Arrowhead Development Co. v. Livingston County Road Commission

• Decision Date: 20 August 1979
• Docket Number: Docket No. 78-2373
• Parties: ARROWHEAD DEVELOPMENT COMPANY, Plaintiff-Appellant, v. LIVINGSTON COUNTY ROAD COMMISSION, Defendant-Appellee. 92 Mich.App. 31, 283 N.W.2d 865
• Court: Court of Appeal of Michigan — District of US

Page 865

283 N.W.2d 865

ARROWHEAD DEVELOPMENT COMPANY, Plaintiff-Appellant, v. LIVINGSTON COUNTY ROAD COMMISSION, Defendant-Appellee.

Docket No. 78-2373.

92 Mich.App. 31, 283 N.W.2d 865

Court of Appeals of Michigan.

Aug. 20, 1979.

Released for Publication Oct. 10, 1979.

[92 MICHAPP 32] Michael J. McGivney, Brighton, for plaintiff-appellant.

John R. Laird, Ann Arbor, for defendant-appellee.

Before KELLY, P. J., and BASHARA and R. B. BURNS, JJ.

KELLY, Presiding Judge.

In this action, plaintiff requested the lower court (1) to vacate a portion of a subdivision plat by changing an existing intersection between a subdivision road, Navajo Trail, and [92 MICHAPP 33] a county road, Chilson Road, into a cul-de-sac; and alternatively, (2) to prevent defendant from enforcing an agreement between the parties that would require plaintiff to regrade portions of Chilson Road in order to make the intersection between Chilson and Navajo safer for automobile traffic. Plaintiff appeals as of right a May 30, 1978, order of the Livingston County Circuit Court dismissing its complaint.

At a hearing held on December 8, 1977, testimony established that plaintiff had agreed to regrade a portion of Chilson Road as a condition for approval of its subdivision plat. Although there was no testimony that any accidents had occurred at the intersection, witnesses for both plaintiff and defendant agreed that there was a visibility problem at the intersection due to the nature of the terrain. On May 1, 1978, the lower court issued a written opinion in which it concluded that:

"(A) County Road Commission may require a (subdivision) proprietor to make improvements on roads in its jurisdiction or to come under its jurisdiction as a condition to plat approval. The cutting of the sight obstruction in the case at hand is not a situation where the Road Commission is demanding that the proprietor pay for costs that are properly attributable to the County. Without the opening of Navajo Trail onto Chilson Road such obstruction would not be a hazard to travelers on Chilson Road."

The court also held that the defendant's decision to require plaintiff to leave open the intersection between Navajo Trail and Chilson Road was not an abuse of discretion.

Plaintiff appeals only from that portion of the lower court's decision upholding the authority of defendant to require plaintiff to make changes in Chilson Road, a county road, as a condition of [92 MICHAPP 34] subdivision plat approval. Thus, a single question of law is presented for our review.

MAY A COUNTY ROAD COMMISSION REQUIRE THE DEVELOPER OF A SUBDIVISION TO MAKE IMPROVEMENTS ON A COUNTY ROAD, WHICH IS OUTSIDE OF THE SUBDIVISION, AS A CONDITION OF PLAT APPROVAL WHERE THE IMPROVEMENTS ARE NECESSARY TO ALLEVIATE A HAZARDOUS CONDITION CREATED SOLELY BY THE SUBDIVISION DEVELOPMENT?

Plaintiff asserts that, because the defendant is demanding that it pay regrading costs attributable to the county, the defendant's action serves to deprive plaintiff of property without due process of law. On the other hand, the road commission argues that the Subdivision Control Act, M.C.L. § 560.101 Et seq.; M.S.A. § 26.430(101), Et seq., which empowers it to condition plat approval upon the removal of hazards created by subdivision development, should not be interpreted to require that exactions for road improvements be limited solely to those roads within the physical confines of a proposed subdivision.

