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Gary David Strauss
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Carrier Creek

Owners' Failure to Notify Condemning Agency of Alledged Increased Value Arising from the Possibility That the Property Would Be Rezoned Results in Owners Being Precluded from Making Claim

Carrier Creek Drain Drainage District v Land One, LLC , 269 Mich App 324, 712 NW2d 168 (2006)


In Carrier Creek , the Court of Appeals affirmed the trial court's ruling prohibiting the property owners from presenting evidence regarding potential rezoning of their property. The Court's decision involved a legal interpretation of one of the 1997 amendments to the Uniform Condemnation Procedures Act. MCL 213.55(3) requires that

If an owner believes that the good faith written offer made under subsection (1) did not include or fully include 1 or more items of compensable property or damage for which the owner intends to claim a right to just compensation, the owner shall, for each item, file a written claim with the agency. The owner's written claim shall provide sufficient information and detail to enable the agency to evaluate the validity of the claim and to determine its value. The owner shall file all such claims within 90 days after the good faith written offer is made pursuant to section 5(1) or 60 days after the complaint is filed, whichever is later.

If an owner does not timely include “items of compensable property or damage” it believes the condemning agency omitted from its good faith offer, those claims are waived.

The owners claimed that the property would be worth more because a willing purchaser would recognize the possibility the property would be rezoned from residential to professional office use was within the scope of the statute. The Drainage District argued that because the owners did not include the “claim” of rezoning in its written claim under MCL 213.55(3), the claim was barred. The trial court agreed.

The Court of Appeals affirmed, finding that a claim that the rezoning of property would increase the value of the land was within the scope of MCL 213.55(3). In reaching its decision, the Court followed the same strict construction of the statute applied in Novi v Woodson, 251 Mich App 614; 651 NW2d 448 (2002). Although the statute permits the owner to request an extension of time in order to file its claims, the Court found that the request for the extension must be made with the time allotted to make the initial claim (60 days after complaint filed or 90 days after good faith offer)

In December 15, 2005, an application for leave to appeal was filed with the Michigan Supreme Court. The matter is pending.

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