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Gary David Strauss
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  Recent Developments

County of Wayne v. Hathcock - Poletown overruled.

On July 30 th, in, County of Wayne v. Hathcock, the Michigan Supreme Court unanimously overruled Poletown Neighborhood Council v Detroit, 410 Mich 616 (1981). In Hathcock, Wayne County sought to condemn private property for the Pinnacle Project, a proposed business and technology park encompassing a1,300 acre area adjacent to Metropolitan Airport.

In support of its contention that the Pinnacle Project was intended for a public use, the Count asserted that the project would “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 County also contended that the project would “enhance the image of the County in the development community . . . leading to accelerated economic growth and revenue.”

Article 10, § 2 of the Michigan's Constitution provides that "[p]rivate property

shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law." In deciding whether Wayne County’s proposed condemnation was legally permissible, the Court considered three sub-issues: (1) whether Wayne County had statutory authority to acquire the properties; (2) whether the proposed acquisitions were for a "public purpose," pursuant to Poletown; and (3) whether Poletown’s "public purpose" test was constitutional. The Court also considered whether its decision would apply retroactively or prospectively.

The Court answered the first two issues affirmatively, finding that Wayne County did have the statutory authority to condemn and that the proposed condemnation was consistent with the Poletown decision. However, the Court ultimately overruled Poletown, by rejecting the notion that the concept of “pubic use" encompassed the alleviation of unemployment and revitalization of the economic base of a community.

The Court held that, where a citizen’s property ultimately would be transferred to another private entity, the one of the following three characteristics must be present in order to satisfy the constitutional requirement of a public use.

1) Instances where private corporations are generating a public benefits whose very existence depends on the use of land that only can be assembled with the coordination of central government. Examples of these types of uses includes “highways, railroads, canals, and other instrumentalities of commerce.”

2) Situations where “the private entity remains accountable to the public in its use of that property.” As an example, the Court cited Lakehead PipeLine Co v Dehn, 340 Mich 25 (1954), where a petroleum pipeline company "pledged itself to transport in intrastate commerce," and was subject to direction of the Michigan Public Service Commission who had the power to enforce those obligations.

3) Situations where “selection of the land to be condemned is itself based on public concern . . . . on the basis of . . . facts of independent public significance." In other words, “the underlying purposes for resorting to condemnation, rather than the subsequent use of condemned land, must satisfy the Constitution's public use requirement.” The Court cited In re Slum Clearance, 331 Mich 714 (1951), where the underlying purpose was to “remove unfit housing and thereby advance public health and safety.” The fact that the property subsequently was transferred to private parties was incidental to the public purpose and inconsequential with regard to the “public use” requirement.

The proposed condemnation of private property for the Pinnacle Project did not fit into any one of these categories. With regard to the issue of retroactivity, the Court held that its decision would be given limited retroactivity and only would apply to “all pending cases in which a challenge to Poletown has been raised and preserved.”

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