Kent County Road Com'n v. Hunting
| Decision Date | 29 August 1988 |
| Docket Number | 100694,Docket Nos. 100693 |
| Citation | 428 N.W.2d 353,170 Mich.App. 222 |
| Parties | KENT COUNTY ROAD COMMISSION, Plaintiff-Appellee, v. Allen I. HUNTING and Helen J. Hunting, Robert A. Riebel and Kelly Marie Riebel, Steven L. Clark and Diane L. Clark, and Grand Rapids Golf Club, Defendants-Appellants. MICHIGAN ENVIRONMENTAL PROTECTION FOUNDATION, a Michigan nonprofit corporation, Richard C. Miller, Robert W. Pemberton, Robert E. Daley, Steven J. Buth, Amkro Associates, a Michigan corporation, Grand Rapids Golf Club, a Michigan corporation, Robert A. Riebel, Jeffrey W. Allen, and Kay E. McDonough, Plaintiffs-Appellants, v. KENT COUNTY ROAD COMMISSION, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Varnum, Riddering, Schmidt & Howlett (by Peter A. Smit and Matthew D. Zimmerman), Grand Rapids, for Kent County Road Com'n.
Peter W. Steketee, Grand Rapids, for Allen L. Hunting, Michigan Environmental Protection Foundation, et al.
Before CYNAR, P.J., and WEAVER and PAJTAS, * JJ.
This is a consolidated action. Docket No. 100693 is a condemnation action brought by the Kent County Road Commission. Defendants appeal by leave granted from the May 11, 1987, order which denied their motion to review necessity. Docket No. 100694 is an action brought by the Michigan Environmental Protection Foundation (MEPF), along with several other persons, who sought to enjoin the proposed road commission project. In the latter case, plaintiffs appeal as of right from a denial of their motion for a preliminary injunction pendente lite and the dismissal of their case with prejudice.
In June, 1986, the road commission commenced condemnation proceedings pursuant to Michigan's Uniform Condemnation Procedures Act, M.C.L. Sec. 213.51 et seq.; M.S.A. Sec. 8.265(1) et seq., against several landowners who own property along a 1 1/2 mile stretch of Crahen Avenue, which runs between M-21 and Leonard Street in Grand Rapids Township. The road commission decided that it would be necessary to improve Crahen Avenue and sought right-of-way easements, muck removal permits, grading and drainage rights. The commission also wanted to acquire fee title to two small parcels of property owned by the Grand Rapids Golf Club.
On July 1, 1986, defendant landowners filed a motion to review necessity, claiming there was no need for the project because the proposed widening would destroy at least ninety roadside trees. According to defendants, many of these trees were over one hundred years old and of historical significance since they were allegedly planted for the American centennial. In addition, defendants claimed that the project was not justified by traffic or safety considerations and there were other more feasible alternatives to the project.
On July 24, 1986, the MEPF, along with some of the condemnation defendants from the original suit, filed a three-count complaint against the road commission alleging inter alia violations of the Michigan Environmental Protection Act (MEPA), M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et seq. Plaintiffs sought a temporary restraining order to halt the project, a permanent injunction and a declaratory judgment that Crahen Avenue is a "common law" road.
Both cases were consolidated and testimony was taken from several witnesses during the course of a five-day bench trial held in December, 1986. David Groenleer, a road commission civil engineer, testified that Crahen Avenue is a 1 1/2 mile long two-lane road running north and south between M-21 and Leonard Street. It is designated as a county primary road. The road surface is in poor condition. The pavement width is between twenty and twenty-one feet. The shoulder width is anywhere between two or three feet to no shoulder at all in some spots. The speed limit is forty-five miles per hour. The traffic count records show 1,200 to 1,400 vehicles travel on the road each day.
The county first considered widening the road in 1979 because of an increase in traffic and because the road surface was breaking up. Simply resurfacing the road was not a viable option due to the bad clay subsoil which causes the pavement to break up. In 1985, the original plan was revised in order to save trees and reduce the impact on adjoining lands. Lane width was reduced from twelve to eleven feet and the shoulder width was reduced from eight to five feet. The revised plan called for the cutting down of about ninety trees. This figure has now been reduced to seventy- nine trees. Once the project is underway, however, adjustments in the slope of the drainage ditch may save an additional twenty trees (requiring approximately fifty-nine to sixty to be cut). The county agreed to replace any trees that would be removed due to construction. The current plan is to reconstruct the road to have a surface width of twenty-two feet and five-foot shoulders on each side. Groenleer also stated that a ditch drainage system would be better than a buried drain system as proposed by the parties opposing the project.
