- In a case with nationwide
implications to halt the abuse of eminent domain, the Michigan Supreme Court
last night reversed its infamous Poletown decision, which had allowed the
condemnation of private property for so-called "economic development."
In a unanimous decision in County of Wayne v.
, issued at 9:30 p.m. on Friday, July 30, the Court decisively
rejected the notion that "a private entity's pursuit of profit was a 'public
use' for constitutional takings purposes simply because one entity's profit
maximization contributed to the health of the general economy."
1981 Poletown decision, the Michigan Supreme Court allowed the City of Detroit
to bulldoze an entire neighborhood, complete with more than 1,000 residences,
600 businesses, and numerous churches, in order to give the property to General
Motors for an auto plant.
That case set the precedent, both in Michigan
and across the country, for widespread abuse of the power of eminent domain.
It sent the signal that courts would not interfere, no matter how
private the purpose of the taking.
But in Hathcock, the Court called
Poletown a "radical departure from fundamental constitutional principles."
"We overrule Poletown," the Court wrote, "in order to vindicate our
constitution, protect the people's property rights and preserve the legitimacy
of the judicial branch as the expositor, not creator, of fundamental law."
According to Dana Berliner, an attorney with the Institute for
, which filed a brief
in the Hathcock case, the case has profound nationwide implications.
"Poletown was the first major case allowing condemnation of areas in
the name of jobs and taxes. It is cited in every property textbook in the
country. The Court literally rewrote the book with this decision," said
The use of eminent domain for private development has
become increasingly common throughout the United States. According to Public
Power, Private Gain, authored by Berliner, there were 10,000 properties either
taken or threatened with eminent domain for private parties in the U.S. between
1998 and 2002.
And state supreme courts from Nevada to Connecticut have
relied on the Poletown decision when upholding the condemnation of land for
"The Court made an exception in Poletown because of the
supposedly enormous benefits of the General Motors plant," said Berliner.
"Instead, the exception swallowed the rule."
The application of Poletown
in Michigan produced disastrous results.
Michigan courts tended to
forbid small condemnations for private parties, but when the city and developer
claimed the project would have a significant economic impact, lower courts
upheld the takings.
"Poletown gave cities and developers an incentive to
make outrageous, wildly inflated predictions [regarding] the impact of the
project," explained Scott Bullock, senior attorney at the Institute for Justice.
"It was the worst possible incentive. The Poletown project itself also
didn't come close to living up to the promises. In all likelihood, it destroyed
more jobs than it created." The Michigan Supreme Court also decided
another important eminent domain case, although one that has received less
In Detroit Wayne County Stadium Authority
, the Stadium Authority told Frida Alibri it would condemn her
property if she didn't sell "voluntarily."
It promised, among other
things, that it would not be given to a private party. After the sale, it was
indeed transferred to a private corporation.
At that point, Alibri
sought to get her property back, because the Stadium Authority didn't have the
power to condemn for that purpose, and it had told her that the purpose was not
transfer to a private party.
The trial court agreed with Alibri; the
appellate court, however, agreed with the Stadium Authority.
Michigan Supreme Court returned the property to its rightful owner -- Mrs.
Alibri. "Most people end up selling under threat of eminent domain,
rather than spend years in court fighting it, so these two decisions truly
prevent the government from taking property for private parties," according to
"The government can't convince people to sell by
telling them their property will be used for a public use, then turn around and
transfer it to a private party."
"The Poletown decision gave cities
the green light to take property for private parties," said Chip Mellor,
president and general counsel of the Institute for Justice. "It was a
terrible mistake. Now, the Michigan Supreme Court has restored the rights of all
Michiganders to keep their homes and businesses, even if another, politically
connected private business wants them. This is a great day for property rights
The Institute for Justice and the Mackinac Center for
Public Policy filed a friend of the court brief in the Hathcock case --
co-authored by George Mason Law School professor Ilya Somin and Institute for
Justice Senior Attorney Dana Berlinner -- discussing the disastrous effects of
the Poletown decision in Michigan and the country, as well as the failure of the
Poletown project to live up to its promises.
The Institute for Justice
also filed a friend of the court brief in the Alibri case.
decision is available at: http://courts.michigan.gov/supremecourt/Clerk/Opinions-03-04-Term/124070.pdf
Front Row, Left to Right: Justice Robert P. Young, Chief
Justice Maura D. Corrigan, Justice Stephen J. Markman
Back Row, Left to
Right: Justice Marilyn Kelly, Justice Michael F. Cavanagh, Justice Clifford W.
