Daily Development for Monday, October14, 2002
By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
CONSTITUTIONAL LAW; DUE PROCESS; PUBLIC PURPOSE: Taking of property for
public street is not authorized when streets serves only two private
landowners, even when purpose of street is to alleviate congestion resulting
from employees of those landowners accessing public street system.
City of
Wisne and General Filters, two industrial
companies, owned property near a public intersection. This intersection presented a major traffic
problem to the City because of the glut of cars driven by employees coming from
these two companies' businesses. The
City developed a traffic plan to address the congestion. The plan involved building two roads - a
circle road surrounding the intersection and a direct road from the circle road
to a common exit from the two companies' properties. The development of this second road - the
direct road, required condemnation of a portion of improved land owned by
Trust. Trust challenged the exercise of
eminent domain to take its land, alleging that the development of the private
road did not serve the public interest and necessity.
The trial court found the proposed taking unconstitutional, and the Michigan
Court of Appeals here affirmed, essaying a lengthy discussion concerning the
subtleties of Michigan condemnation law, but finally resolving the issue on
broader grounds - concluding that to determine whether a proposed exercise of
eminent domain meets the "public purpose" requirement, a court must
determine whether the benefits conferred on private parties exceed those
realized by the public. If the private
interest predominates, then the proposed public action does not, in the view of
the court, have a "public purpose."
The court quotes with approval the dissenting opinion of a judge in the
landmark Michigan Supreme Court decision of Poletown
Neighborhood Council v. Detroit, 304 N.W. 2d 455 (Mich. 1981), where the
majority upheld significant eminent domain actions in furtherance of public
assistance to the expansion of an
industrial plant deemed critical to the economic health of the
community. Justice Ryan, the dissenting
judge argued that there is a distinction between the degree of public
justification required to support an expenditure of public funds, which he
called "public purpose" and the justification required to support the
taking of private property, which he called "public use." Justice Ryan would have found that the
taking in Poletown did not meet the necessarily
higher standard required for the "public use" requirement.
Despite approving Justice Ryan's analysis, the court of appeals acknowledged
that it was bound by the majority opinion in Poletown,
which did not agree with the distinction, and thus chose to refer to the
question before it as one of "public purpose/public use."
But the court also drew another conceptual line between the concepts of
"public necessity" and "public purpose/public use." It noted that the lower court and the appeal
briefs seemed to have great difficulty with the "fog" surrounding
these terms, and announced that it would devote some time to clarifying the
distinction. Although the court really
never defined either term in any way, it did conclude that the
The City argued that by definition a public road was a "public
use" and that no further judicial scrutiny was warranted. The court disagreed, and insisted that even
with public rights of way, it was relevant to compare
the quantum of benefit. On that scale,
the proposed public access road to the private industrial properties failed.
"We see almost no applicability [of the public benefit analysis] to
[the access road.] The purposes of this [access road] is,
primarily, to benefit the [private industrial] property. It is, in our view of the record, not an
essential improvement that requires a particular configuration. The fact that, without eminent domain, it
would not exist at all does not change its essential character."
At another point, the court had noted that an access way to the proposed
ring road might have been constructed entirely across the land of the
industrial employers. It apparently
would have been of the view that the expenditure of public funds might have
been acceptable in the construction of such a road, but the exercise of eminent
domain to facilitate such construction was unacceptable.
Comment 1: The editor takes a back seat to no one in decrying abuses of the
condemnation power, but admits to being completely perplexed by the court's
analysis here. First, the court does
absolutely not one thing to clarify the meaning of and differences between the
terms "public necessity" and "public purpose" in the
statute. It is as if the court reads
entirely out of the statute the presumption of validity of the City's
determination that the road served a public benefit. If anything, one would assume that the main
gripe of the court was that the acquisition of the property in question was not
"necessary," as other property might have filled the public purpose
without the use of condemnation. But
because of the language of the Uniform Act, and the court's choice to see a
distinction drawn by the Act, the court necessarily had to focus on the
question of "public purpose/public use."
Comment 2: To the editor, it makes not sense to conclude that the question of whether a proposed
condemnation action adequately serves the public interest is a balancing
test. There should be no balancing. If a proposed acquisition serves a
significant public benefit, then what difference should it make that a private
interest also receives a significant benefit?
Although the editor concedes that it might matter that an alternate
route would also have met the public needs, this is not a question of balancing
the benefits of the immediate proposed taking, but of analyzing whether the proposed
taking is necessary to meet the public need.
The question of necessity, according to the court, is subject to a
strong presumption in favor of the validity of the public determination. The
editor concurs in that decision, but fails to see why that doesn't resolve the
question in this case.
Comment 3: Even accepting the notion that the City had the burden to show
public necessity - why isn't the remediation of congestion on public streets an
adequate necessity? Why should it matter
that the congestion results from the traffic flowing from one employer instead
of ten. Traffic is traffic - generated
by the good citizens of the City of
Readers are urged to respond, comment, and
argue with the daily development or the editor's comments about it.
Items in the Daily Development section
generally are extracted from the Quarterly Report on Developments in Real
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