You have asked a series of questions regarding a township’s authority to adopt a local ordinance that regulates land divisions and transfers of adjacent land within the township. 

     Specifically, you ask:

1)    Does a township or municipality have the right to enforce depth to width ratios on a remaining parent tract or adjacent land transfer?

2)    Can a municipality adopt a local land division ordinance per MCL 560.109(5) that governs review of both remaining parent parcels and adjacent land transfers?

3)    Can a municipality adopt a definition of an “Exempt Split” for a local land ordinance that is different from the definition as defined in . . . MCL 560.102(e)?

These questions, along with the materials submitted with your request, assume the existence of a conflict between various township ordinances and state statutes set forth in the Land Division Act (LDA), MCL 560.101 et seq.  Your questions thus require examination of the preemption doctrine.

A state statute preempts regulation by a local government unit when the statute completely occupies the regulatory field, or when the local regulation directly conflicts with the state statute.  USA Cash #1, Inc v City of Saginaw, 285 Mich App 262, 267; 776 NW2d 346 (2009), citing McNeil v Charlevoix County, 275 Mich App 686, 697; 741 NW2d 27 (2007), citing Rental Prop Owners Ass’n of Kent County v Grand Rapids, 455 Mich 246, 257; 566 NW2d 514 (1997). 

     The LDA is the principal statute regulating the subdivision and division of land in Michigan.  The title of the LDA describes its purposes, in pertinent part, as:  (1) “to regulate the division of land”; (2) “to further the orderly layout and use of land”; and (3) “to provide for the approvals to be obtained prior to the recording and filing of plats and other land divisions.”  The regulation of land divisions in the LDA is organized into specified types by both the size of the area of the land and the number of parcels resulting from the partitioning or splitting of a parcel or tract of land.  The two types of land division most pertinent to your request are “exempt splits” and “divisions.”[1] 

     An “exempt split” creates parcels of 40 acres or more, and is defined, in pertinent part, as:

[T]he partitioning or splitting of a parcel or tract of land . . . that does not result in 1 or more parcels of less than 40 acres or the equivalent. For a property transfer between 2 or more adjacent parcels, if the property taken from 1 parcel is added to an adjacent parcel, any resulting parcel shall not be considered a building site unless the parcel conforms to the requirements of this act or the requirements of an applicable local ordinance.  [MCL 560.102(e).]

     An “exempt split” is not subject to approval under the LDA provided that the resulting parcels are accessible, MCL 560.103(1), or, if not accessible, if one of the conditions set forth in MCL 560.109b(1)(a) and (b) is met.[2] 

     In contrast, a “division” creates smaller parcels than those created by an “exempt split,” and is defined, in pertinent part, as: 

[T]he partitioning or splitting of a parcel or tract of land . . . that results in 1 or more parcels of less than 40 acres or the equivalent and that satisfies the requirements of sections 108 and 109.  Division does not include a property transfer between 2 or more adjacent parcels, if the property taken from 1 parcel is added to an adjacent parcel; and any resulting parcel shall not be considered a building site unless the parcel conforms to the requirements of this act or the requirements of an applicable local ordinance.  [MCL 560.102(d).]

     A “division” of land is subject to MCL 560.108, which limits the number of divisions allowed, and MCL 560.109, which makes local units of government responsible for regulating the division of land under the LDA.[3]  Once a determination is made that the proposed “division” of land does not yield more resulting parcels than permitted in MCL 560.108, the procedure for approval or disapproval of a “division” of land is governed by MCL 560.109, which expressly grants a “municipality,”[4] including a township, the authority for “approv[ing] or disapprov[ing]” a “division.”  MCL 560.109(1); Sotelo v Grant Twp, 470 Mich 95, 97; 680 NW2d 381 (2004). 

     In order to carry out its responsibilities to approve or disapprove a “division” of land, a township “may adopt an ordinance setting forth the standards authorized in subsection [MCL 560.109(1)(b), (c), and (d)].”  MCL 560.109(5).  In addition, MCL 560.109(6) specifically contemplates that the parcels resulting from a division of land must comply with other ordinances and regulations:  “Approval of a division [under the LDA] is not a determination that the resulting parcels comply with other ordinances or regulations.”  

