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. 5363 September 14, 1978 SUBDIVISION CONTROL ACT: Additional requirements imposed by municipalities Artificial lake supplied by well water Compulsory dedication of recreational land MUNICIPALITIES: Subdivision Control Act A municipality may not adopt an ordinance which provides that no subdivision plat shall be approved if it provides for an artificial lake supplied by well water. A municipality may not condition plat approval upon the dedication of recreational land to the municipality by the proprietor. A municipality may adopt an ordinance conditioning plat approval upon the dedication of all streets and roads in the plat to the public. Mr. William F. Hanna Office of Prosecuting Attorney Hart, Michigan 49420 You have requested my opinion as to the legality of certain provisions of Golden Township Ordinance No. 1, entitled Golden Township Subdivision Ordinance. The ordinance regulates the division of lots within existing subdivisions pursuant to authority granted by the Subdivision Control Act, 1967 PA 288, MCLA 560.101 et seq, MSA 26.430(101) et seq; and seeks to establish additional conditions for the approval of final plats of land within the township. The particular provisions in question are: 'Sec. 6. No subdivision plat shall be approved if it contains or abuts on or provides for access by lot owners to any artificial lake or any other body of water supplied in whole or in part by wells or artesian wells drilled after February 10, 1972. Approval shall likewise be denied if such lake or body of water is supplied by raising water from a lower body of water to a higher elevation. 'Sec. 7. No subdivision plat shall be approved unless all lots which appear to abut on any artificial lake or any other body of water extend to the water's edge. Approval shall likewise be denied unless such lake or body of water shall be dedicated either to the use of the lot owners specifically or to the public with access equal to 5% of the shoreline provided. 'Sec. 8. All streets and roads shall be dedicated to the public.' Section 105 of the Subdivision Control Act, supra, provides: 'Approval of preliminary and final plats shall be conditioned upon compliance with: '(a) The provisions of this act. '(b) Any ordinance or published rules of a municipality or county adopted to carry out the provisions of this act.' Section 106 of the Subdivision Control Act, supra, provides: 'No approving authority or agency having the power to approve or reject plats shall condition approval upon compliance with, or base a rejection upon, any requirement other than those included in section 105.' Section 259 of the Subdivision Control Act provides: 'The standards for approval of plats prescribed in this act are minimum standards and any municipality (1), by ordinance, may impose stricter requirements (2) and may reject any plat which does not conform to such requirements.' Ordinances adopted by a municipality under provisions of the Subdivision Control Act regulating the use of land are akin to zoning ordinances, and therefore an aggrieved party may attack a local ordinance regulating land use on the same grounds that courts have sustained challenges to zoning ordinances, these being: (a) the local unit of government has exceeded authority granted it by law or applicable enabling statute [see Clements v McCabe, 210 Mich 207, 177 NW 722 (1920)]; or (b) the local ordinance denies a property owner substantive or procedural due process, equal protection of the law, or constitutes a deprivation of property without payment of just compensation. See Kropf v Sterling Heights, 391 Mich 139, 215 NW2d 179 (1974). Thus, to successfully challenge the constitutionality of the ordinance, the aggrieved party must prove: "[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself or "[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question." Kirk v Tyrone Township, 398 Mich 429, 247 NW2d 848 (1976) quoting with approval Kropf v Sterling Heights, supra, 138. In applying the quoted principles, the Supreme Court utilizes four rules outlined in Kropf: 1. "[T]he ordinance comes to us clothed with every presumption of validity." 391 Mich 139, 162 quoting from Brae Burn, Inc. v Bloomfield Hills, 350 Mich 425, 86 NW2d 166 (1957) 2. "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property . . .. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness." 391 Mich 139, 162, quoting Brae Burn, Inc., supra. 3. '. . . Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted. . . .' 391 Mich 139, 162-163 4. "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. . . ." 391 Mich 139, 163, quoting Christine Building Co. v City of Troy, 396 Mich 508, 518, 116 NW2d 814 (1962). Kirk v Tyrone Township, supra, 439-440. Addressing the specific provisions of the ordinance, it is seen that: Section 6 of the township ordinance provides: 'No subdivision plat shall be approved if it contains or abuts on or provides for access by lot owners to any artificial lake or any other body of water supplied in whole or in part by wells or artesian wells drilled after February 10, 1972. Approval shall likewise be denied if such lake or body of water is supplied by raising water from a lower body of water to a higher elevation.' Examination of the Subdivision Control Act reveals no section or provision authorizing a municipality to reject a proposed or final plat for reasons set forth in the quoted section. Adoption of section 6 of the ordinance, being therefore in excess of authority granted the township, the section is invalid. Section 7 of the township ordinance provides: 'No subdivision plat shall be approved unless all lots which appear to abut on any artificial lake or any other body of water extend to the water's edge. Approval shall likewise be denied unless such lake or body of water shall be dedicated either to the use of the lot owners specifically or to the public with access equal to 5% of the shoreline provided.' The first sentence is in direct conflict with 1967 PA 288, supra, Sec. 136(e) which provides: 'When the subdivision is bounded by an irregular shoreline of a body of water, the bearings and distances of a closing intermediate traverse, extending across the plat so that it intersects the sidelines of the shore lots; the dimensions of the sidelines of the shore lots from the street line to the traverse line, and the distance from the traverse line to the water's edge as found at the time of the survey; distances along the traverse line between its intersections with the sidelines of the lots; the location of monuments at all angle points of the intermediate traverse. All lots extending to the water's edge shall be noted accordingly on the plat. If the proprietor intends to retain possession of the area between the intermediate traverse and the water's edge, a statement to that effect shall be noted on the plat.' The second sentence of the ordinance is likewise invalid. No provision of the Subdivision Control Act, supra, authorizes the municipality to require as a condition for plat approval the dedication, donation or deeding of lands or rights to land for public recreational purposes or payments in lieu thereof. Ridgemont Co. v East Detroit, 358 Mich 387, 100 NW2d 301 (1968); Gordon v Village of Wayne, 370 Mich 329, 121 NW2d 823 (1963); Enchanting Homes, Inc. v Rapanos, 4 Mich App 109, 143 NW2d 618 (1966). Section 8 of the ordinance provides: 'All streets and roads shall be dedicated to the public.' It is reasonable as a condition for plat approval for a municipality to require dedication to public use of all subdivision streets and streets providing access thereto. See Allen v Stockwell, 210 Mich 488, 178 NW 27 (1920); Ridgefield Land Co v City of Detroit, 241 Mich 468, 217 NW 58 (1928); see, also 66 Michigan Law Review 1, 25 'Public Control of Land Subdivision of Michigan: Description and Critique', R. A. Cunningham (1967 Nov); 52 Cornell LQ 871 'Constitutionality of Subdivision Control Exactions: The Quest for a Rationale', John D. Johnston, Jr. (1967). I do not find section 8 of the ordinance to be opposed to provisions of sections 137 or 182 of the Subdivision Control Act, supra, dealing with standards for roads within a proposed subdivision. Section 259 of the Subdivision Control Act, supra, provides the local unit of government with sufficient statutory authority to require such dedication as a condition for plat approval. Frank J. Kelley Attorney General (1)
(2)
Compulsory dedication of recreational land should not be construed to be a 'stricter requirement' inasmuch as such a condition of plat approval is unrelated to the purpose of requiring the filing of plats.