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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. 5785 September 19, 1980 COUNTIES: Road commission--approval of a plat MUNICIPALITIES: Conditions for approval of plat PLATS: Conditions for approval of plat Governmental agencies, including county road commissions, may not require posting of bonds for any purpose other than to insure timely completion of streets and roadways as a condition for approving a plat. Richard E. Lomax Plat Section Department of Treasury Lansing, Michigan You have requested my advice concerning the following question: May governmental agencies under provisions of the Subdivision Control Act of 1967, 1967 PA 288; MCLA 560.101 et seq; MSA 26.430(101) et seq, require a plat proprietor to post security to apply for a period of time after completion of the installation of streets within the plat as a condition of approving the plat. 1967 PA 288, supra, Sec. 182 provides in part: '(1) The governing body of a municipality in which the subdivision is situated may require the following as a condition of approval of final plat, for all public and private streets, alleys and roads in its jurisdiction: (e) Completion of all required improvements relative to streets, alleys and roads or a deposit by the proprietor with the clerk of the municipality in the form of cash, a certified check or irrevocable bank letter of credit, whichever the proprietor selects, or a surety bond acceptable to the governing body, in an amount sufficient to insure completion within the time specified. '(2) As a condition of approval of the plat, the governing body may require a deposit to be made in the same manner as provided in subdivision (e) of subsection (1), to insure performance of any of the obligations of the proprietor to make required improvements. '(3) The governing body shall rebate to the proprietor, as the work progresses, amounts of any cash deposits equal to the ratio of the work completed to the entire project.' (Emphasis added.) In 1967 PA 288, supra, Sec. 183, the Legislature has provided in part: '(1) The county road commission may require the following as a condition of approval and 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: (f) Completion of all required improvements relative to streets, alleys and roads, or a deposit by the proprietor with the board in the form of cash, a certified check or irrevocable bank letter of credit, whichever the proprietor selects, or a surety bond acceptable to the board, in an amount sufficient to insure completion within the time specified. '(2) As a condition of approval of the final plat, the board may require a deposit to be made in the same manner as provided in subdivision (f) of subsection (1), to insure performance of any of the obligations of the proprietor to make required improvements. '(3) The board shall rebate to the proprietor, as the work progresses, amounts of any cash deposits equal to the ratio of the work completed to the entire project.' (Emphasis added.) As set forth in 1967 PA 288, supra, Sec. 105, the Legislature has provided that approval of plats shall be conditioned upon compliance with the provisions of the act, or any ordinance or published rules of a municipality or county, or published rules of a county drain commissioner, county road commission, or county plat board adopted to carry out the provisions of this act. 1967 PA 288, supra, Sec. 106, 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.' (See, however, 1967 PA 288, supra, Sec. 259.) Certain road commissions, we are informed, provide by rule, as a condition of plat approval, for retention of as much as ten percent of the security deposit, or ten percent of the estimated cost of improvements, for a period of one or more years after completion and acceptance of the road improvements. The reason advanced for such provisions is to guarantee that the work done is free of defects and additionally to secure repair of any damage subsequently occurring as a result of construction activity within the plat. While the above quoted provisions of the Subdivision Control Act authorize the affected municipalities or road commissions to require security in an amount sufficient to insure completion of all street, road or alley related improvements within a time specified and to standards specified, there is no authority for the governmental agencies, as a condition of plat approval to provide by rule or require by contract entered pursuant to such rule, for retention of any portion of such deposits after completion and acceptance of the improvements. 'Acceptance' being here used in the sense of approving the completed improvements as meeting requirements imposed under provisions of the Subdivision Control Act, 1967 PA 288, Sec. 182 and 183, supra. It is, therefore, my opinion that governmental agencies, including county road commissions, may not require posting of bonds for any purpose other than to insure timely completion of the installation of streets or roadways as a condition for approving the plat. Frank J. Kelley Attorney General
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