Robert L. Morris, a traffic planning expert, testified for the landowners. He stated that it was not necessary to cut down the trees. Sufficient improvements could be made by having a twenty-two foot paved roadway, with two-foot shoulders and buried drainage pipes. The additional costs for burying the pipes would be about $80,000. According to Morris, his design plan calling for narrow shoulders would be safer than the commission's plan since drivers would perceive the road as a slower speed zone.
On cross-examination, Morris admitted to spending one to one and one-half hours walking up and down Crahen Avenue. He took no notes, no photographs, no measurements, no traffic counts, performed no speed or slope analysis, and had no knowledge of the current drainage system, average daily traffic count, maintenance history or future development plans. Nevertheless, he still opined that the commission project was a good one.
Richard Miller, a litigant in this case and a resident of Crahen Avenue, attempted to testify about what he heard in a conversation he had with two gentlemen twenty years earlier regarding how the large trees came to exist along Crahen Avenue. The commission objected on hearsay grounds. The trial court permitted the testimony. The testimony revealed that the trees had been planted for America's centennial. After the court heard the testimony, it was subsequently excluded as not falling within the hearsay exception of MRE 803(20) (). Miller claimed that removal of the three old trees from his front yard would reduce the value and enjoyment of his property.
Eric Bourdo, the former Dean of the School of Forestry and Wood Products at Michigan Technological University, testified for the landowners as well. He opined that the trees were about one hundred years old and probably had been planted. He said that the Davey Tree Company study prepared for the commission was superficial since it concluded that the trees would live for about ten to twenty years. Bourdo said that no one knows how long the trees would live. He agreed that these trees are not unique. There are thousands of similar trees across Michigan and the country. He also agreed that "a lot" of the trees are sick and would die within ten to one hundred years.
Following the trial, the court issued its opinion in both cases from the bench. He concluded that the county had established necessity for the project, the parties opposed to the project had failed to make out a prima facie case under MEPA and dismissed their complaint and, since the roadway is sixty-six feet wide, the only portion the county has to condemn is the portion falling outside of the sixty-six foot right of way. On May 11, 1987, orders were entered in both cases from which the parties now appeal.
Initially, defendant landowners claim that the trial court erred in finding that they failed to introduce sufficient evidence to rebut the highway by user statute's 1 presumption that the Crahen Avenue right of way is sixty-six feet wide. Before addressing this claim, we will briefly address defendants' argument that the trial court improperly employed the standard of review of the commission's determination of necessity.
The commission sought to acquire certain grading rights, muck removal rights and fee parcels outside of the sixty-six foot right of way under the condemnation act. The act itself sets forth the scope of court review of a public agency's determination of necessity. The agency's determination of public necessity is binding on the court in the absence of a showing of fraud, error of law, or abuse of discretion. M.C.L. Sec. 213.56(2); M.S.A. Sec. 8.265(6)(2). In challenging an agency's determination of necessity, the property owners bear the burden of showing a lack of public necessity, either by fraud, error of law or abuse of discretion. City of Center Line v. Chmelko, 164 Mich.App. 251, 257, 416 N.W.2d 401 (1987). In this case, the landowners claim that the trial court misapplied the standard of review because the court ignored the mandate of State Highway Comm v. Vanderkloot, 392 Mich. 159, 220 N.W.2d 416 (1974). In Vanderkloot, supra, p. 166, 220 N.W.2d 41, our Supreme Court held that there is an environmental element in judicial review for "fraud or abuse of discretion" in condemnation matters. Contrary to the landowners' claim that the trial court failed to follow Vanderkloot, our review of the court's opinion clearly indicates that the court was aware of the case and dealt with the MEPA issue, devoting eight pages of its opinion to that analysis. The court clearly followed Vanderkloot and considered the environmental effects of the proposed road project in connection with the necessity review.
We now focus our attention on the highway by user issue. "Highway by user" is a...
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