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MEMORANDUM

To: Mr. Dave Davis

From: 65256907

Date: 12/8/2011

Re: Development Questions

Introduction

This memo is in reply to your questions regarding your proposed development in Mason City.

Your proposal is subject to the full platting requirements of the Michigan Land Division Act (MLDA). If

you do not file a preliminary plat you will not be eligible to receive further necessary permits and the

government may fine you for violating the MLDA. Mason City has the authority to adopt its own

subdivision ordinance and it is unlikely that a court would find their requirements to be ultra vires, or

going outside their scope of power. While there are constitutional claims that are of interest to you, it is

unlikely that any would succeed in court.

Platting Requirements

The desk planner is mistaken in this instance and you are subject to the full platting requirements

of the MLDA. The MLDA has three different categories: “subdivisions”, “exempt splits”, and

“divisions”.i A subdivision is the splitting of a parcel of land into one or more portions for sale or a lease

term of over one year that is not exempt from platting requirements under sections 108 and 109 of the

MLDA.ii The land you are keeping for yourself counts towards the total number of parcels and even

though you are only planning to sell four you are still making five divisions of the original parcel. The

maximum amount of divisions you could make with your land and still be exempt is four.iii

If you proceed

without filing a preliminary plat you will not be eligible to apply for final platting approval or other

permits needed in your development process. If you continue without filing a preliminary plat and are

found guilty of violating the MLDA and subject to a fine of up to $1,000, plus an additional fine of up to

$1,000 for each parcel sold. The purchaser has the option to void the sale and make you liable for

damages.iv Since the desk planner told you that your project would not be subject to full platting

requirements, you might have grounds for an estoppel, which would prevent the government from

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stopping you if you can show that you acted in good faith and to your detriment. However, because you

are still early in your process and you now know that you must submit a plat I do not think you would get

an estoppel. Since your subdivision is subject to the full platting requirements of the MLDA I recommend

you file a preliminary plat before you proceed.

Mason City Subdivision Ordinance

Mason City does not have clear authority to adopt its own subdivision ordinance imposing

requirements beyond those of the state, but the MLDA and the Michigan Planning Enabling Act (MPEA)

imply that the municipalities have the power to adopt their own subdivision ordinances in general.

Preliminary and final plat approval is conditioned on meeting “Any ordinance or published rules of a

municipality or county adopted to carry out the provisions” of the MLDA.v The MPEA allows planning

bodies to recommend subdivision ordinances governing platting and space for utilities and recreation.vi

These do not grant explicit power to go beyond the MLDA, but based on the facts of this case you would

have a hard time proving that Mason City’s ordinance goes too far and should be considered ultra vires.

Constitutional Claims

The two broad types of constitutional claims you might think of bringing are due process claims

or regulatory takings claims. I do not think that substantive due process claim would succeed because you

would have a difficult time proving that the MLDA or Mason City’s ordinances do not reasonably

advance legitimate government interests. A procedural due process claim would also not succeed since

the government has not violated any procedures. Regulatory takings claims arise when a governmental

regulation “goes too far” and has the effect of taking private property. According to Fisher there are three

theories to establishing a regulatory takings claim: a land use exaction, a per se taking, and a Penn

Central taking.vii

Since the Mason City is only requesting an easement and is not conditioning approval

upon it you do not have grounds for a claim based on an exaction (when the government demands a

dedication or easement in exchange for approval).

A Penn Central taking relies on a three part test based on the nature of the government’s

regulation, the economic impact on the landowner, and whether the regulation interfered with

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landowner’s investment-backed expectations.viii

Since the land around yours was subdivided and

developed decades ago, you might argue that when you invested in this land you expected to be able to

divide and develop it similarly. However, the government’s regulations do not appear unfairly applied to

your land given the character of the homes and property around it, nor do the regulations appear to have

enough economic impact. While the floodplain and building restrictions limits the kind of structures you

can develop, you still have the option of developing potentially attractive riverside housing. The first kind

of per se taking is if there is a permanent physical invasion of property, which would not apply in your

situation since there is nothing physically invading your property. The second kind involves a complete

denial of economic viability of the property.ix This kind of claim is not feasible because you could

develop the proper in some economically beneficial way. In summary, while there are various

constitutional claims you could try to make, it is unlikely that any would win in court.

Conclusion

Because your proposal qualifies as a subdivision under the MLDA you are still subject to its full

platting requirements. If you proceed without filing a preliminary plat you will not be able to get further

permits approved and the government could fine you for violating the MLDA. It is not likely that a court

would find Mason City’s requirements ultra vires as the city is enabled to make its own ordinance

through the MLDA and MPEA. You might consider some form of regulatory takings claim, but since

there is no physical invasion of your property, there is still economic value in your proposal even with

restrictions and since the regulations appears to advance public interests it is unlikely that you would find

success in court. Since you are still early in the development process you might consider restructuring

your splits to qualify as a “division” or in a way that allows you to build larger homes.

i Fisher, Gerald A., et. al. 2010. Michigan Zoning, Planning and Land Use. Ann Arbor: ICLE. p. 158

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ii MCL Act 288: 560.108, 560.109, §108, §109 (1967) iii Fisher, p. 158 iv Ibid, p. 171

v MCL Act 288: 560.105, §105 vi MCL Act 125.3871, §71 (2008) vii Fisher, p. 263 viii Ibid., p. 264 ix Ibid., p. 263