8/10/2004

Wayne County v. Hathcock, a Landmark Decision

Commentary by Alan Krigman

In what may prove to be a landmark decision, the Michigan Supreme Court has overturned a 1981 decision, and ruled that a government's power of eminent domain to take private property must be in the interest of bona fide "public use" rather than some ill-defined notion of "public purpose." The ruling was based on the explicit requirement of "public use" in Article 10, Section 2 of the Michigan constitution ("Private property shall not be taken for public use without just compensation"). The same wording is found in the 5th Amendment to the Constitution of the United States ("nor shall private property be taken for public use, without just compensation"). For residents of Philadelphia concerned about the overzealousness of the city's Historical Commission, it may also be noted that the phraseology is identical in Article 1, Section 10 of the Pennsylvania Constitution ("nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured").


Among other things, this ruling has strong implications for the condemnation of viable buildings to clear tracts of land for subsequent sale to developers. It also comprises a further strengthening of objections to the historic designation of individual structures and districts when such an action imposes restrictions on or otherwise encumbers owners.

For the complete text of the Court's opinion, Wayne v. Hathcock (PDF).