Taylor, Justice Elizabeth A. Weaverhttp://courts.michigan.gov/supremecourt/graphics/MSCBench-web.jpg
Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice's Office:
Clerk's Office: 517-373-0120 http://www.courts.michigan.gov/supremecourt
Biography of Justice Robert P. Young, Jr.http://courts.michigan.gov/supremecourt/graphics/young.jpg
Justice Young, of Detroit, received a bachelor's degree and
graduated cum laude from Harvard College in 1974, and a Juris Doctorate from
Harvard Law School in 1977. He practiced law for 15 years with the law firm of
Dickinson, Wright, Moon, Van Dusen & Freeman, then in 1992 was named vice
president, corporate secretary and general counsel of AAA Michigan. He has
served as a member of the Michigan Civil Service Commission and the Central
Michigan University Board of Trustees. Justice Young was appointed to the
Michigan Court of Appeals, 1st District, in 1995 and elected to the court in
1996. He was appointed to the Michigan Supreme Court by Governor Engler,
effective January 3, 1999, to fill the seat vacated by Chief Justice Conrad L.
Mallett, Jr. In 2000, he was elected to complete the term, which expired January
1, 2003. He was reelected in 2002. Justice Young's term expires January 1,
=====Poletown seizures are ruled unlawful -
[Michigan] State Supreme Court restricts government rights to take land
July 31, 2004
By John Gallagher, [Detroit] Free Press Business
Detroit Free Press
To submit a Letter to the Editor: email@example.com
more than two decades of land-use law, the Michigan Supreme Court late Friday
overturned its own landmark 1981 Poletown decision and sharply restricted
governments such as Detroit and Wayne County from seizing private land to give
to other private users.
The unanimous decision is a decisive victory for
property owners who object to the government seizing their land, only to give it
to another private owner to build stadiums, theaters, factories, housing
subdivisions and other economic development projects the government deems
Detroit and other municipalities have used the Poletown
standard for years to justify land seizures as a way to 'revitalize'.
the decision, the court rejected Wayne County's attempt to seize private land
south of Metro Airport for its proposed Pinnacle Aeropark high-technology park.
The Pinnacle project, announced in 1999, is geared to making Wayne
County a hub of international high-tech development linked to the airport.
Backers of the Poletown standard warned that Friday's decision could be a
"significant blow" to revitalization efforts in blighted cities like Detroit.
John Mogk, a professor of land-use law at Wayne State University, said
Detroit needs to use its powers, known as eminent domain, to seize land to clear
large tracts for new economic development, including retail centers, office
parks and residential projects. John Mogk
"Any limitation on the power of eminent domain will reduce
the chances of the city accomplishing those kind of projects," Mogk said. "No
other city with which Detroit competes has such limitations placed upon its
ability to acquire tracts of land for future development."
original Poletown ruling, the court allowed the City of Detroit to seize private
homes and businesses on the east side so General Motors Corp. could build an
auto factory. The bitterly-contested seizures and the court's ruling
in favor of the city had national implications and led to similar rulings
Thousands of homes and dozens of churches and private
businesses were bulldozed in Detroit's former Poletown neighborhood to make way
for the GM plant.
Of 1,300 acres needed for Wayne County's Pinnacle
project, property owners representing about 2 percent of the land have refused
They have resisted, in part, because much of the project would
later be turned over to private developers and other entities.
Friday's decision, known as Wayne County v. Hathcock
after one of the landowners in the case, the court ruled that the sweeping
powers to seize private land granted in the 1981 Poletown case violated the
state's 1963 constitution.
"The county is without constitutional
authority to condemn the properties," the court's opinion read. All
seven justices voted to overturn Poletown
, although three dissented over
some technical aspects that do not affect the main ruling.
Robert Young, who wrote the lead opinion, called the 1981 case allowing
Detroit's Poletown neighborhood to be cleared for a GM plant a "radical
departure from fundamental constitutional principles."
Poletown," Young wrote, "in order to vindicate our constitution, protect the
people's property rights and preserve the legitimacy of the judicial branch as
the expositor, not creator, of fundamental law."
Alan Ackerman, one of
the attorneys who represented landowners in the case, said he was "elated at the
recognition that it is a government of limited powers. The Constitution did not
contemplate that the government would do everything for everybody."
a spokesman for Wayne County Executive Robert Ficano issued a statement saying
that "the Michigan Supreme Court's decision to change Michigan law and divest
municipalities from their ability to create jobs for their citizens is a
disappointment not only for Wayne County, but for all of the Michigan
communities struggling to address these difficult economic times."
court said its ruling covers any condemnation cases now being heard before lower
courts in which Poletown issues have been raised.
The former owners of
Poletown properties that were seized to clear land for the GM plant are not
affected by the decision.
The decision won't stop all uses of eminent
All sides agreed [that] governments can still take private land
for traditional uses such as slum clearance or for a private use deemed
essential to the public good, such as to build a regulated public utility.
And the government's ability to seize land for governmental purposes
such as building schools and roads was never in question.
decision [means] is that the cost of land just went up for municipalities trying
to accomplish economic development.
Now that governments can no longer
use the threat of seizure, private owners and speculators could
higher prices to get out of the way of projects that government leaders deem