     Thus, the LDA expressly authorizes a township to approve or disapprove land divisions and to adopt ordinances governing the approval or disapproval of divisions of land.  Because the LDA does not completely occupy the regulatory field, a conflict preemption analysis is relevant here.  See, e.g., Conlin v Scio Twp, 262 Mich App 379, 385-387; 686 NW2d 16 (2004) (LDA does not completely occupy the field with respect to “subdivision” of land).  A local ordinance conflicts with a statute only if it prohibits what the statute permits or permits what the statute prohibits; in those situations, the ordinance and the statute conflict in the sense that both cannot be enforced. See USA Cash #1, Inc, 285 Mich App at 267-268, citing Rental Prop Owners Ass’n of Kent County, 455 Mich at 262. 

     Turning first to your second question, you ask whether a municipality can adopt a local land division ordinance under MCL 560.109(5) that governs review of both remaining parent parcels and adjacent land transfers.

     A “‘[p]arent parcel’ or ‘parent tract’” is defined as “a parcel or tract, respectively, lawfully in existence on [March 31, 1997] the effective date of the amendatory act that added this subdivision.”  MCL 560.102(i); Sotelo, 470 Mich at 101.  Generally speaking, a parent parcel or parent tract is the area of land from which parcels are split off.  The remaining parent parcel is the area of the parent parcel remaining after parcels are split off.  The LDA addresses parent parcels and parent tracts in MCL 560.108 and MCL 560.109.  MCL 560.108 addresses the number of parcels resulting from a division of a parent parcel or parent tract that define a division for purposes of imposing the requirements of MCL 560.109.  And MCL 560.109 discusses parent parcels and parent tracts in the context of transfers of the right to make divisions.  Thus, a local ordinance can regulate remaining parent parcels but it must not conflict with a statutory scheme applicable to parent parcels set forth in MCL 560.102(i), MCL 560.108, and MCL 560.109.  Again, a local ordinance will conflict with a state law if it prohibits what the statute permits or permits what the statute prohibits. 

     While not defined in the LDA, “transfer[s] between . . . adjacent parcels” are referred to in, and excluded from, the definition of “division.”  Section 102(d) states in relevant part:  “Division does not include a property transfer between 2 or more adjacent parcels, if the property taken from 1 parcel is added to an adjacent parcel[.]”  MCL 560.102(d).  Moreover, the Michigan Supreme Court has confirmed that an adjacent land transfer is not a “division” within the meaning of the Act.  See Sotelo, 470 Mich at 102.[5]  Since adjacent land transfers are not “divisions” for purposes of the LDA, MCL 560.109(5) – which authorizes a township to adopt an ordinance setting standards for approval or disapproval of land divisions – does not apply.  Because townships have no inherent powers, but rather have only those powers conferred by the Legislature or by the State Constitution, Graham v Kochville Twp, 236 Mich App 141, 146; 599 NW2d 793 (1999), citing Hanselman v Wayne County Concealed Weapon Licensing Bd, 419 Mich 168, 187; 351 NW2d 544 (1984), the township authority to regulate adjacent land transfers must be found elsewhere in the law. 

     The township ordinance act, MCL 41.181, is the basic enabling act granting townships the power to enact ordinances “regulating the public health, safety, and general welfare of persons and property.”  (Emphasis added).   In addition, townships have broad authority under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq., to regulate land use.  The MZEA empowers townships to regulate land uses for “the broad purposes identified in MCL 125.3201(1).”  Kyser v Kasson Twp, 486 Mich 514, 520; 786 NW2d 543 (2010).  Such identified purposes include the regulation of land “to ensure that use of the land is situated in appropriate locations and relationships, to limit the inappropriate overcrowding of land and congestion of population.”  MCL 325.3201(1).  The Michigan Supreme Court “has recognized zoning as a reasonable exercise of the police power that not only protects the integrity of a community’s current structure, but also plans and controls a community’s future development.”  Kyser, 486 Mich at 520, citing Austin v Older, 283 Mich 667, 674-675; 278 NW 727 (1938).

     These acts empower a township to adopt ordinances regulating adjacent land transfers provided that any ordinance does not create a conflict with state law, including the LDA.  For example, a township may require approval of an adjacent land transfer even though no such approval requirement is contained in the LDA.[6]  And, as noted in a prior letter from this office, a township may, by ordinance adopted pursuant to its general authority to regulate land use under the MZEA and MCL 41.181, require the submission of a survey before it approves an adjacent land transfer.[7]  But a township could not purport – through an ordinance – to allow an adjacent land transfer to change the boundary lines of a parent parcel or parent tract for the purposes of determining the number of divisions available pursuant to the LDA under MCL 560.108.  Sotelo, 470 Mich at 99-102.  Accordingly, a township may enact an ordinance addressing the changes that result from the division of land, including adjacent land transfers.[8]

     It is my opinion, therefore, that by its terms the LDA does not preempt the broad authority granted townships under the MZEA and MCL 41.181 to adopt ordinances that regulate lands also subject to the LDA.  A township may thus adopt ordinances regulating parent parcels or parent tracts remaining after a land division, or parcels affected by adjacent land transfers. 

