Michigan's Website For Condemning Agencies

Gary David Strauss
Strauss & Strauss, PLLC
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  Recent Developments

City of Novi v Adell - Public Necessity

         In City of Novi v Adell ___ Mich ___ (July 20, 2005), the City of Novi sought to acquire property for improvements to the intersection of Grand River and Novi Road. As part of the project, an access road was to be built that primarily serviced one business Wisne Corporation. The Court noted that “the new spur road was to traverse property owned by defendants, even though Wisne Corporation owned property that could possibly be used for a new access road. Wisne at one point agreed to pay $200,000 toward the funding of the spur road, and the road was to be named A.E. Wisne Drive.”

The property owners successfully challenged the necessity of taking property for the “spur road” (while not challenging the necessity of other property acquired for the project). The Court of Appeals affirmed. The Michigan Supreme Court agreed to hear the case in light of the recent decision in Wayne Co v Hathcock , 471 Mich 445 (2004).

In reversing the Court of Appeals, the Michigan Supreme Court considered (1) whether the constitutional requirement of a public use is met when the proposed road will be available for use by the public but will be primarily used by a private entity that has contributed funds to the project; and (2) whether a trial court can find the city has abused its discretion in determining there is a public necessity for the condemnation when the city has not considered alternatives to the taking.

In reaching its decision, the Court found the taking constitutional because the City established the road, paid for it with public money and retained control and responsibility for the road. The “proportional use” of the road by public or private entities was found to be irrelevant. Significantly, the Court did not engage in the Poletown query which was overruled by Hathcock - whether the public use predominated over the private benefit.

With regard to whether the City had an obligation to consider other alternatives, the Court found that “the city is not obligated to show that its plan is the best or only alternative, only that it is a reasonable one.”

While it is difficult to predict the ramifications of any opinion, especially at the trial court level, it appears that Adell provides strong reinforcement for the condemning agency's broad discretion in determining the property "reasonably necessary" for a project.

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