Wayne County v. Hathcock, Docket No. 124070

CourtSupreme Court of Michigan
Citation684 N.W.2d 765,471 Mich. 445
Decision Date30 July 2004
PartiesCOUNTY OF WAYNE, Plaintiff-Appellee, v. Edward HATHCOCK, Defendant-Appellant. County of Wayne, Plaintiff-Appellee, v. Aaron T. Speck and Donald E. Speck, individuals, Defendants-Appellants. County of Wayne, Plaintiff-Appellee, v. Aubins Service, Inc., David R. York, Trustee, David R. York Revocable Living Trust, Defendants-Appellants. County of Wayne, Plaintiff-Appellee, v. Jeffrey J. Komisar, Defendant-Appellant. County of Wayne, Plaintiff-Appellee, v. Robert Ward and Lela Ward, Defendants-Appellants, and Henry Y. Cooley, Defendant. County of Wayne, Plaintiff-Appellee, v. Mrs. James Grizzle and Michael A. Baldwin, Defendant-Appellants, and Ramie Fakhoury, Defendant. County of Wayne, Plaintiff-Appellee, v. Stephanie A. Komisar, Defendant-Appellant. County of Wayne, Plaintiff-Appellee, v. Thomas L. Goff, Norma Goff, Mark A. Baker, Jr., and Kathleen A. Barker, Defendants-Appellants. County of Wayne, Plaintiff-Appellee, v. Vincent Finazzo, Defendant-Appellant, and Aubrey L. Gregory and Dulcina Gregory, Defendants.
Docket NumberDocket No. 124072,Docket No. 124078. Calendar No. 7.,Docket No. 124077,Docket No. 124076,Docket No. 124075,Docket No. 124074,Docket No. 124070,Docket No. 124071,Docket No. 124073

684 N.W.2d 765
471 Mich. 445

COUNTY OF WAYNE, Plaintiff-Appellee,
v.
Edward HATHCOCK, Defendant-Appellant.
County of Wayne, Plaintiff-Appellee,
v.
Aaron T. Speck and Donald E. Speck, individuals, Defendants-Appellants.
County of Wayne, Plaintiff-Appellee,
v.
Aubins Service, Inc., David R. York, Trustee, David R. York Revocable Living Trust, Defendants-Appellants.
County of Wayne, Plaintiff-Appellee,
v.
Jeffrey J. Komisar, Defendant-Appellant.
County of Wayne, Plaintiff-Appellee,
v.
Robert Ward and Lela Ward, Defendants-Appellants, and
Henry Y. Cooley, Defendant.
County of Wayne, Plaintiff-Appellee,
v.
Mrs. James Grizzle and Michael A. Baldwin, Defendant-Appellants, and
Ramie Fakhoury, Defendant.
County of Wayne, Plaintiff-Appellee,
v.
Stephanie A. Komisar, Defendant-Appellant.
County of Wayne, Plaintiff-Appellee,
v.
Thomas L. Goff, Norma Goff, Mark A. Baker, Jr., and Kathleen A. Barker, Defendants-Appellants.
County of Wayne, Plaintiff-Appellee,
v.
Vincent Finazzo, Defendant-Appellant, and
Aubrey L. Gregory and Dulcina Gregory, Defendants

Docket Nos. 124070, 124071, 124072, 124073, 124074, 124075, 124076, 124077, 124078. Calendar No. 7.

Supreme Court of Michigan.

Argued April 21, 2004.

Decided July 30, 2004.


684 N.W.2d 768
Zausmer, Kaufman, August & Caldwell, P.C. (by Mark J. Zausmer and Mischa M. Gibbons), Farmington Hills, MI, for the plaintiff

684 N.W.2d 769
Ackerman & Ackerman, P.C. (by Alan T. Ackerman and Darius W. Dynkowski) [Troy, MI], Plunkett & Cooney, P.C. (by Mary Massaron Ross), Detroit, MI, and Allan Falk, P.C. (by Allan S. Falk), Okemos, MI, for the defendants

Martin N. Fealk, Taylor, MI, for defendants Speck.

