Dep't of Transp. v. Tomkins
| Decision Date | 02 March 2006 |
| Docket Number | Docket No. 256038. |
| Citation | 270 Mich. App. 153,715 N.W.2d 363 |
| Parties | MICHIGAN DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. Rodney Tomkins and Darcy TOMKINS, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Raymond O. Howd, First Assistant Attorney General, and Robert L. Mol, Assistant Attorney General, for the plaintiff.
Rhoades McKee (by Scott J. Steiner), Grand Rapids, for the defendants.
Before: WHITBECK, C.J., and BANDSTRA and MARKEY, JJ.
In this condemnation action, defendants Rodney Tomkins and Darcy Tomkins appeal by right the trial court's order granting plaintiff Michigan Department of Transportation (MDOT) summary disposition under MCR 2.116(C)(10). We reverse and remand.
This case stems from a right-of-way that MDOT acquired for construction of the M-6 highway just outside of Grand Rapids. The 20-mile, $420 million M-6 project largely redefined most of the Grand Rapids metropolitan area by connecting I-96 to M-37 and U.S. 131, and by providing a limited access highway loop around the Grand Rapids area. Part of the construction project required MDOT to construct various bridges, or overpasses, to continue existing county roads over the new M-6 highway. One such county road was Kenowa Avenue. The Tomkinses' single-family home was situated on approximately two acres of land abutting Kenowa Avenue. After the Tomkinses rejected MDOT's offer of $4,200 for a 49-foot-wide by 120-foot-long strip of their property located parallel to Kenowa Avenue, MDOT filed a condemnation complaint pursuant to the Uniform Condemnation Procedures Act (UCPA), MCL 213.51 et seq.
Both parties' expert appraisers agreed that the fair market value of the strip of property taken was $3,800. However, the Tomkinses alleged that they were entitled to an additional $48,200 in damages attributable to the effects of the M-6 highway. Tomkinses' appraiser referred to these damages as "the highway effects." Specifically, the Tomkinses' appraiser took into account "the proximity of the subject property to the highway" and the additional "dust, dirt, noise, vibration, and smell" when calculating the additional damages.
MDOT filed a motion in limine, arguing that § 20(2) of the UCPA1 precluded the Tomkinses from presenting evidence of the general effects of the project to determine just compensation. Alternatively, MDOT sought summary disposition under MCR 2.116(C)(8) and Spiek v. Dep't of Transportation,2 arguing that a claim for noncompensable damages, like general "highway effects," in a condemnation action failed to state a claim on which relief may be granted. The Tomkinses argued that just compensation in a partial taking must include compensation for everything that causes a diminution in the market value of the remaining property, including "highway effects." The Tomkinses further argued that § 20(2) of the UCPA was an unconstitutional limitation on their right to just compensation.
In granting MDOT's motion in limine, the trial court ruled that § 20(2) of the UCPA was clear and that the statute's method of determining just compensation in condemnation actions was constitutional. The trial court explained that "[i]t would make no sense to allow [the Tomkinses] to bootstrap themselves into a position of being compensated for M-6 when all that's taken is a narrow strip along Kenowa," a taking that the trial court concluded was only incidentally related to the M-6 project. Accordingly, the trial court held that the general effects of the M-6 highway project would not be considered in determining the Tomkinses' just compensation.
MDOT filed a motion for summary disposition under MCR 2.116(C)(10) and entry of final judgment, arguing that because the trial court's order barred the Tomkinses' $48,200 claim relating "highway effects" and because both parties had agreed that just compensation for the land actually taken was $3,800, there were no other disputed claims. The Tomkinses stipulated the entry of a final judgment awarding them $3,800, plus statutory interest, expert fees, and attorney fees.
Under MCR 2.116(C)(10), a party may move for dismissal of a claim on the grounds that there is no genuine issue with respect to any material fact and that the moving party is entitled to judgment as a matter of law. We review de novo the trial court's ruling on a motion for summary disposition.3 Where a motion for summary disposition also challenges the constitutionality of a statute, we also review de novo that question of law.4 Further, when the decision regarding the admission of evidence involves a preliminary question of law, such as whether a statute precludes the admissibility of the evidence, we review de novo that issue.5
"`Eminent domain' or `condemnation' is the power of a government to take private property."6 The Fifth Amendment of the United States Constitution provides that the federal government may not take private property unless it is done for a public use and with just compensation.7 The Michigan Constitution contains a similar clause requiring just compensation in these circumstances: "Private property shall not be taken for public use without just compensation. . . ."8 Similarly, the UCPA requires that courts "ascertain and determine just compensation to be made for the acquisition of the [condemned] property."9 "This reiteration of the constitutional language is significant because to the degree the Constitution has been construed to outline the nature of `just compensation,' the statute must be similarly construed because no act of the Legislature can take away what the Constitution has given."10
"Just compensation . . . must put the party injured in as good position as he would have been if the injury had not occurred."11 In keeping with this principle, the Michigan Supreme Court has held that determination of "just compensation" requires "that the proper amount of compensation for the property takes into account all factors relevant to market value."12 The Court further clarified that there was no indication in the UCPA that the Legislature intended to abrogate this established meaning of "just compensation."13 "Indeed, to attribute such an intent, i.e., the intent to diminish a constitutional standard by statute, is to place the legislators in the posture of acting unconstitutionally," which is a construction that the Court will seek to avoid "unless no other construction is possible."14 Here, however, we conclude that, under the circumstances of this case, no other construction is possible. Our review of Michigan precedent and other persuasive authority necessitates our conclusion that the limitation on general damages set forth in § 20(2) of the UCPA, as applied to partial taking cases, impermissibly conflicts with the established constitutional meaning of "just compensation."
A condemnee's damages are, in general, measured by the fair market value of the property taken.15 But where only a portion of the whole parcel is taken, it is possible for the remaining property to also suffer damages attributable to the taking.16 In such a case, the value of the property taken is allowed as direct compensation, but the remaining portion's decrease in value, by virtue of the use made of the property taken, is also allowable as compensation even though this is strictly consequential damage in nature.17 This diminution in value, or "severance damages," is measured by calculating the difference between the fair market value of the remaining property before and after the taking.18 Thus, "[t]he proper measure of damages in a condemnation case involving a partial taking consists of the fair market value of the property taken plus severance damages to the remaining property[.]"19 Indeed, the Michigan Standard Jury Instructions provide that, in valuing the property left after the taking, a jury should take into account various factors, including
(1) its reduced size, (2) its altered shape, (3) reduced access, (4) any change in utility or desirability of what is left after the taking, (5) the effect of the applicable zoning ordinances on the remaining property, and (6) the use which the [name of condemning authority] intends to make of the property it is acquiring and the effect of that use upon the owner's remaining property.[20]
And according to the Michigan Supreme Court, "any evidence that would tend to affect the market value of the property as of the date of condemnation is relevant[,]... to the extent that the [evidence] would have affected the price which a willing buyer would have offered for the property just prior to the taking.'"21 However, the rule is not without limitations. An owner should not to be enriched because of the condemnation; thus, "the total damages awarded may not exceed the fair market value of the whole parcel before the taking."22
The plain language of § 20(2) of the UCPA excludes consideration of the general effects of a public project in determining just compensation:
The general effects of a project for which property is taken, whether actual or anticipated, that in varying degrees are experienced by the general public or by property owners from whom no property is taken, shall not be considered in determining just compensation. A special effect of the project on the owner's property that, standing alone, would constitute a taking of private property under section 2 of article X of the state constitution of 1963 shall be considered in determining just compensation. To the extent that the detrimental effects of a project are considered to determine just...
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