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Public roads present unique challenges to townships and not just for basic transportation. This E-letter will address the historical development and regulation of roads, the different ways a road may be created (or vacated), and the current funding mechanisms for constructing, improving or repairing roads. Although the responsibility for various aspects of public roads is spread across many governmental agencies, townships often receive the brunt of the complaints when road issues arise. While roads are often viewed as a county responsibility, townships can address local needs including acceptable truck routes and commercial “jake” braking. Beyond supporting their core transportation function, roads and road rights-of-way support several other public functions, from traditional utility services to next generation 5G wireless and “smart” car functionality. Several additional acts control various uses of road rights-of-way. One aspect of the future is clear: the road right-of-way will remain a crowded area.

As the automobile gained ascendance in the early twentieth century, Michigan adopted laws to guide the control and development of roads. As early as 1915 counties were permitted to issue bonds for the development of roads (Covert Act). Initially roads were managed, maintained, and funded at all levels of local government. The Depression changed that. Facing funding challenges and other shortfalls, the McNitt Act (1931) stripped townships of their responsibility over roads. Thoroughfares previously cared for by townships became the responsibility of counties. Shortly thereafter, the state created more funding mechanisms for road maintenance and support, permitting vehicle taxes to support public roads under the Horton Act (1932).

These historical developments remain largely intact today. Funding continues to derive from vehicle taxes, namely registration fees, gas taxes, and weight taxes. However, the amounts and distribution formula are now controlled by Act 51 of 1951. In 1963 Michigan adopted a new state constitution. Article 7, Section 29 grants broad authority to both townships and counties over the use of public roads. This provides the foundation for townships to influence their roads in the present.

When we think of a road, we typically focus on the traveled portion of the highway. A roadway is defined, after all, as the area “improved, designed, or ordinarily used for vehicular travel.” MCL 257.55. But a public right-of-way is more than the roadway itself and is typically at least 66 feet (historically, 4 rods) wide, or 33 feet on either side of a centerline of the road. Roads can be created in several different ways, including 1) declaration or condemnation, 2) public dedication, 3) platting, and 4) creation by user.

A township may petition a circuit court to declare an existing thoroughfare to be a public highway. The court will determine the length and boundaries of the road. The petition must be signed by 51% of property owners with frontage on the road. The county road commission must also provide written consent. If the petition process is unsuccessful, the township can utilize condemnation powers to acquire frontage on the road from any owners who claim the road is not a public highway. Upon successful completion of the condemnation process, the court is required to order the thoroughfare be considered a public highway, with a set length and boundaries.

A landowner may dedicate their land to public use as a road. The township representing the public (or other appropriate public representative) accepts the land for that use. The acceptance can either be an express declaration (typically, via documentation) or with actions that indicate they have accepted and are using the property for the public. This type of road will be presumed to be 66 feet wide, but the landowner may limit the dedication and state a different width.

A formal dedication of roads for public use occurs as part of the platting process. The Land Division Act provides the platting process for creating formal subdivisions of land and the final plats must include and show all public or private roads, streets, alleys, or other public areas. The plat will show the bearing, width, and name of the street. If they are not dedicated to the public (a public dedication can also be found on the final plat) they will be marked as private.

Finally, a road can be created by public use, but several aspects must be met. The property must be used as a road for 10 years, the use must be in the open, notorious, and exclusive. There must be a defined line for the road to follow and public authorities must have accepted the road through its acts, such as maintaining the area as if it were any other public road. Once again, the right-of-way will be 66 feet wide.

A paper road is a road created by platting under the Land Division Act, but never constructed or used. This is more common for vacation destinations or areas with substantial waterfronts. In this case, the road only exists on paper. Vacating a paper road follows a process from the Land Division Act, providing a court process for vacating paper roads. A complaint is filed in circuit court, and notice is provided to all property owners within 300 feet and various public agencies. The Court has authority to vacate the paper road, at which point the property that was the paper road vests in the adjoining properties or landowners.​

A road may be created and established, but it also needs funding for construction and continuing maintenance. Governor Gretchen Whitmer memorably campaigned on the road funding and maintenance issue. However, the Legislature and the Governor have not agreed on any changes to road funding at this time. Still, total road and transportation services spending has been increasing from $2.25 billion in 2010-2011 (inflation adjusted) to $3.64 billion in the 2018-2019 fiscal year.

Generally, and certainly from a township’s perspective, the county road commissions have the lion’s share of responsibility for these tasks. In some special circumstances, a township can contract with the road commission to take on a larger role. In special cases, and under MCL 247.670a, a township with more than 15,000 people may enter into a contract each year to improve and preserve county roads if in the previous year and current year the township levied at least 1 mil. A contract under this section must be renewed every year and has other financial and matching fund requirements.

