MICHIGAN CONDEMNATION
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Gary David Strauss
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Royal Oak, MI  48067-3845
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Thomkins

MCL 213.55(2)'s Preclusion Of Damages Due To General Project Effects Held To Be Unconstitutional

MDOT v Tomkins , 270 Mich App 153; 715 NW2d 363 (2006)

In Tomkins , the Michigan Court of Appeals held that a portion of one of the 1997 amendments to the Uniform Condemnation Procedures Act (MCL 213.70(2)) was unconstitutional. The property owners alleged that they were entitled to an additional $48,200 in damages attributable to “the proximity of the subject property to the highway and the additional dust, dirt, noise, vibration, and smell” resulting from the road project. MDOT argued that these “general project effects” could not give rise to legally compensable damages, pursuant to MCL 213.70(2), which provides that:

The general effects of a project for which property is taken, whether actual or anticipated, that in varying degrees are experienced by the general public or by property owners from whom no property is taken, shall not be considered in determining just compensation.

A special effect of the project on the owner's property that, standing alone, would constitute a taking of private property under section 2 of article X of the state constitution of 1963 shall be considered in determining just compensation. To the extent that the detrimental effects of a project are considered to determine just compensation, they may be offset by consideration of the beneficial effects of the project.

The trial court agreed with MDOT. The Court of Appeals reversed the trial court. The Court distinguished Spiek v Dep't of Transportation , 456 Mich 331; 572 N.W.2d 201 (1998), an inverse condemnation case, which provided the basis for MCL 213.70(2). In an inverse condemnation case , a property owner claims that governmental actions have resulted in a taking of property. In Spiek , the Court of Appeals held that “general project effects” could not sustain an inverse condemnation action. When the legislature enacted MCL 213.70(2), it extended the Spiek holding to “straight” condemnation cases.

In Thomkins , the Court held that MCL 213.55(2)'s “limitation on general damages, as applied to partial takings cases, impermissibly conflicts with the established constitutional meaning of “just compensation,” which requires that any and all factors relevant to market value be taken into consideration when determining the difference in the remaining property's value before and after the taking.”

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