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www.mybaycity.com September 24, 2006
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Election Issue Analysis: Proposal 2006:04 - Eminent Domain

Present Legislative Processes Adequate: Recommendation, Vote "No"

September 24, 2006       Leave a Comment
By: Dave Rogers

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(EDITOR'S NOTE: In cooperation with the Citizens Research Council of Michigan (CRC), MyBayCity.com is presenting analysis of the five referendum issues on the Nov. 7 election ballot. A different issue will be highlighted periodically until election day.)

The Citizens Research Council has released its analysis of the proposed constitutional amendment regarding the use of eminent domain. At the November 7, 2006, general election Michigan voters will be presented with a proposal to amend Article X, Section 2 of the 1963 Michigan Constitution.

In part, this proposed amendment is about ending the uses of eminent domain in which private property is condemned for transfer to a private entity for the purposes of economic development or the enhancement of tax revenues.

It would adopt by reference the three-part standard of the County of Wayne v. Hathcock ruling defining when eminent domain is permissible to transfer property to a private entity.


These standards are:

  • "public necessity of the extreme sort" requires collective action;

  • the property remains subject to public oversight after the transfer to the private entity; or

  • the property is selected because of "facts of independent public significance," rather than the interests of the private entity receiving the property.

    The proposed amendment goes further than simply placing the Hathcock standards in the Constitution so they may not be undone by future court rulings.

    The amendment would require governments to provide compensation at least equal to 125 percent of a residential property's fair market value.

    The proposed amendment would shift the burden of proof that the taking is for a public use from the owner objecting to the taking to the government proposing the taking.

    Finally, Proposal 2006-04 protects against future legislative actions or judicial decisions that would reduce the rights, grants, or benefits afforded to property owners.

    Courts have accepted the necessity of eminent domain. Historically, the courts have reasoned that all private property rights were subordinate to the paramount power of eminent domain. Courts also have typically accepted that the determination of public use is a legislative decision that courts should debate only if the party opposing the condemnation demonstrates ?fraud, error of law, or abuse of discretion.?

    A significant element of value in a written constitution is that it is a document with which citizens should be acquainted, which they are ready and willing to read, and which they can understand. To achieve this end, it is readily accepted that a constitution should be relatively compact and economical in its general arrangement and draftsmanship; that details should be avoided; and that matters appropriate for legislation should not be incorporated into the organic document.

    The general trend since its ratification has been to make the State Constitution, through the amendment process, much more detailed and elaborate and in many cases a prolix document which incorporated matters that could well have been left for the ordinary law-making processes.

    The second paragraph of this proposed amendment works quite the opposite of this trend. Rather than including details that are better suited to legislative implementation, this proposal does not spell out what it proposes should be the organic law of the State. Instead, it references the understanding that exists due to a court case. It is an understanding that is known to jurists and policymakers in Lansing, but is not readily known or easily explainable to the people asked to adopt this amendment. Such an approach to amending the State Constitution appears to be unprecedented in Michigan history.

    Never before has the Michigan Constitution been amended simply by referring to an existing law or an understanding of law as interpreted by a Supreme Court decision. The net effect of this approach may be much the same as those amendments that provide too much detail: it is very difficult for citizens to be acquainted with the document, to read through, or to understand what they are reading.

    The provision in question reads as follows, "Private property otherwise may be taken for reasons of public use as that term is understood on the effective date of the amendment to this constitution that added this paragraph."

    This provision could complicate the land assembly process by leading more property owners to hold out for court settlements that would promise at least 125 percent of each property?s fair market value. If this occurs, the condemning governmental units will face increased costs for legal fees as well as the higher cost of compensating the owners for their properties. The cost of paying legal fees and compensation to property owners will come out of the coffers of the condemning governmental units, who get their funding from taxes levied at the state or local levels.

    The implications of blight eradication on a parcel-by-parcel basis, as is proposed in the amendment, are very different. It has been legislatively recognized that "blight is observable at different stages of severity, and that moderate blight unremedied creates a strong probability that severe blight will follow." Michigan law authorizes governments "to engage in areawide blight eradication so that moderate blight can be stopped from becoming severe blight." Requiring governments to use condemnation on only the most severely blighted properties, for which they can prove by clear and convincing evidence that blight exists, would weaken government's ability to address moderate blight before it becomes severe.

    Barring adoption of a new constitution or amendment of this provision, a Michigan resident 10, 20, or 50 years from now will have to take the time to research the date of adoption of this amendment and then research case law to learn how the court decision in the County of Wayne v. Hathcock case provided the modern day understanding of "public use."###

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    Dave Rogers

    Dave Rogers is a former editorial writer for the Bay City Times and a widely read,
    respected journalist/writer in and around Bay City.
    (Contact Dave Via Email at carraroe@aol.com)

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