STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6667

November 13, 1990

ANNEXATION:

Property separated from city by a contiguous parcel which has been conditionally transferred to city

MUNICIPALITIES:

Authority to annex property separated from city by a contiguous parcel which has been conditionally transferred to city

Property outside of a city's limits may not be annexed to the city if the property in question is separated from the city by a contiguous parcel that has been previously conditionally transferred to the city under 1984 PA 425.

Honorable Robert Bender

State Representative

The Capitol

Lansing, MI 48909

You have requested my opinion concerning the annexation of property to a city where the parcel to be annexed is not contiguous to the city boundary, but is contiguous to property transferred to the city which, in turn, is contiguous to the city. You advise that the transferred property was acquired pursuant to 1984 PA 425, MCL 124.21 et seq; MSA 5.4087(21) et seq, which authorizes the conditional transfer of property between cities, townships and villages for economic development projects. Based on these facts, your question may be phrased as follows:

The law is settled that territory may not be annexed to a city unless the territory is contiguous to the city. Genesee Twp v. Genesee County, 369 Mich 592, 601-605; 120 NW2d 759 (1963); Twp of Owosso v. City of Owosso, 385 Mich 587, 590-591; 189 NW2d 421 (1971); Midland Twp v. State Boundary Comm'n, 401 Mich 641, 677; 259 NW2d 326 (1977). Here, the property to be annexed is not contiguous to the city unless the adjoining conditionally transferred property has become a part of the city for purposes of conferring contiguity.

A transfer, pursuant to section 2 of 1984 PA 425, is conditional and may be made for a period not to exceed 50 years, although the agreement may be renewed for additional periods of not to exceed 50 years. MCL 124.22; MSA 5.4087(22). A conditional transfer of property is controlled by a written contract between the affected local units. Section 2(1) of 1984 PA 425, MCL 124.22(1); MSA 5.4087(22)(1). Unless a contract provides otherwise, property conditionally transferred pursuant to 1984 PA 425 is for the term of the contract and for all purposes under the jurisdiction of the local unit to which the property is transferred. Section 8 of 1984 PA 425, MCL 124.28; MSA 5.4087(28).

The contract for conditional transfer between the city and township in the instant case does provide that if the city does not comply with certain paragraphs of the contract, the transferred area shall return to the township. There is no provision in the contract that, at the end of the contract, the city will retain jurisdiction of the transferred property. Section 7(d) of 1984 PA 425, MCL 124.27(d); MSA 5.4087(27)(d).

Section 9 of 1984 PA 425 provides that "[w]hile a contract under this act is in effect, another method of annexation or transfer shall not take place for any portion of an area transferred under the contract." MCL 124.29; MSA 5.4087(29). Thus, the conditionally transferred area may not be annexed to the city to establish contiguity.

As observed in OAG, 1987-1988, No 6469, p 200, 202 (September 30, 1987), "Act 425 deals with transfer of jurisdiction for a limited period and not annexation of territory to become a permanent part of the governmental unit ...". Thus, the conditionally transferred area does not become a permanent part of the city and does not confer contiguity on the parcel to be annexed.

It is my opinion, therefore, that property outside of a city's limits may not be annexed to the city if the property in question is separated from the city by a contiguous parcel that has been previously conditionally transferred to the city under 1984 PA 425.

Frank J. Kelley

Attorney General