Brigham Douglas, Kenneth Yost and Kathy J. Schultz, Plaintiffs, v. PENTWATER TOWNSHIP (1997)

Plaintiffs, Vernon J. Andrews, Grace M. Andrews, Angela A. Ryan and Andrea A. Larkin, (“plaintiffs”), appeal as of right from a September 27, 1995, judgment approving defendant, Pentwater Township's (“Pentwater”), proposed assessor's plat.   We affirm in part and reverse in part.

Pentwater passed a resolution to prepare an assessor's plat for Pentwater Beach Addition No. 4. After discovering Pentwater's plans to prepare an assessor's plat, plaintiffs filed a complaint seeking to enjoin the implementation of the assessor's plat.   The trial court denied plaintiffs relief pursuant to the “Subdivision Control Act” of 1967 (or “the Act”), M.C.L. § 560.201 et seq.;   M.S.A. § 26.430(201) et seq.   During the time in which plaintiffs were awaiting the resolution of the above-mentioned lawsuit, Pentwater's surveyor, Sammy Barnett, created an assessor's plat, which was filed by Pentwater with the appropriate governmental agency clerk.

Thereafter plaintiffs filed the instant complaint requesting the trial court to vacate, correct, or revise the proposed plat.   Following a hearing, the trial court approved the plat without modification or correction.

 On appeal plaintiffs argue the trial court erred in approving Pentwater's proposed assessor's plat.   According to MCR 2.613, a trial court's findings of fact may not be set aside unless clearly erroneous.   Vivian v. Roscommon Rd. Comm., 164 Mich.App. 234, 238-239, 416 N.W.2d 394 (1987).   A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction a mistake has been made.  Id.

The Subdivision Control Act controls the creation of Pentwater's plat, plaintiffs' objections to the plat, and the trial court's ultimate approval of the plat.   The Act provides an assessor's plat may be ordered in either of the following conditions:

(a) When a parcel or tract of land is owned by 2 or more persons.

(b) When the description of 1 or more of the different parcels within the area cannot be made sufficiently certain and accurate, or are deemed excessively complicated by the governing body, for the purposes of assessment and taxation without a survey or resurvey.  [M.C.L. § 560.201(1);  M.S.A. § 26.430(201)(1).]

The governing body of a municipality can order the creation of an assessor's plat by the adoption of a resolution.  M.C.L. § 560.201(2);  M.S.A. § 26.430(201)(2).   The plat is to be made by a surveyor.  M.C.L. § 560.202(1);  M.S.A. § 26.430(202)(1).

Additionally, under the Act, the surveyor making the plat is to

“survey and lay out the boundaries of each parcel, street, alley or road and dedication or public or private use, according to the records of the register of deeds and whatever other evidence that may be available to show the intent of the buyer and seller, in the chronological order of their conveyance or dedication.”  M.C.L. § 560.204(1);  M.S.A. § 26.430(204)(1) (emphasis added).

Furthermore, according to the Act, the surveyor making the plat “shall reconcile any discrepancies that may be revealed, so that the plat as certified to the governing body shall be in conformity with the records of the register of deeds as nearly as is practicable.”  M.C.L. § 560.206(1);  M.S.A. § 26.430(206)(1) (emphasis added).

 Plaintiffs make several arguments as to why the trial court should have rejected Pentwater's proposed assessor's plat.   First, plaintiffs claim no discrepancies exist between the 1905 plat on file with the register of deeds and the current use of their property.   Thus, plaintiffs argue Pentwater had no authority to create a new assessor's plat.   The evidence adduced from the lower court record does not support this contention.   Barnett testified the current roads and houses within the subdivision were not physically located as they were depicted on the 1905 plat.   He also testified several houses were built on the roadways as platted in the 1905 plat.   Indeed, it appears only one point on the original 1905 plat could be physically located in the subdivision.   Based upon Barnett's unrebutted testimony, the current owners' use of the subdivision property is incongruous with the property as indicated on the 1905 plat.   Therefore, because there are clear discrepancies between the 1905 plat and the property owners' current use of the land, Pentwater's ordering of a new assessor's plat was proper under M.C.L. § 560.201(1);  M.S.A. § 26.430(201)(1).   The fact some properties within the plat were being used consistent with the plat does not cure the remaining discrepancies and negate the need for an assessor's plat.

