantive due process is one of the constitutional rights found in the Fifth and Fourteenth Amendments of the United States Constitution.
Substance of the Regulation An initial consideration for determining if substantive due process is met is whether the issue is a legitimate one for the government to regulate. Not every issue is a legitimate subject for local government regulation. For example, local government regulation that infringes on constitutional rights, such as freedom of speech or freedom of the press, would be out-of-bounds for a local ordinance. The regulation has to have a rational government purpose, or further a legitimate governmental interest in preserving public health, safety, and welfare. A common example of this within zoning is sign regulation. The regulation of signs is permissible provided it is about placement, size, lighting and so on. If the regulation is based on the content of the sign, or what the sign says, that regulation conflicts with constitutionally protected free speech.7 Thus, regulation of signs must be content-neutral. Government cannot regulate what the sign says and cannot treat one sign differently than another based on what the sign says. Again, government must have the constitutional or statutory authority to regulate the subject in the first place.
Regulation Related to Purpose The second part of substantive due process is that the regulation relates to the government's purpose. In simple terms, that means the local government should be able to explain how the regulation accomplishes its purpose or goal. In Michigan, the master plan contains the vision, goals, objectives, and strategies upon which a zoning ordinance (regulation) is based. Within the master plan there are certain elements, comprising the zoning plan, which more directly tie regulations in zoning to goals and objectives in the master plan. Zoning ordinances include a zoning map dividing the municipality or county into various zoning districts. The zoning plan elements of the master plan should clearly show how the master plan supports the configuration of those particular geographic areas. Supporting elements of the master plan include text and existing land use maps and analyses, the future land use map, projections showing future housing, commercial and industrial needs, natural resource attributes for working lands and so on.
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Land Use Series: Sarnpk Zoningfor Wind Energy Systems I © Michigan State University Board of Trustees MSU Extension I October 6,2020 Page 4 of 49