Road commissions do not have taxing authority and thus funding must come from different areas. Two areas provide the bulk of funding: (1) vehicle registrations and (2) gas taxes. Recently state income tax revenue has also provided funding for roads. The gas tax is a fixed $0.263 per gallon and is not adjusted for the price of fuel per gallon. Electronic vehicles and improvements in fuel efficiency have reduced the contribution to road costs for each mile driven. The funds collected for roads are shared with the Michigan Department of Transportation, counties, cities, and villages. Townships are conspicuously absent! The funds are distributed under Act 51 based on 1) population, 2) miles of road (with credits/adjustments for some urban road mileage), and 3) snowfall. A county cannot mandate townships fund road improvements. They also cannot spend Michigan Transportation Funds for construction on county local roads without matching funds from another source. Those funds can come from appropriations by the county Board of Commissioners, other county taxes, or townships. From a practical standpoint, although the township is not forced to fund road improvements, a township’s failure to fund roads can result in the county allocating its limited funds elsewhere in the county.

Township’s may consider several different funding sources to partner with county road commissions. While general fund appropriations are permissible, many communities have passed either specific road millages or road bonds. A specific millage allows the township to have specific matching funds available each year for projects while a bond typically will permit the township to undertake construction and repair of their roads more quickly by funding the projects upfront with a bond. A township may also consider special assessment districts for roads, either township wide or in specific areas. A special assessment district can target a specific or special need, such as road repairs in a downtown or historical district.

Roads can also be deemed “abandoned.” Similar to vacating a paper road, a particular procedure and proof is required. It is necessary to show an intent to relinquish the road and that there were specific acts putting that intention into effect. Acts that can show abandonment include: 1) decertification by a road commission; 2) fencing of the road by private parties; or 3) lack of use or lack of public maintenance. Like a paper road, ownership of the real property vests in the adjoining properties or landowners.

Vacating a road that borders a lake or stream can get more complex. If the vacation of the road would result in a loss of public access, then a township may retain the property as an ingress and egress point. Rather than automatically going to the adjoining landowners, the township has first priority to obtain and control the property. The DNR then gains a right of first refusal with respect to any transfer. If the township retains control of the road, it must maintain the public access to avoid litter, unsanitary conditions, undue noise, and congestion. Repeated failure to do so can lead to the road being closed.

A township may also craft ordinances regulating certain road uses to address specific needs of the community and protect local roads. Most people are familiar with “No Trucks” signs. These arise from a local truck route ordinance. The township may pass a police power ordinance restricting truck traffic to certain specified routes. Truck traffic can then be kept off smaller, local roads and directed to state trunk lines that have better truck capacity. It can also be an effective way to keep truck traffic from attempting to avoid a scale along the freeway. Townships may also prohibit “jake braking” or air braking along certain roads. These mechanisms are quite loud and may disturb the peace and quiet of residential areas. In both of theses cases, the Township passes the ordinance for their community and then the road commission erects the required signs at designated areas. Townships should work with their road commissions and should be prepared to pay for the cost of the signs. If the ordinance is reasonable, then the road commission must erect the signs.

Townships retain control over the right-of-way (as distinct from the road). As a general rule, utilities such as electric, gas, water and sewer, must obtain the township’s consent to occupy the right-of-way. The township must also issue a franchise to do business within the Township. A franchise can be valid for up to 30 years and the township cannot unreasonably withhold consent. Specific statutes may control specific utility types, including the METRO Act, the Uniform Video Services and Local Franchise Act, and the Small Cell Facilities Deployment Act.

The METRO Act applies to telephone and Internet providers. The Michigan Public Service Commission (MPSC) enforces the process established in the Act, which requires a unilateral or bilateral permit to operate in the right-of-way. The fees are fixed by statute at $500. The permit language is specified by the MPSC and any deviation must be agreed to by the parties mediated through the MPSC. Applications must be approved or denied within 45 days.

The Uniform Video Services and Local Franchise Act establishes a uniform franchise for use by cable television providers and is also governed by the MPSC. Applications must be promptly reviewed. If the application is incomplete, the township must notify the applicant within 15 days and a complete application must be approved within 30 days. The provider must voluntarily agree to any deviation from the uniform franchise terms. The cable television franchise lasts for 10 years but may be renewed. Franchise fees are again fixed by statute but are set at 5% of gross revenues with an additional 2% for PEG fees. A permit fee can be required but is limited to actual, direct costs. Access to the right of way must be open, comparable, nondiscriminatory, and competitively neutral between providers.

The latest development in road rights-of-way is the Small Cell Facilities Deployment Act. Enacted at the end of 2018, see our December 2018 E-letter (Click Here) on that Act for specific details. The act defines “small cell” and “micro” wireless facilities and allows for their installation in the right-of-way. There are complicated approval timelines. Unfortunately, townships’ control in this area is now more limited. Antennas are also allowed on all types of utility poles. The act envisions supporting deployment of 5G cellular service and wireless facilities to support autonomous vehicles. Ideally, the existing technologies will promote greater traffic safety and the availability of small cell facilities will support and promote the innovation of additional technologies for traffic safety.

No matter what the future holds, roads and their rights-of-way will remain crowded places in need of maintenance and continued attention from townships.

— William K. Fahey and Matthew A. Kuschel

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

Copyright © 2019 Fahey Schultz Burzych Rhodes PLC