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. 5181

March 8, 1977

PLATS:

Requirement by County Road Commission of improvement of county roads as a condition of approval of a plat.

COUNTY ROAD COMMISSIONERS:

Requirement by County Road Commission of improvement of county roads as a condition of approval of a plat.

HIGHWAYS AND ROADS:

Requirement by County Road Commission of improvement of county roads as a condition of approval of a plat.

Although a County Road Commission may deny approval of a plat on the ground that the proprietor refuses to improve a county road within the plat submitted, the Commission may not refuse to approve the plat on the ground that the proprietor refuses to perform a road improvement on a county road adjoining or near the land contained within the plat.

Hon. Russell Hellman

State Representative

110th District

Capitol

Lansing, Michigan 48901

You have requested my opinion on the following question:

'Can the County Road Commission refuse to certify, restrict, or deny a plat of land to a prospective petitioner in order to compel the petitioner to perform road improvements on a county road in and around that plat of land?'

Relevant to your inquiry is section 183 of the Subdivision Control Act, 1967 PA 288, Sec. 183; MCLA 560.183; MSA 26.430(183), which, in part, provides:

'(1) The county road commission may require the following as a condition of approval of final plat for all highways, streets and alleys in its jurisdiction or to come under its jurisdiction and also for all private roads in unincorporated areas:

'(a) Conformance to the general plan, width and location requirements that the board may have adopted and published.

'(b) Adequate provision for traffic safety in laying out drives which enter county roads and streets, as provided in the board's current published construction standards.

'(c) Proper drainage, grading and construction of approved materials of a thickness and width provided in its current published construction standards.

'(d) Submission of complete plans for grading, drainage and construction, to be prepared and sealed by a civil engineer registered in the state.

'(e) Installation of bridges, culverts and drainage structures where it deems necessary.

mphasis added]

Under the above-quoted section a county road commission may require a proprietor to make improvements on roads in its jurisdiction or to come under its jurisdiction. Thus, the road commission may require that certain improvements be made on county roads within a plat as a condition to plat approval. See Allen v Stockwell, 210 Mich 488; 178 NW 27 (1929). However, a county may not take advantage of a proprietor's desire to improve his property by demanding that he pay for costs that are properly attributable to the county. Illustrative of this principle is Gordon v City of Warren Planning and Urban Renewal Commission, 388 Mich 82, 91; 199 NW2d 465 (1972), in which the Supreme Court quoted with approval the following statement of the Court of Appeals in the same case:

"The conceptual difference between requiring a yard setback for light and air (which the State need not pay for) and requiring that land be set aside for a public use (which, before it can be put to that use, the State must pay for) may not be readily explicable. It is, nevertheless, perfectly clear that there is a difference, a constitutional difference, between telling a property owner that he must provide space between his building and that of his neighbor and telling him to set aside land for possible future condemnation.

"Just as the taking of property without payment cannot, except in extraordinary circumstances, be justified as an exercise of the policy power, so too the State may not, in the name of the police power, require a property owner to refrain indefinitely and without payment from using and enjoying his property. The Michigan legislature did not, when it adopted zoning enabling legislation, ignore this constitutional limitation; it did not authorize local units of government to use the police power to require the reservation of property that a public authority might some day wish to condemn." 29 Mich App 309, 326-327. See also OAG, 1975-1976, No 4906, p ___ (November 10, 1975)

It will be noted that the 1967 PA 288, Sec. 183, supra, contains no provision that requires a proprietor to assume the cost of improving a county road not included within the plat. If the legislature were to authorize a county road commission to impose such costs, there would be a serious constitutional question of whether such a requirement would constitute a deprival of property without due process of law. It is therefore my opinion that, although a county road commission may deny approval of a plat on the ground that the proprietor refuses to improve a county road within the plat submitted, the commission may not refuse to approve the plat on the ground that the proprietor refuses to perform a road improvement on a county road adjoining or near the land contained within the plat. This conclusion, however, does not preclude the county road commission from imposing a special assessment based upon the apportionment of benefit in accordance with 1915 PA 59; MCLA 247.418 et seq; MSA 9.714 et seq.

Frank J. Kelley

Attorney General