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MEMORANDUMTo: Mr. Dave DavisFrom: 65256907Date: 12/8/2011Re: Development QuestionsIntroduction        This memo is in repl...
stopping you if you can show that you acted in good faith and to your detriment. However, because youare still early in yo...
landowner’s investment-backed expectations.viii Since the land around yours was subdivided anddeveloped decades ago, you m...
ii   MCL Act 288: 560.108, 560.109, §108, §109 (1967)iii    Fisher, p. 158iv    Ibid, p. 171v   MCL Act 288: 560.105, §105...
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Memorandum 3

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Memorandum 3

  1. 1. MEMORANDUMTo: Mr. Dave DavisFrom: 65256907Date: 12/8/2011Re: Development QuestionsIntroduction 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). Ifyou do not file a preliminary plat you will not be eligible to receive further necessary permits and thegovernment may fine you for violating the MLDA. Mason City has the authority to adopt its ownsubdivision ordinance and it is unlikely that a court would find their requirements to be ultra vires, orgoing outside their scope of power. While there are constitutional claims that are of interest to you, it isunlikely that any would succeed in court.Platting Requirements The desk planner is mistaken in this instance and you are subject to the full platting requirementsof 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 leaseterm of over one year that is not exempt from platting requirements under sections 108 and 109 of theMLDA.ii The land you are keeping for yourself counts towards the total number of parcels and eventhough you are only planning to sell four you are still making five divisions of the original parcel. Themaximum amount of divisions you could make with your land and still be exempt is four.iii If you proceedwithout filing a preliminary plat you will not be eligible to apply for final platting approval or otherpermits needed in your development process. If you continue without filing a preliminary plat and arefound 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 fordamages. iv Since the desk planner told you that your project would not be subject to full plattingrequirements, you might have grounds for an estoppel, which would prevent the government from 1 65256907
  2. 2. stopping you if you can show that you acted in good faith and to your detriment. However, because youare still early in your process and you now know that you must submit a plat I do not think you would getan estoppel. Since your subdivision is subject to the full platting requirements of the MLDA I recommendyou file a preliminary plat before you proceed.Mason City Subdivision Ordinance Mason City does not have clear authority to adopt its own subdivision ordinance imposingrequirements 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 amunicipality or county adopted to carry out the provisions” of the MLDA. v The MPEA allows planningbodies to recommend subdivision ordinances governing platting and space for utilities and recreation. viThese do not grant explicit power to go beyond the MLDA, but based on the facts of this case you wouldhave 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 claimsor regulatory takings claims. I do not think that substantive due process claim would succeed because youwould have a difficult time proving that the MLDA or Mason City’s ordinances do not reasonablyadvance legitimate government interests. A procedural due process claim would also not succeed sincethe government has not violated any procedures. Regulatory takings claims arise when a governmentalregulation “goes too far” and has the effect of taking private property. According to Fisher there are threetheories to establishing a regulatory takings claim: a land use exaction, a per se taking, and a PennCentral taking.vii Since the Mason City is only requesting an easement and is not conditioning approvalupon it you do not have grounds for a claim based on an exaction (when the government demands adedication or easement in exchange for approval). A Penn Central taking relies on a three part test based on the nature of the government’sregulation, the economic impact on the landowner, and whether the regulation interfered with 2 65256907
  3. 3. landowner’s investment-backed expectations.viii Since the land around yours was subdivided anddeveloped decades ago, you might argue that when you invested in this land you expected to be able todivide and develop it similarly. However, the government’s regulations do not appear unfairly applied toyour land given the character of the homes and property around it, nor do the regulations appear to haveenough economic impact. While the floodplain and building restrictions limits the kind of structures youcan develop, you still have the option of developing potentially attractive riverside housing. The first kindof per se taking is if there is a permanent physical invasion of property, which would not apply in yoursituation since there is nothing physically invading your property. The second kind involves a completedenial of economic viability of the property. ix This kind of claim is not feasible because you coulddevelop the proper in some economically beneficial way. In summary, while there are variousconstitutional 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 fullplatting requirements. If you proceed without filing a preliminary plat you will not be able to get furtherpermits approved and the government could fine you for violating the MLDA. It is not likely that a courtwould find Mason City’s requirements ultra vires as the city is enabled to make its own ordinancethrough the MLDA and MPEA. You might consider some form of regulatory takings claim, but sincethere is no physical invasion of your property, there is still economic value in your proposal even withrestrictions and since the regulations appears to advance public interests it is unlikely that you would findsuccess in court. Since you are still early in the development process you might consider restructuringyour 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 3 65256907
  4. 4. ii MCL Act 288: 560.108, 560.109, §108, §109 (1967)iii Fisher, p. 158iv Ibid, p. 171v MCL Act 288: 560.105, §105vi MCL Act 125.3871, §71 (2008)vii Fisher, p. 263viii Ibid., p. 264ix Ibid., p. 263 465256907

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