Kupelian Ormond & Magy, P.C. (by Stephon B. Bagne), Southfield, for amici curiae the International Council of Shopping Centers, Inc.

Secrest, Wardle, Lynch, Hampton, Truex and Morley (by Gerald A. Fisher and Thomas R. Schultz), Farmington Hills, for amici curiae the Public Corporation Law Section of the State Bar of Michigan.

Miller, Canfield, Paddock and Stone, P.L.C. (by Thomas C. Phillips, Clifford T. Flood, Jaclyn Shoshana Levine, and Thomas C. Phillips), Lansing, for amici curiae the Michigan Municipal League.

Dykema Gossett P.L.L.C. (by Richard D. McLellan and Julie A. Karkosak), Lansing, for amici curiae the Michigan Economic Development Corporation.

Monghan, LoPrete, McDonald, Yakima, Grenke & McCarthy (by Thomas J. McCarthy), Bloomfield Hills, for amici curiae the city of Dearborn.

Steinhardt Pesick & Cohen, P.C. (by H. Adam Cohen and Jason C. Long), for amici curiae the Adell Children's Funded Trusts.

Lewis & Munday, P.C. (by David Baker Lewis, Brian J. Kott, Susan D. Hoffman, and Darice E. Weber), Detroit, for amici curiae the Economic Development Corporation of the City of Detroit, the City of Detroit Downtown Development Authority, and the Michigan Downtown and Financing Association.

Williams Acosta, P.L.L.C. (by Avery K. Williams), Detroit, for amici curiae the city of Detroit.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and S. Peter Manning, Assistant Attorney General, Lansing, for amici curiae the Environment, Natural Resources, and Agriculture Division.

Ronald Reosti, Detroit, Ralph Nader, Washington, D.C., and Alan Hirsch, Williamstown, MA, for amici curiae the citizens of Michigan.

John F. Rohe, Petoskey, and Georgetown Environmental Law & Policy Institute (by Robert G. Dreher), Washington, D.C., for amici curiae the National Congress for Community Economic Development.

Marc K. Shaye, Franklin, James S. Burling, and Timothy Sandefur, Sacramento, CA, for amici curiae the Pacific Legal Foundation.

Kary L. Moss and Michael J. Steinberg, Detroit, for amici curiae the American Civil Liberties Union Fund of Michigan.

Law Office of Parker and Parker (by John Ceci), Howell, and Institute for Justice (by Dana Berliner, William H. Mellor, Washington, D.C., and Ilya Somin), Assistant Professor of Law, Arlington, VA, for amici curiae the Institute for Justice and Mackinac Center for Public Policy.

Opinion

YOUNG, J.

We are presented again with a clash of two bedrock principles of our legal tradition: the sacrosanct right of individuals to dominion over their private property, on the one hand and, on the other, the state's authority to condemn private property for the commonwealth. In this case, Wayne County would use the power of eminent domain to condemn defendants' real properties for the construction of a 1,300-acre business and technology park. This proposed

684 N.W.2d 770
commercial center is intended to reinvigorate the struggling economy of southeastern Michigan by attracting businesses, particularly those involved in developing new technologies, to the area

Defendants argue that this exercise of the power of eminent domain is neither authorized by statute nor permitted under article 10 of the 1963 Michigan Constitution, which requires that any condemnation of private property advance a "public use." Both the Wayne Circuit Court and the Court of Appeals rejected these arguments — compelled, in no small measure, by this Court's opinion in Poletown Neighborhood Council v. Detroit.1 We granted leave in this case to consider the legality of the proposed condemnations under MCL 213.23 and art. 10, § 2 of our 1963 Constitution.

We conclude that, although these condemnations are authorized by MCL 213.23, they do not pass constitutional muster under art. 10, § 2 of our 1963 constitution. Section 2 permits the exercise of the power of eminent domain only for a "public use." In this case, Wayne County intends to transfer the condemned properties to private parties in a manner wholly inconsistent with the common understanding of "public use" at the time our Constitution was ratified. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the Wayne Circuit Court for entry of summary disposition in defendants' favor.

