Michigan Advisory Opinions August 10, 1979: AGO 5537 (August 10, 1979)

AGO 5537.

You have requested my opinion as to whether a simple majority or a 3/5 majority vote of the electors of the City of Lincoln Park is needed to authorize the sale of part of a city-owned park not required under its master plan where the value of such property exceeds ten cents per capita.

The home rule cities act, 1909 PA 279, Sec. 5, subsection (e), MCLA 117.5(e); MSA 5.2084(e), provides in pertinent part:

'A city shall not have power:

'(e) . . . [T]o sell a park, cemetery, or any part thereof, except where the park is not required under an official master plan of the city, or to engage in a business enterprise requiring an investment of money in excess of 10 cents per capita, . . . unless approved by a majority of the electors voting thereon at a general or special election . . . Notwithstanding the former provisions of this subdivision requiring approval by 3/5 of the electors voting thereon as a prerequisite to the exercise of certain powers, these powers may be exercised if approved by a majority of the electors voting thereon at a general or special election held on or after April 1, 1966.' [Emphasis added]

A study of the legislative history of 1909 PA 279, Sec. 5, subsection (e), supra, indicates that the last sentence underscored above was added by the legislature by enactment of 1964 PA 32. This same amendatory act also amended 1909 PA 279, Sec. 5, subsection (d), MCLA 117.5(d); MSA 5.2084(d), to add the phrase 'notwithstanding any charter provision to the contrary' as it applied to salary changes for municipal judges. 3 HJ 1964, p 2031. Had the legislature intended to require only majority approval of the electors to sell a park notwithstanding any charter provision to the contrary, it would also have added the same language to 1909 PA 279, Sec. 5, subsection (e), supra.

Lincoln Park Charter, Ch VI, Secs. 19, 20 provide:

'19. Subject to the limitations contained in section 20 following the city shall have power, upon proper resolution of the council, to sell any of its property; provided, that, the value of the property to be sold does not exceed ten cents per capita according to the last preceding census.

'20. The council may sell any property of the city of a value in excess of ten cents per capita according to the last census; may sell any park, cemetery or any real estate and in carrying on a public utility, or any part thereof, or any property bordering on a water front, or may vacate any street or public place leading to a water front; provided, however, that any such proposition shall have first received the affirmative vote of three-fifths of the qualified electors of the city voting thereon at an election called in accordance with the provisions of chapter II of this charter relating to elections.'

In Brozowski v City of Detroit, 351 Mich 10, 14; 87 NW2d 114, 116 (1957), the Supreme Court, interpreting 1909 PA 279, Sec. 5, subsection (e), supra, stated:

'There is no provision in the city charter nor in the home-rule act requiring the city of Detroit to adopt an official master plan. The property in question was not part of an adopted master plan and there is no prohibition against Detroit transferring and selling the property. . . .' [Emphasis added]

The Supreme Court in Verburg v City of Grand Rapids, 366 Mich 398, 402; 115 NW2d 94, 96 (1962), after quoting 1909 PA 279, Sec. 5, subsection (e), supra, stated:

'If the land in question was, as the trial judge concluded, included within the master plan, it is obvious that it was not released therefrom until after the action of which the plaintiffs complain in the instant case had been taken. In other words, it was at the time included in the official master plan of the city. If such was the situation the city was without authority to sell it in the manner attempted. The trial judge correctly so held.' [Emphasis added]

To the extent that the park, or part thereof, is not required under the city's master plan, and the property exceeds ten cents per capita in value, the charter provisions requiring 3/5 vote are controlling.

It is, therefore, my opinion that where the city charter required a 3/5 majority vote of the electors to authorize the sale of part of a city-owned park not required under its master plan and the value of such property exceeds ten cents per capita, a simple majority vote of the electors is insufficient to authorize the sale of such park land.

Frank J. Kelley

Attorney General