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
BUILDING AUTHORITIES ACT:
LAND DIVISION ACT:
Application of Land Division Act to building authorities incorporated under building authorities act
A building authority incorporated by a county under the building authorities act is not exempt from the plat filing and other land division requirements imposed by the Land Division Act.
Opinion No. 6989
August 11, 1998
Honorable Howard Wetters
You have asked whether a building authority incorporated by a county under the building authorities act is exempt from the plat filing and other land division requirements imposed by the Land Division Act.
The building authorities act, 1948 (1st Ex Sess) PA 31, MCL 123.951 et seq; MSA 5.301(1) et seq, provides for the incorporation of authorities to acquire and operate public buildings and other facilities. A county or municipality, or any combination thereof, may incorporate one or more authorities to acquire and operate facilities "for use for any legitimate public purpose of the incorporating units." Section 2. The acquisition of any building or other facilities by any authority "constitutes a benefit to and a legitimate public purpose of the authority and the incorporating unit or units." Section 8. The incorporation of such an authority is accomplished by the adoption of articles of incorporation adopted by the legislative body of each incorporating unit (section 4) and the filing of the articles with the county clerk. Section 6. The Legislature has declared such authority to be a body corporate, possessing powers needed "to carry out the purpose of its incorporation". Section 7.
The Land Division Act,1 1967 PA 288, MCL 560.101 et seq; MSA 26.430(101) et seq, regulates the division of land and requires the filing of plats by specified persons under specified circumstances. This act imposes filing and other compliance requirements upon the proprietor of land. But cf. sections 102(d), (e), (f); 111-119.
Section 102(o) of the Land Division Act defines the term "proprietor" as follows:
"Proprietor" means a natural person, firm, association, partnership, corporation, or combination of any of them that holds an ownership interest in land whether recorded or not.
Nothing in this act's definition of the term "proprietor" suggests that the Legislature intended to exclude from its meaning a building authority incorporated under the building authorities act.
The nature of a building authority incorporated under the building authorities act has been characterized in different ways. In Walinske v Detroit-Wayne Joint Building Authority, 325 Mich 562, 581; 39 NW2d 73 (1949), the court described a joint city-county building authority to erect a building as a "quasi-municipal corporation." In Rude v Muskegon County Building Authority, 338 Mich 363, 366; 61 NW2d 88 (1953), a county building authority was held not to be the alter-ego of the creating county but was described as "in a sense a county-wide municipal corporation" separate and distinct from its incorporator. (Emphasis added.) A later court considered Rude, supra, and interpreted it to hold that building authorities are "quasi-public agencies." Accident Fund v Baerwaldt, 545 Fed Supp 1030, 1036 (WD Mich, 1982). Considering Walinske, supra, and Rude, supra, 1 OAG, 1957, No 3043, pp 338, 340 (July 12, 1957), concluded that building authorities are "corporations, having separate existence from [the creating] municipalities, for the purpose of carrying on some public purpose for and on behalf of the municipalities ."
OAG, 1977-1978, No 5391, p 684 (November 17, 1978), concluded that except for urban renewal plats, a township, city or village is not required to file plats under the Subdivision Control Act of 1967. Noting this act's definition2 of the terms proprietor, governing body ("legislative body of a city or village or . . . township board"), and municipality ("township, city or village"), OAG, 1977-1978, No 5391, at 684-685, includes the following analysis:
The juxtaposition of these definitions would, standing alone, indicate that the Legislature did not intend a "governing body" or a "municipality" to be included within the meaning of the term "proprietor." . . . .
STATE OF MICHIGAN
A further indication that the Legislature did not intend to include a municipal corporation within the definition of "proprietor" is the fact that the Subdivision Control Act requires by 1967 PA 288, supra, § 103(4) that the governing body of a municipality file urban renewal plats, but no other provision of the Act requires a municipality to file a plat. Thus, the doctrine of statutory construction referred to as expresso unius est exclusio alterius should be applied to conclude that a municipality need not file a plat for any other purpose.
Although OAG, No 5391, supra, construed cities, villages and townships as being exempt from the requirements of the Land Division Act regarding the filing of plats, except urban renewal plats required by section 103(4), a review of the act discloses no such exemption for county building authorities. This reading of the act is required by the act's broad definition of the term "proprietor" as including a wide range of persons and entities, including "corporations." Moreover, such an interpretation furthers the act's purpose which is the protection of purchasers of land. See, Roose v Parklane Homes Corp, 59 Mich App 542, 546; 229 NW2d 838 (1975).
It is my opinion, therefore, that a building authority incorporated by a county under the building authorities act is not exempt from the plat filing and other land division requirements imposed by the Land Division Act.
FRANK J. KELLEY
1 The Land Division Act was formerly known as the Subdivision Control Act of 1967.
2 The Land Division Act's current definitions of these terms are essentially the same as those set forth in the former Subdivision Control Act of 1967.