1. 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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2. 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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3. 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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4. 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
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