City of Center Line, In re, R--91

• Decision Date: 06 April 1972
• Docket Number: No. 36,R--91,36
• Citation: 387 Mich. 260,196 N.W.2d 144
• Parties: In the Matter of the Complaint of the CITY OF CENTER LINE, a Municipal Corporation for the Taking by Condemnation of Private Property for Urban Renewal Development and Other Municipal Public Purposes, Center Line Renewal Project #1, Project Michigan, in the Area Bounded Generally on the North by Dale Avenue, on the West by Liberal Avenue, on the South by Ten Mile Road, and on the East by an Irregular Line Running Generally North and South, Varying from Van Dyke Avenue to Approximately 250 feet East on the East Right-of-Way Line of Van Dyke Avenue. *
• Court: Michigan Supreme Court

Page 144

196 N.W.2d 144

387 Mich. 260

In the Matter of the Complaint of the CITY OF CENTER LINE, a

Municipal Corporation for the Taking by Condemnation of

Private Property for Urban Renewal Development and Other

Municipal Public Purposes, Center Line Renewal Project #1,

Project Michigan R--91, in the Area Bounded Generally on the

North by Dale Avenue, on the West by Liberal Avenue, on the

South by Ten Mile Road, and on the East by an Irregular Line

Running Generally North and South, Varying from Van Dyke

Avenue to Approximately 250 feet East on the East

Right-of-Way Line of Van Dyke Avenue. ^*

No. 36.

Supreme Court of Michigan.

April 6, 1972.

Roy W. Rogensues, Fraser, for City of Center Line, plaintiff and appellant.

Butzel, Long, Gust, Klein & Van Zile, by A. Hilliard Williams, John L. Vanker, Jr., Robert M. Vercruysse, and James M. Smith, Donald E. Brown, Mary M. Conrad, Detroit, for defendant-appellee, Michigan Bell Telephone Co.

Robert E. Butcher, Lincoln Park, for City of Lincoln Park, amicus curiae.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

This suit involves the question of a public utility's right to reimbursement costs in relocating its equipment in connection with an urban renewal project.

The City of Center Line began condemnation proceedings to acquire property for urban renewal pursuant to the provisions of M.C.L.A. § 125.71 et seq.; M.S.A. § 5.3501 et seq. the Rehabilitation of Blighted Areas (RBA) act. Michigan Bell's petition to intervene in the proceedings was denied by the trial judge, but the Court of Appeals reversed ¹ and remanded for determination of Michigan Bell's damages.

Because the precise question was a matter of first impression we granted leave to speak to the issue.

The claim of Michigan Bell is that by virtue of its franchise it has an irrevocable contract right to use the highways of the state which may not be impaired under the provisions of U.S.Const., art. 1, § 10, and Const.1963, art. 1, § 10 nor taken away without payment of just compensation under the provisions of the U.S.Const., A.M. XIV, § 1 and Const.1963, art. 1, § 17, and art. 10, § 2.

The City of Center Line maintains that whatever property rights Michigan Bell may have in the affected city streets, they are subject to the regulation by the City under the police power of the state, and that no taking is involved here which entitles Michigan Bell to reimbursement.

The Court of Appeals noted the 'multitude of decisions from other jurisdictions' holding a utility company had no compensable right under facts similar to those presented here. It cited:

'County of Santa Barbara v. United States (CD Cal., (1967), 269 F.Supp. 855; City of Wichita v. Kansas Gas & Electric Company (1970), 204 Kan. 546, 464 P.2d 196; Consolidated Edison Co. of New York v. Lindsay as Mayor (1964), 24 N.Y.2d 309, 300 N.Y.S.2d 321, 248 N.E.2d 150; New York Telephone Company v. City of Binghamton (1966), 18 N.Y.2d 1520, 272 N.Y.S.2d 359, 219 N.E.2d 184; State Highway Commission v. Clackamas Water District (1967), 247 Or. 216, 428 P.2d 395; Western Union Telegraph Company v. Tarrant County (Tex.Civ.App.1970), 450 S.W.2d 763.'

The Court held, however, that for two reasons Michigan Bell is entitled to reimbursement: 1) The development of the property acquired would be by a private developer who would otherwise benefit by the utility company's loss, and 2) Since Urban Renewal is a 'socially orientated program operating under the guise of the police power' the burden of its costs should be borne by the general taxpaying public, and unless the utility be reimbursed by the condemning authority, the rate paying users of the utility will ultimately bear the cost.

We are not persuaded by the first reason.

In In re Slum Clearance, 331 Mich. 714, 50 N.W.2d 340 (1951) it was claimed that the condemnation proceedings for slum clearance was unconstitutional because the real estate, while taken for a public use, is, after objectionable buildings are razed, to be sold for redevelopment by private persons and that, considering the purposes of the condemnation as a whole, the proposed action is improper and unconstitutional, as condemning the lands of one private person to be devoted to the uses and purposes of another.

This Court held the Slum Clearance Act constitutional saying: (p. 720, 50 N.W.2d p. 343)

'It seems to us that the public purpose of slum clearance is in any event the one Controlling purpose of the condemnation. The jury were not asked to decide any necessity to condemn the parcels involved for any purpose of resale, but only for slum clearance. . . .

'In the instant case, the resale (abating part of the cost of clearance) is not a primary purpose and is incidental and ancillary to the primary and real purpose of clearance. Reconstruction was asked for in the petition and resale is necessary for such purpose, but the resale is not for the purpose of enabling the city nor any private owner to make a profit.'

The same reasoning applies here. The Controlling purpose of the city's plan is to rehabilitate a blighted area. The property is acquired, not for the purpose of redevelopment at a profit to the city or any private developer, but to protect the health, safety, morals and general welfare of the municipality.

Since the controlling purpose is a public use, the circumstance of a private developer's benefit would not change its character.

The second reason is sound, although its expression may be unfelicitous. Whether it is 'inappropriate' for the rate payers to pay these costs or whether they 'should' be borne by the general taxpaying public are legislative rather than judicial judgments.

The conclusion that the legislature did so determine however, is inescapable from a fair reading of the RBA act.

The whole tenor of the act is for the city to acquire private interests through purchase. The inclusion in the definition of real property in Sec. 2(e) of 'every estate interest, Privilege, easement' and the direction to the city to acquire such real property in Sec. 5 obviates the constitutional question of whether it is necessary to reimburse a utility for relocation costs when a public use entails the removal and relocation of equipment.

We hold that the RBA act requires that the city reimburse a utility for costs for removal and relocation of its equipment necessitated by the implementation of an urban renewal plan under the act.

No costs, a public question.

T. M. KAVANAGH, C.J., and BRENNAN and WILLIAMS, JJ., concur.

BLACK, Justice.

My considered view is that Division 2 was right in its determination of Both points made by Judge Danhof, for the panel (26 Mich.App. 659, 182 N.W.2d 769).

The Judge's review of the two points starts on page 661 of his Court's report. To me, it reasons with due judicial vigilance in keeping the ever indispensably leashed police power within constitutional bounds, and in concluding that the real issue before it and now here is one of ascertainment of the pertinent legislative purpose; referring to ...