FACTS AND PROCEDURAL HISTORY

In April 2001, plaintiff Wayne County initiated actions to condemn nineteen parcels of land immediately south of Metropolitan Airport. The owners of those parcels, defendants in the present actions, maintain that these condemnations lack statutory authorization and exceed constitutional bounds.

This dispute has its roots in recent renovations of Metropolitan Airport. The county's $2 billion construction program produced a new terminal and jet runway and, consequently, raised concerns that noise from increased air traffic would plague neighboring landowners. In an effort to obviate such problems, the county, funded by a partial grant of $21 million from the Federal Aviation Administration (FAA), began a program of purchasing neighboring properties through voluntary sales. Eventually, the county purchased approximately five hundred acres in nonadjacent plots scattered in a checkerboard pattern throughout an area south of Metropolitan Airport.

Wayne County's agreement with the FAA provided that any properties acquired through the noise abatement program were to be put to economically productive use. In order to fulfill this mandate, the county, through its Jobs and Economic Development Department, developed the idea of constructing a large business and technology park with a conference center, hotel accommodations, and a recreational facility. Thus, the "Pinnacle Project" was born.

The Pinnacle Project calls for the construction of a state-of-the-art business and technology park in a 1,300-acre area adjacent to Metropolitan Airport. The county avers that the Pinnacle Project will

create thousands of jobs, and tens of millions of dollars in tax revenue, while broadening the County's tax base from predominantly industrial to a mixture of industrial, service and technology. The Pinnacle Project will enhance the image of the County in the development community,
684 N.W.2d 771
aiding in its transformation from a high industrial area, to that of an arena ready to meet the needs of the 21st century. This cutting-edge development will attract national and international businesses, leading to accelerated economic growth and revenue enhancement.

According to expert testimony at trial, it is anticipated that the Pinnacle Project will create thirty thousand jobs and add $350 million in tax revenue for the county.

The county planned to construct the business and technology park in a 1,300-acre area that included the five hundred acres purchased under the federally funded noise abatement program. Because the county needed to acquire more land within the project area, it began anew to solicit voluntary sales from area landowners. This round of sales negotiations enabled the county to purchase an additional five hundred acres within the project area.

Having acquired over one thousand acres, the county determined that an additional forty-six parcels distributed in a checkerboard fashion throughout the project area were needed for the business and technology park. The county apparently determined that further efforts to negotiate additional voluntary sales would be futile and decided instead to invoke the power of eminent domain. Thus, on July 12, 2000, the Wayne County Commission adopted a Resolution of Necessity and Declaration of Taking (Resolution of Necessity) authorizing the acquisition of the remaining three hundred acres needed for the Pinnacle Project.

The remaining properties were appraised as required by the Uniform Condemnation Procedures Act (UCPA),2 and the county issued written offers based on these appraisals to the property owners. Twenty-seven more property owners accepted these offers and sold their parcels to the county. But according to the county's estimates, nineteen additional parcels were still needed for the Pinnacle Project. These properties, owned by defendants, are the subject of the present condemnation actions.

In late April 2001, plaintiff initiated condemnation actions under the UCPA. In response, each property owner filed a motion to...

