Arrowhead Development Co. v. Livingston County Road Commission

322 N.W.2d 702, 413 Mich. 505, 1982 Mich. LEXIS 529
CourtMichigan Supreme Court
DecidedJune 28, 1982
DocketDocket No. 63742
StatusPublished
Cited by67 cases

This text of 322 N.W.2d 702 (Arrowhead Development Co. v. Livingston County Road Commission) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arrowhead Development Co. v. Livingston County Road Commission, 322 N.W.2d 702, 413 Mich. 505, 1982 Mich. LEXIS 529 (Mich. 1982).

Opinion

Ryan, J.

Arrowhead Development Company sought to develop 140 acres of property in Livingston County into a residential subdivision. A portion of the tract to be subdivided lies along Chilson Road, a county road, and abuts Chilson at two locations, one along the southern boundary of the [508]*508subdivision and the other along the western boundary.1

[509]*509When the proposed plat was submitted to the Livingston County Road Commission for approval, it provided for two access roads into the subdivision, both along the Chilson Road southern boundary of the tract: Pawnee Trail and Kiowa Trail. For purposes of safety, reduced road grades and improved road layout, the commission required that a third access road be added and directed that Navajo Trail, which was originally proposed as a cul-de-sac, be opened to create an intersection with Chilson Road. Because a steep hill crested at a point on Chilson Road somewhat southeast of the newly proposed intersection, a hazardous condition in the nature of a sight obstruction was created, particularly for traffic entering and exiting the subdivision at Navajo. Consequently, as a further condition of approval of the plat, the commission required that the developer remove the hill and perform related regrading and resurfacing work on Chilson Road, although the site was located entirely outside the proposed subdivision and no lots are platted along the road at that point.

Instead of making the improvement immediately, appellant posted a performance bond whereupon the subdivision plat was approved by the commission and appellant proceeded with the development.

Sometime later, the commission notified appellant that unless it took action immediately to eliminate the hill and regrade Chilson Road, the commission would remove the hazard itself and seek reimbursement under the terms of the bond. That prompted appellant to file suit to enjoin the commission both from requiring that the Navajo Trail cul-de-sac be opened and from requiring that appellant make the improvements on Chilson Road.

[510]*510The trial court upheld the validity of both requirements. Appellant appealed only the determination that the commission had the authority to require appellant to make the improvements on Chilson Road.

The Court of Appeals affirmed the trial court’s decision2 and plaintiff is before us on an appeal from that judgment.

The case presents two related issues:

1) Whether a county road commission has authority to require a subdivision developer to make improvements on a county road located entirely outside the platted subdivision as a condition precedent to plat approval and, if so,

2) Whether the exercise of that authority in this instance is constitutional under US Const, Am XIV and Const 1963, art 1, § 17 which prohibit a taking of property without due process of law.

We answer the first question in the negative and thus find it unnecessary to address the second question.

I

Arrowhead contends that as a matter of law the commission lacks the power to require it to make the improvement demanded in this case because the site involved is a county road not within the subdivision. The commission counters that on the basis of Const 1963, art 7, § 34, the county road law,3 and the Michigan Subdivision Control Act of 1967,4 the commission must be deemed to have the [511]*511power to require Arrowhead to pay for the off-site improvement to Chilson Road.

We disagree with the commission’s interpretation of the state constitutional provisions and the cited statutory authority and conclude that it is without authority to condition approval of the proposed plat upon removal of the Chilson Road hill by Arrowhead.

A

Article 7, § 34 of the Michigan Constitution of 1963 provides:

"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 this constitution.”

We know of no authority, and appellant does not invite our attention to any, standing for the proposition that this constitutional provision is a grant of authority to county road commissions to make any requirement whatever of subdivision owners or developers. While the provision speaks of "provisions of * * * law concerning counties” and "[p]owers granted to counties * * * by this constitution and by law”, it says nothing about county road commissions.

We think the most that can be claimed for art 7, § 34, Const 1963 is that it mandates that provisions of law which do address the powers of county road commissions "shall be liberally construed in their favor”.

We turn, then, to the two statutes which address [512]*512such powers: The county road law and the Michigan Subdivision Control Act of 1967.

B

The county road law, which is a part of the general highway law, provides, inter alia, for the adoption of a county road system and the creation of a county road commission, and defines the powers and duties of such commission. A county road commission draws its legal life from the county road law and, as a creature of that legislation, the commission has no power save that which is legislatively conferred.

The commission claims that a liberal reading of the county road law, particularly § 21,5 which imposes on the commission an affirmative duty to "keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads”, reveals an implicit grant of authority to the commission to exact payment for an oif-site county road improvement made necessary by the development of the appellant’s nearby subdivision. While there is no dispute that the Legislature has imposed this duty on counties, we are unable to find any basis to conclude that the statute either explicitly or implicitly authorizes the commission to discharge that duty by imposing the costs of county road improvements upon the developers of nearby subdivisions. To the contrary, the provision of the county road law which imposes this affirmative duty upon the road commission, MCL 224.1 et seq.; MSA 9.101 et seq., specifically provides that the permissible methods of financing county road improvement are borrowing and taxation. Nowhere in the statute is there to be found authorization for exacting the cost of a [513]*513county road improvement from a subdivision developer, and we think none can be fairly implied.

C

The other authority cited by appellee for requiring the appellant to sustain the cost of the repairs to Chilson Road is the Michigan Subdivision Control Act of 1967.6 The commission argues that the provisions of the act, specifically § 183, should be liberally construed to recognize in the commission authority to require that the cost of the cutdown and regrading on Chilson Road be borne by Arrowhead.7

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Bluebook (online)
322 N.W.2d 702, 413 Mich. 505, 1982 Mich. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arrowhead-development-co-v-livingston-county-road-commission-mich-1982.