     You next ask whether a township has the right to enforce depth to width ratios on a remaining parent tract or adjacent land transfer.  

     Subsections 109(1)(b), (c), and (d), MCL 560.109(1)(b),(c), and (d), cover depth to width ratio, width, and area requirements under the LDA.  The standards for parcel depth to width ratio requirements expressly allow a local ordinance to impose “a smaller depth to width ratio” than that provided for in the LDA.  MCL 560.109(1)(b).  The standards for parcel width and area reflect the exclusive discretion of the township to regulate the width and area of a parcel by incorporating the phrase “not less than required by an ordinance” in the LDA.  MCL 560.109(1)(c) and (d).[9]  Thus, a local ordinance may regulate the width and the area of the parcel resulting from the division of a parent parcel or tract as well as the depth to width ratio of a resulting parcel or tract.  MCL 560.109(1)(b)-(d).  However, pertinent to your question, with respect to parent parcels or parent tracts, depth to width ratio requirements “do not apply to the remainder of the parent parcel or parent tract retained by the proprietor” of the land that has been divided pursuant to MCL 560.108 and MCL 560.109.  MCL 560.109(1)(b).  With respect to adjacent land transfers, as discussed above they are not subject to the LDA, but such transfers may be regulated by local ordinance adopted by a township pursuant to its authority under the MZEA and MCL 41.181.

     It is my opinion, therefore, that the LDA authorizes a township to adopt depth to width ratios smaller than those imposed by the LDA, with the exception that the application of depth to width ratios to the remainder of a parent parcel or parent tract is prohibited by the LDA.  MCL 560.109(1)(b).  Further, a township may adopt depth to width ratios applicable to lands affected by adjacent land transfers under generally applicable township land use ordinances adopted pursuant to its statutory authority under the MZEA and MCL 41.181.

     Finally, you ask whether a township may adopt a definition of an “exempt split” for a local land ordinance that is different from the definition set forth in MCL 560.102(e).

     Again, an “exempt split” is defined in the LDA as:

[T]he partitioning or splitting of a parcel or tract of land by the proprietor thereof or by his or her heirs, executors, administrators, legal representatives, successors, or assigns that does not result in 1 or more parcels of less than 40 acres or the equivalent.  For a property transfer between 2 or more adjacent parcels, if the property taken from 1 parcel is added to an adjacent parcel, any resulting parcel shall not be considered a building site unless the parcel conforms to the requirements of this act or the requirements of an applicable local ordinance.  [MCL 560.102(e).]

     Under section 103(1) of the LDA, “[a]n exempt split is not subject to approval under this act so long as the resulting parcels are accessible.”  MCL 560.103(1). Background materials provided with your request include a township land division ordinance that, for purposes of the ordinance, defines an “exempt split” as:

[T]he partitioning or splitting of a parcel or tract of land by the proprietor thereof, or by his/her heirs, executors, administrators, legal representatives, successors, or assigns, that does not result in one or more parcels of less than 40 acres or the equivalent. 

By its terms, the second sentence does not substantively alter the meaning of an “exempt split” as defined in the first sentence.  Instead, like the closely parallel language in the definitions of “division” and “subdivision,” it addresses the distinct subject of adjacent land transfers, and reiterates the LDA’s requirement that in each instance of such transfers, “any resulting parcel shall not be considered a building site unless the parcel conforms to the requirements of this act or the requirements of an applicable local ordinance.”  MCL 560.102(d), MCL 560.102(e), and MCL 560.102(f).  Thus, the omission of that second sentence from the definition of “exempt split” in the local ordinance does not substantively change the meaning of “exempt split” from that provided in the LDA.  And, absent any indication that the local ordinance elsewhere allows that which the second sentence of MCL 560.102(e) prohibits – permitting as a building site a parcel resulting from a land transfer that does not conform to the requirements of the LDA or the ordinance – the ordinance does not conflict with the LDA.

     It is my opinion, therefore, that a local ordinance that does not substantively change the meaning of “exempt split” as defined in section 102(e), MCL 560.102(e), and does not otherwise conflict with the LDA, is not preempted by the LDA.

BILL SCHUETTE
Attorney General