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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. 6466 September 14, 1987 DOWNTOWN DEVELOPMENT AUTHORITY: Attachment of noncontiguous territory to district Presentation of downtown development district plan to county board of commissioners A municipality is not authorized to attach a noncontiguous, unimproved parcel to a downtown development district by connecting the parcel by means of street rights-of-way. A municipality is obligated to present its downtown development authority plan to the county board of commissioners prior to its adoption by the municipality, but approval of the county board of commissioners is not a condition precedent to the municipality's adoption of the plan. Honorable Harry Gast State Senator The Capitol Lansing, Michigan 48909 Referring to the City of Benton Harbor, and citing the downtown development authority act, MCL 125.1651 et seq; MSA 5.3010(1) et seq, you have requested my opinion upon two questions, the first of which is: "May a unit of government attach to a downtown development district an unimproved and unrelated parcel of land where the latter is not contiguous to the downtown business district which does qualify for redevelopment under 1975 PA 197 [the downtown development act], by connecting the unimproved parcel to a street right-of-way which is primarily in an industrially zoned area?" The "City of Benton Harbor Downtown Development and Financing Plan" (DDA Plan), dated March 24, 1986, by legal description and the attached DDA Plan, Map A, describes the city's downtown development district as including two parcels of land connected by street rights-of-way. It is apparent from the attached map that the two parcels are not adjacent or contiguous. The city's DDA Plan, p 5, states: "The Development Area generally includes the central business district and Jean Klock Park." MAP C, found in the DDA Plan, does not illustrate the zoning designation for the Jean Klock Park parcel. (1) The DDA Plan, Map C, indicates that the two parcels are separated by an area zoned heavy industrial, and are connected only by street rights-of-way passing through the heavy industrial area. Map D, in the DDA Plan, indicates the proposed zoning for the Jean Klock Park parcel as "Water Recreational Development." The scale on DDA Plan, Map A, indicates that the two parcels are one-half to three-quarters of a mile distant from each other at their nearest points. Your first question is practically identical to the question posed in OAG, 1983-1984, No 6212, p 265 (March 29, 1984), to which you have referred in your correspondence. The district in the City of Benton Harbor Downtown Development and Financing Plan described above is not unlike the district described in OAG, 1983-1984, No 6212, supra. After quoting the definitive provisions of the downtown development act, OAG, 1983-1984, No 6212, supra, at pp 266-267, stated: "The title and purpose clause of 1975 PA 197, supra, expressly recite the intention of the Act to correct and prevent deterioration in business districts, to promote the economic growth of business districts, and to increase property tax valuation in business districts. By express definition in 1975 PA 197, Sec. 1, supra, a downtown district must be within a business district, and a business district means an area zoned and used principally for business. [Footnote omitted.] The focus of 1975 PA 197, supra, for the accomplishment of its stated purposes, is upon a business district zoned and used as such." (Emphasis added.) By comparison with the development plan district discussed in OAG, 1983-1984, No 6212, supra, and the provisions of the downtown development act, the Jean Klock Park parcel is neither zoned nor used for business; is neither within the central business district nor adjacent or contiguous to it, but is remote from it by one-half to three-fourths of a mile; is connected only by street rights-of-way; and is separated from it by heavy industrially zoned property. The Jean Klock Park parcel is, thus, not within the requirements of the downtown development act for the development or redevelopment of the city's business district. It is my opinion, therefore, that pursuant to the downtown development authority act, 1975 PA 197, MCL 125.1651 et seq; MSA 5.3010(1) et seq, a unit of government may not attach to a downtown development district an unimproved and unrelated parcel of land where the latter is not contiguous to the downtown business district, which does qualify for redevelopment under the downtown development authority act, by connecting the unimproved parcel to a street right-of-way which is primarily in an industrially zoned area. Your second question is: "Is the City obligated to present its plan to the Board of County Commissioners prior to its adoption in order for it to be legally created?" Section 14 of said Act, MCL 125.1664; MSA 5.3010(14), provides in pertinent part: "(4) Before the public hearing on the tax increment financing plan, the governing body shall provide a reasonable opportunity to the members of the county board of commissioners of a county in which any portion of the development area is located and to the members of the school board of any school district in which any portion of the development area is located to meet with the governing body. The authority shall fully inform members of the county boards of commissioners and of the school boards of the fiscal and economic implications of the proposed development area. The members of the county boards of commissioners and of the school boards may present their recommendations at the public hearing on the tax increment financing plan. The authority may enter into agreements with the county board of commissioners, the school boards, and the governing body of the municipality in which the development area is located to share a portion of the captured assessed value of the district." (Emphasis added.) Section 18 of said Act, MCL 125.1668; MSA 5.3010(18), provides, in pertinent part: "(2) ... The hearing shall provide the fullest opportunity for expression of opinion, for argument on the merits, and for introduction of documentary evidence pertinent to the development plan. The governing body shall make and preserve a record of the public hearing, including all data presented thereat." (Emphasis added.) MCL 125.1664; MSA 5.3010(14), does require that the governing body, before the public hearing, provide the county board a reasonable opportunity to meet with the governing body. The authority is required to "fully inform" the county board of the fiscal and economic implications of the proposed development area. A public hearing, after notice, is required, with the "fullest opportunity for expression," at which county boards of commissioners "may present their recommendations on the tax increment plan." (Emphasis added.) Unless the plan were submitted to the county board of commissioners, it is difficult to conclude that the county board would be "fully informed" with the "fullest opportunity for expression" upon which to make its recommendations, and if appropriate, enter into an agreement, as provided by MCL 125.1664; MSA 5.3010(14). It is my opinion, therefore, that the city is obligated to present its plan to the county board of commissioners prior to the city's adoption of the plan. It is my further opinion that approval of the county board of commissioners is not a condition precedent to the city's adoption of the plan. Frank J. Kelley Attorney General Attachment (1)
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