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126 practice notes
  • Rafaeli, LLC v. Oakland Cnty., Docket No. 156849
    • United States
    • Supreme Court of Michigan
    • July 17, 2020
    ...facilitate economic development was a permissible "public use" under the Fifth Amendment's Takings Clause), with Wayne Co. v. Hathcock , 471 Mich. 445, 684 N.W.2d 765 (2004) (holding that a similar condemnation and transfer was not a permissible "public use" under Michigan's Takings Clause)......
  • Michigan Dept. of Transp v. Tomkins, Docket No. 132983.
    • United States
    • Supreme Court of Michigan
    • June 11, 2008
    ...468 Mich. at 113, 659 N.W.2d 597. 14. Phillips v. Mirac, Inc., 470 Mich. 415, 422, 685 N.W.2d 174 (2004). 15. Wayne Co. v. Hathcock, 471 Mich. 445, 468, 684 N.W.2d 765 16. Silver Creek Drain Dist. v. Extrusions Div., Inc., 468 Mich. 367, 376, 663 N.W.2d 436 (2003). 17. Id. at 374, 663 N.W.2......
  • City of Novi v. Robert Adell Children's Funded Trust, Docket No. 122985. Calendar No. 6.
    • United States
    • Supreme Court of Michigan
    • July 20, 2005
    ...was a public use. We granted the city of Novi's application for leave to appeal after issuing our decision in Wayne Co. v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 (2004). 471 Mich. 889, 687 N.W.2d 297 II Under the Michigan Constitution, private property shall not be taken for public use wit......
  • In re Trade Partners, Inc., Investors Litigation, MDL Docket No. 1846.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 15, 2008
    ...Havlik, 418 Mich. 350, 361-63, 343 N.W.2d 181 (1984)). Accord Devillers, 473 Mich. at 587, 702 N.W.2d 539; County of Wayne v. Hathcock, 471 Mich. 445, 485 n. 98, 684 N.W.2d 765, 787 (2004). "Even when a decision meets the threshold criterion for prospective application because it clearly es......
  • Request a trial to view additional results
124 cases
  • Rafaeli, LLC v. Oakland Cnty., Docket No. 156849
    • United States
    • Supreme Court of Michigan
    • July 17, 2020
    ...facilitate economic development was a permissible "public use" under the Fifth Amendment's Takings Clause), with Wayne Co. v. Hathcock , 471 Mich. 445, 684 N.W.2d 765 (2004) (holding that a similar condemnation and transfer was not a permissible "public use" under Michigan's Takings Clause)......
  • Michigan Dept. of Transp v. Tomkins, Docket No. 132983.
    • United States
    • Supreme Court of Michigan
    • June 11, 2008
    ...468 Mich. at 113, 659 N.W.2d 597. 14. Phillips v. Mirac, Inc., 470 Mich. 415, 422, 685 N.W.2d 174 (2004). 15. Wayne Co. v. Hathcock, 471 Mich. 445, 468, 684 N.W.2d 765 16. Silver Creek Drain Dist. v. Extrusions Div., Inc., 468 Mich. 367, 376, 663 N.W.2d 436 (2003). 17. Id. at 374, 663 N.W.2......
  • City of Novi v. Robert Adell Children's Funded Trust, Docket No. 122985. Calendar No. 6.
    • United States
    • Supreme Court of Michigan
    • July 20, 2005
    ...was a public use. We granted the city of Novi's application for leave to appeal after issuing our decision in Wayne Co. v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 (2004). 471 Mich. 889, 687 N.W.2d 297 II Under the Michigan Constitution, private property shall not be taken for public use wit......
  • In re Trade Partners, Inc., Investors Litigation, MDL Docket No. 1846.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 15, 2008
    ...Havlik, 418 Mich. 350, 361-63, 343 N.W.2d 181 (1984)). Accord Devillers, 473 Mich. at 587, 702 N.W.2d 539; County of Wayne v. Hathcock, 471 Mich. 445, 485 n. 98, 684 N.W.2d 765, 787 (2004). "Even when a decision meets the threshold criterion for prospective application because it clearly es......
  • Request a trial to view additional results
2 books & journal articles
  • The 'Euclidean' Strategy: Authorizing and Implementing the Legislative Districting of Permissible Land Uses
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...regulation under the Due Process and Equal Protection Clauses. The determination that 22. See, e.g. , County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 (2004). 23. Under California law, for instance, a city may only take land for economic development purposes in blighted areas. Cal......
  • Sources to Sinks: Expanding a National CO2 Pipeline Network
    • United States
    • Environmental Law Reporter Nbr. 50-1, January 2020
    • January 1, 2020
    ...545 U.S. 469, 35 ELR 20134 (2005). 78. Id . 79. Id . at 484. 80. Righetti, supra note 14, at 948 (citing County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004); Steven J. Eagle & Lauren A. Perotti, Coping With Kelo: A Potpourri of Legislation and Judicial Responses , 42 Real Prop. Prob. &......

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