 Plaintiffs next argue the treatment of roads in the assessor's plat fails to conform “as nearly as is practicable” to the records of the register of deeds as required by M.C.L. § 560.206(1);  M.S.A. § 26.430(206)(1).   We agree in part with plaintiffs' argument.   While no Michigan precedent exists interpreting the statutory language “as nearly as is practicable,” statutory language should be construed reasonably, keeping in mind the purpose of the act.  Department of Social Services v. Brewer, 180 Mich.App. 82, 446 N.W.2d 593 (1989).   The Legislature is presumed to have intended the meaning it plainly expressed.  Frasier v. Model Coverall Service, Inc., 182 Mich.App. 741, 744, 453 N.W.2d 301 (1990).   If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted.  Lorencz v. Ford Motor Co., 439 Mich. 370, 483 N.W.2d 844 (1992).

 We interpret the plain and ordinary definition of “as nearly as is practicable” to mean that an assessor's plat does not have to perfectly reconcile the current use of property with the records of the register of deeds.  M.C.L. § 560.206(1);  M.S.A. § 26.430(206)(1).   According to Webster's Dictionary, “practicable” can be defined as meaning “possible” or “feasible.”   Webster's Third New International Dictionary, G & C Merriam Company (1970), p 1780.   Thus, Pentwater's assessor's plat merely needed to conform as near as logically possible or feasible to the 1905 plat.   From Barnett's testimony, we conclude it was impossible for certain subdivision roads to have completely conformed to the original plat.   Thus, because the statutory language allows roads on the plat to be altered, we hold Barnett's altering of certain roads to conform to their existing use was not contrary to the Subdivision Control Act's provisions.   However, we agree with plaintiffs that the extension or vacation of roads inconsistent with the original plat and not evidenced by current usage was improper.   The need for the creation of an assessor's plat does not give the creator free reign to correct all perceived current and future land use problems.   The assessor's plat was to be created to enable the taxing authority to properly assess and collect taxes.   As correctly noted by the trial court, the assessor's plat does not act to alter legal marketable title to the properties affected.   Filing of the assessor's plat does not vacate the original plat or the rights attendant to it.¹  M.C.L. § 560.104;  M.S.A. § 26.430(104).

 We must also reject plaintiffs' argument the assessor's plat improperly combined their several lots.   Plaintiffs contend the combining of their lots on the assessor's plat will force them to undergo the expense of resubdividing their already divided property.   This argument is unpersuasive.   Plaintiffs' property is still subdivided into lots on the original plat which, as noted, is not vacated by the filing of the assessor's plat.   Moreover, the act does not require the surveyor to survey and lay out the boundaries of each “lot.”   Instead it requires the boundaries of each “parcel” to be laid out.  M.C.L. § 560.204;  M.S.A. § 26.430(204).   Lots need only be numbered.  M.C.L. § 560.207;  M.S.A. § 26.430(207).   Thus although the assessor's plat should indicate the existence of the lots contained in the original plat by number, the surveyor need not survey each individual lot.   The surveying of each individual lot of a parcel owned by the same parties not only does not further the purpose of facilitating the proper assessment and taxation of properties but oftentimes, as here, would be cost prohibitive.

Accordingly, we hold the trial court did not err in finding the creation of an assessor's plat was warranted but remand for modification of the proposed plat consistent with this opinion.   We do not retain jurisdiction.

Affirmed in part and reversed in part.   No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.

FOOTNOTES

1.   This does not mean, however, that the assessor's plat may not be used as evidence in some future action for ejectment or quiet title, based on continuous use.

McDONALD, Presiding Judge.