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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. 5851 February 10, 1981 STATE LANDS: Subject to special assessments TOWNSHIPS: Authority of township board to proceed with special assessment district Special assessments of state lands In the absence of a statute specifically authorizing it to do so, a township board may not levy a special assessment against state park lands for water and sewer improvements. The state park lands are not a part of the land area for the purpose of determining sufficiency of the petition for such a special assessment district. After it determines the sufficiency of the petition, a township board is vested with discretion whether to proceed with the petition and whether to proceed with the improvement to be financed by a special assessment district. Honorable Steve Andrews State Representative The Capitol Lansing, Michigan You have requested my opinion on several questions related to the installation of certain water main and sewer improvements by a township pursuant to 1954 PA 188, as amended by 1974 PA 143; MCLA 41.721 et seq; MSA 5.2770(51) et seq. Your questions are: 1. MCLA 41.723, Section 3(b) requires that an improvement not be made unless a petition is filed with the township board and in the case of water mains or sewers requires record owners of lands constituting at least 51% of the total land area in the special assessment district to sign the petition. May Burt Lake State Park, located in Tuscarora Township, be included in the special assessment district? 2. If Burt Lake State Park may not be included in the special assessment district, would the state be required to sign the petition mandated by the special assessment? If the state is required to sign the petition, who would sign on the state's behalf? 3. If Tuscarora Township cannot meet the 51% requirement necessary for petition approval without the inclusion of Burt Lake State Park, may the special assessment district be denied? 4. Should the township acquire 51% petition approval, is it mandatory for the township board to put the improvement into effect or can the board use their discretion to proceed? Your questions will be answered seriatim. 1954 PA 188, supra, Sec. 3(1), in pertinent part, provides: '(1) An improvement shall not be made hereunder unless a petition shall be filed with the township board, signed as follows: '(b) In case of water mains or sewers, . . . by record owners of lands constituting at least 51% of the total land area in the special assessment district as finally thereafter established by the township board. In a township with a population in excess of 2,000, after notification by mail to the owners of lands whose names appear on the latest tax roll, a petition shall not be required for water mains or sewers or erosion control structures or dikes and the township board may exercise the powers granted by this act on its own initiative in accordance with this act, . . ..' It is assumed for purposes of your questions related to the petition that the township population does not exceed 2,000 or that the township board does not desire to proceed under the optional provisions of the statute. OAG, 1977-1978, No 5358, p 603 (September 6, 1978), concluded that a municipality may not levy special assessments against state lands unless there is specific statutory authority permitting the municipality to do so. There appears to be no statutory authority for a township to specially assess state lands for purposes set forth in 1954 PA 188, supra, or in any other statute, and without such authority the township may not do so. It is my opinion therefore, that a township board is without statutory authority to include state lands within a special assessment district for water main and sewer improvements under 1954 PA 188, supra. Turning to your second question, 1954 PA 188, supra, Sec. 3(2) provides, in pertinent part, as follows: 'In determining the sufficiency of the petition, lands not subject to special assessment and lands within public highway and alleys shall not be included in computing frontage or assessment district area.' It is my opinion, therefore, that state lands may not be included in the calculation of land area for the purpose of determining the sufficiency of the petitions. The answer to your first two questions makes response to your third question unnecessary. In response to your fourth question, it is to be noted that 1954 PA 188, supra, Sec. 4, in pertinent part, provides: 'Upon receipt of a petition, or upon determination of the township board if a petition is not required by this act or any other applicable act, the township board, if it desires to proceed on the petition, shall cause to be prepared by a registered engineer, plans showing the improvement and the location thereof and an estimate of the cost thereof. Upon receipt of such plans and estimate, the township board shall order the same to be filed with the township clerk, and if it shall desire to proceed further with the improvement it shall by resolution tentatively declare its intention to make the improvement and tentatively designate the special assessment district against which the cost of the improvement or a designated part thereof is to be assessed. The township board shall then fix a time and place when and where it will meet and hear any objections to the petition, . . ..' [Emphasis added.] This section and subsequent sections vest the township board with discretion whether to proceed with the petition and whether to proceed with the improvement. It is, therefore, my opinion that a township board is not required to order the improvement to be made upon receipt of the petition. Frank J. Kelley Attorney General
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