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 Opinion No. 5216 August 25, 1977 FARM LAND AND OPEN SPACE PRESERVATION ACT: Right to condemn property for farm land and open space preservation. CONDEMNATION: Right to condemn property for farm land and open space preservation. A governmental agency may not acquire property by condemnation for farm land and open space preservation. Honorable William Faust State Senator The Capitol Building Lansing, Michigan 48901 You have asked for my opinion as to whether the state or a local governing body may acquire by condemnation development rights to agricultural or open space lands. As a result of the decline in the amount of land used for agriculture in Michigan due to the development of agricultural land for other purposes, the legislature has enacted the Farm Land and Open Space Preservation Act, 1974 PA 116, MCLA 554.701, et seq; MSA 26.1287(1) et seq, hereafter referred to as 'the Act.' The Act seeks to encourage the preservation of the undeveloped character of certain property through tax incentives and to this end provides procedures whereby a private owner may voluntarily relinquish to the public the right to develop a particular parcel for a term of years in return for tax credits and exemption from special assessments. This is accomplished by the execution of either development rights agreements or development rights easements which are defined in section 2(4) and (5) of the Act, as follows: '(4) 'Development rights agreement' means a restrictive covenant, evidenced by an instrument whereby the owner and the state, for a term of years, agree to jointly hold the right to develop the land as may be expressly reserved in the instrument, and which contains a covenant running with the land, for a term of years, not to develop, except as this right is expressly reserved in the instrument. '(5) 'Development rights easements' means a grant, by an instrument, whereby the owner relinquishes to the public in perpetuity or for a term of years, the right to develop the land as may be expressly reserved in the instrument, and which contains a covenant running with the land, not to develop, except as this right is expressly reserved in the instrument.' Since the relinquishment of these rights is initiated by the land owner upon application to the appropriate governmental agency, it is obvious that the statutory scheme for the preservation of farm and open space lands is placed upon a voluntary basis. Thus, the Act does not contemplate acquisition of development rights over a land owner's objections, relying instead upon tax incentives. Moreover, the Act contains no provision authorizing the exercise of the power of eminent domain. It is therefore my opinion that a governmental agency may not acquire farm land and open space preservation rights by condemnation. Frank J. Kelley Attorney General