At the outset, we note that this is a case of the first impression; no Michigan cases have considered the issue whether a county road commission possesses the authority to require a subdivision developer to make improvements outside of a proposed subdivision as a condition for plat approval. Therefore, in resolving this issue, our analysis necessarily commences with the language of the statute empowering county road commissions to require exactions as conditions for plat approval.

M.C.L. § 560.183; M.S.A. § 26.430(183), of the Subdivision Control Act, states in relevant part:

"(1) The county road commission may require the following as a condition of approval of final plat for all [92 MICHAPP 35] highways, streets and alleys in its jurisdiction or to come under its jurisdiction and also for all private roads in unincorporated areas:

"(a) Conformance to the general plan, width and location requirements that the board may have adopted and published.

"(b) Adequate provision for traffic safety in laying out drives which enter county roads and streets, as provided in the board's current published construction standards.

"(c) Proper drainage, grading and construction of approved materials of a thickness and width provided in its current published construction standards.

"(d) Submission of complete plans for grading, drainage and construction, to be prepared and sealed by a civil engineer registered in the state.

"(e) Installation of bridges, culverts and drainage structures where it deems necessary."

It is the duty of a county road commission "to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel". M.C.L. § 224.21; M.S.A. § 9.121. A county road commission has an "affirmative duty to design and construct the road and keep it 'reasonably safe and convenient for public travel' ". Mullins v. Wayne County, 16 Mich.App. 365, 375, 168 N.W.2d 246, 250 (1969).

Furthermore, the Michigan Constitution mandates an expansive interpretation of constitutional and statutory provisions relating to local government powers, for it states:

"The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by [92 MICHAPP 36] this constitution." Const.1963, art. 7, § 34. (Emphasis added).

The statute itself contains no limiting provision which requires that exactions take place only within the physical confines of the proposed subdivision. Moreover, its language expressly authorizes the county road commission to condition approval of plats upon certain exactions designed to insure the safety of those entering a county road from a proposed subdivision street; specifically, subparagraphs (a) and (b) permit plat approval to be conditioned on conformance with the road commission's general plan and on adequate provision for traffic safety. Furthermore, subparagraph (e) allows the road commission to require the "(i)nstallation of bridges, culverts and drainage structures where it deems necessary", a phrase suggesting that such installation may occur outside of the proposed plat, if necessary.

We find the absence of limiting language in the statute to be consistent with the Legislature's intent to endow county road commissions with broad authority to carry out their public duties. To construe the statute to permit exactions only within the plat would be to impose an arbitrary and unrealistic limitation upon the road commission's authority, contrary to its statutory directive to require "adequate provision for traffic safety". We hold that M.C.L. § 560.183; M.S.A. § 26.430(183) does not limit a road commission's exaction power solely to improvements on roads within the proposed subdivision as a condition of plat approval.

Plaintiff's position that off-site exactions are an unconstitutional taking, is grounded upon an opinion of the Michigan Attorney General, OAG, 1977-1978, No. 5181 (March 8, 1977), which interpreted [92 MICHAPP 37] M.C.L. § 560.183; M.S.A. § 26.430(183). In that opinion, the Attorney General stated:

"Under the above-quoted section a county road commission may require a proprietor to make improvements on roads in its jurisdiction or to come under its jurisdiction. Thus, the road commission may require that certain improvements be made on county roads within a plat as a condition to plat approval. See Allen v. Stockwell, 210 Mich. 488; 178 N.W. 27 (1929). However, a county may not take advantage of a proprietor's desire to improve his property by demanding that he pay for costs that are properly attributable to the county. Illustrative of this principle is Gordon v. City of Warren Planning and Urban Renewal Commission, 388 Mich. 82, 91; 199 N.W.2d 465 (1972).

"It is therefore my opinion that, although a county road commission may deny approval of a plat on the ground that the proprietor refuses to improve a county road within the plat submitted, the commission may not refuse to approve the plat on the ground that the proprietor refuses to perform a road improvement on a county road adjoining or near the land contained within the plat."

We note that opinions of the Attorney General are not binding...