City of Lansing v. Edward Rose Realty, Inc.
| Decision Date | 21 January 1992 |
| Docket Number | 116532,Nos. 116531,s. 116531 |
| Citation | 192 Mich.App. 551,481 N.W.2d 795 |
| Parties | , 130 P.U.R.4th 616, Util. L. Rep. P 26,184 CITY OF LANSING, Plaintiff-Appellee, v. EDWARD ROSE REALTY, INC., a Michigan corporation, and Trappers Cove Apartments--Phase 3, a Michigan copartnership, Defendants-Appellants, and The Riggs National Bank of Washington, D.C., Defendant. CITY OF LANSING, Plaintiff-Appellee, v. EDWARD ROSE ASSOCIATES, INC., d/b/a Flint Building Company, Inc., Defendant-Appellant, and American Federal Savings & Loan Association, and the Great West Life Assurance Company, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
Alvan P. Knot, City Atty., and Dickinson, Wright, Moon, Van Dusen & Freeman by Gregory L. McClelland and Jeffery V. Stuckey, and Latterman & Associates by Mark A. Latterman, Lansing, for City of Lansing.
Farhat, Story & Kraus, P.C. by Richard C. Kraus, Lansing, and Winston & Strawn by Deborah C. Costlow, Washington, D.C., for Edward Rose Realty, Inc., Trappers Cove Apartments--Phase III, and Edward Rose Associates, Inc.
Before MARILYN J. KELLY, P.J., and MacKENZIE and GRIBBS, JJ.
In these condemnation actions, the City of Lansing seeks permanent easements through two apartment complexes owned by defendants for the purpose of allowing Continental Cablevision to provide cable television service to tenants of the complexes. The proposed condemnation is supported by an ordinance passed by the Lansing City Council that authorizes condemnation proceedings upon the request of a cable television franchisee. Defendants appeal by leave granted from an order upholding the validity of the proposed condemnation and with regard to certain underlying orders involving evidentiary rulings and other procedural matters. We conclude that the proposed condemnation exceeds the city's authority to take private property through the power of eminent domain. Accordingly, we reverse.
In 1971, the City of Lansing, by ordinance, established a nonexclusive franchise system for cable television service to the general public. Under the ordinance, a franchisee must provide public, education, and government channels (PEG channels) carrying local government and education programming, together with facilities for the public to create and broadcast its own programs on these channels. The ordinance also contains an antiredlining provision requiring universal service throughout the city. Further, the ordinance requires a "911 override" allowing the broadcast of information in the event of an emergency. Only Continental Cablevision has obtained a franchise under this ordinance.
From 1980 to 1987, Continental Cablevision contracted with defendants to provide cable television service to residents of defendants' apartment complexes. At the end of the contract term, defendants elected not to renew the contract, and instead purchased and installed private cable television systems, referred to as SMATV (Satellite Master Antenna Television), at the apartment complexes. For a fee in addition to monthly rent, tenants at the apartments can obtain from defendants SMATV service of up to sixty-six channels.
After defendants notified Continental Cablevision that its contract to provide service at the apartment complexes would not be renewed, the Lansing City Council passed Ordinance 753. That ordinance authorizes the city to commence condemnation proceedings upon request of a cable television franchisee whenever the owner of any dwelling refuses, directly or indirectly, to permit any resident of such building to receive franchised cable service. Pursuant to the ordinance, the city, at the behest of Continental Cablevision, passed resolutions condemning easements on defendants' property for the purpose of providing Continental Cablevision service to residents at defendants' apartment complexes. Defendants challenged the condemnation on the basis of public necessity. The trial court found that Ordinance 753 serves a public interest and upheld the condemnation as valid.
Both the Fifth Amendment of the federal constitution and Const. 1963, art. 10, Sec. 2 prohibit the taking of private property without just compensation. Any condemnation must serve a public purpose or public necessity, or the condemnation is invalid. Pere Marquette R. Co. v. United States Gypsum Co., 154 Mich. 290, 297, 117 N.W. 733 (1908). When the power of eminent domain is exercised in a way benefiting specific and identifiable private interests, a court inspects with heightened scrutiny the claim that the public interest is the predominant interest being advanced. Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 634-635, 304 N.W.2d 455 (1981). See also Center Line v. Chmelko, 164 Mich.App. 251, 416 N.W.2d 401 (1987). The public benefit must not only be the primary benefit conferred by the condemnation, but must also be "clear and significant" rather than "speculative or marginal." Poletown, supra, 410 Mich. pp. 634-635, 304 N.W.2d 455.
Defendants contend that because the city's condemnation power in this case was exercised in a way that benefited a private interest--Continental Cablevision--the trial court should have employed the Poletown "heightened scrutiny" standard in examining the city's claim that the public interest is the predominant interest being advanced. The trial court ruled that the heightened scrutiny test does not apply because the easements were to be held by the city and not conveyed to Continental Cablevision.
We think that the trial court's position represents an overly narrow view. At issue is whether "the condemnation power [has been] exercised in a way that benefits specific and identifiable private interests." Poletown, supra, p. 634, 304 N.W.2d 455. (Emphasis added.) In this case, the proposed easement would directly benefit Continental Cablevision by giving it the ability to reach potential new customers. Further, in Chmelko, supra, the heightened scrutiny standard was applied where the land in question was to be "made available to a private party". Id., p. 262, 416 N.W.2d 401. (Emphasis added.) In this case, the easements would be made available to Continental Cablevision and the city would be fully indemnified by Continental Cablevision. In short, the proposed easements are for the purpose of providing essentially commercial cable television service; Continental Cablevision provides such service, the city does not. The easements thus would be the city's in name only. Under these circumstances, where the commercial...
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City of Lansing v. Edward Rose Realty, Inc.
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