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Published: Friday, 10/7/2005

Eminent domain debate still rages in Michigan

ANN ARBOR, Mich. - Should government have the power to take your land and give it to a private developer to build a shopping mall?

Most of us would swiftly say no. The Michigan Supreme Court last year agreed. Absolutely not, they said in a unanimous decision.

But the U.S. Supreme Court thinks differently. This summer, in a bitterly controversial 5-4 decision, the nation's highest court said yes.

According to the ruling, which came in a Connecticut case, municipalities have broad power to force individuals to sell their land, and then turn that land over to private developers in order to generate tax revenue.

That power is called eminent domain. Governments always have had the power to take land for public use, such as highways or courthouses, provided the owner was fairly reimbursed for the value. In past years, they have sometimes done so for the benefit of private entities, such as railroads and utilities, whose business was seen as essential to the public welfare. But increasingly, states, cities, and counties have been taking land though eminent domain, and then reselling it to private interests.

Ironically, the case that started that trend was also in Michigan. Back in 1981, the cities of Detroit and Hamtramck used eminent domain to buy more than 1,000 homes, churches, and businesses and bulldoze them, often against the owners' wishes.

That was so General Motors could build its vast new Poletown factory. Not long before, Chrysler had closed the ancient sprawling Dodge Main plant, devastating the economy of the area. New development was needed - but many long-time residents bitterly resented the destruction of their neighborhoods.

Nevertheless, Michigan's highest court cleared the way for that to happen. Then last year, the court reversed itself in a case called County of Wayne vs. Hathcock. The earlier decision, it said, was a radical departure from fundamental constitutional principles. "We overrule Poletown in order to vindicate our Constitution, protect the people's property rights, and preserve the legitimacy of the judicial branch," the ruling said.

But then in June the U.S. Supreme Court went exactly the other way. The court's more liberal justices, joined by Anthony Kennedy, agreed that governments could do exactly as they did in Poletown.

That drew outrage across the ideological spectrum, from then-House Majority Leader Tom DeLay (R., Tex.) to the very liberal U.S. Rep. John Conyers of Detroit, a co-founder of the Congressional Black Caucus.

Immediately, new legislation was introduced in Congress and in various legislatures in an attempt to get around the federal decision (Kelo vs. New London, Conn.).

In Michigan, things were left in a state of confusion. Developers at first thought that the Kelo case overturned the Michigan decision, and that eminent domain seizures to boost economic development were fine again.

But apparently not. Patrick Wright, a former Michigan assistant attorney general, noted that the U.S. Supreme Court said states were free to provide more protection, which means that the Michigan decision stands.

Adam Mosseff, a professor of law at Michigan State University and an expert on property law, agreed.

But, he added, it will never be a matter of what legislation is on the table - it's a matter of how the courts will choose to interpret that legislation. Some private property is likely to be condemned if it is in bad shape, and most future battles, both men thought, are likely to center on how the term "blight" is defined.

In the long run, it is likely to come down to, "Should it be determined on a neighborhood basis, or like I prefer, on a parcel by parcel basis?" Mr. Wright said.

Things aren't simple even with Poletown, Michigan's most controversial eminent domain case.

"As a rule, I strongly support private property rights," said Greg Kowalski, a lifelong resident of Hamtramck and the city's historian. "But the Poletown issue really had me temper my view. That project was entirely vital in saving the city of Hamtramck," because the factory replaced the tax revenue lost when the Dodge Main plant closed.

Neither court decision is likely to be the last word. State legislators are scrambling to pass a law codifying Michigan's Supreme Court decision; developers and cash-poor cities are trying to find a way around it.

"At the end of the day, whether you find eminent domain helpful or hurtful is all dependent on if it is your private land being taken away," Mr. Mossoff said.

That may be the one point on which everyone can agree.



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