9/02/2004

Court Decisions May Stall Development


Letter to the Editor

Avern Cohn U.S. District Judge, Detroit


Your concern that two recent decisions of the Michigan Supreme Court "clamps one more major restriction on the rights that the public once had to defend the public trust from assault" ("Lawsuit Limits: Two rulings signal trouble for environment law," Aug. 17) rings hollow in light of your wholehearted endorsement of the court's decision as reining in government condemnation powers and putting a stop to the Pinnacle Aeropark near Metro Airport ("Property Rights: State Supreme Court reins in power of condemnation for private development," Aug. 8).

The environmental decisions and the Pinnacle Aeropark decision reflect an ideological commitment to private property rights over community rights. This view of the Pinnacle Aeropark decision is reinforced by the manner in which the Supreme Court arrived at the conclusion that a public benefit is not a public purpose under the Michigan Constitution's eminent domain provision, forgoing any analysis under the Fifth Amendment to the U.S. Constitution's eminent domain jurisprudence.

The state Supreme Court also failed to take note of the March 2004 decision of the Connecticut Supreme Court holding constitutional the use of eminent domain to acquire land by the City of New London for a development adjacent to a major drug research facility, and failed to mention the October 2003 decision of the Ohio Court of Appeals for Lucas County upholding the right of the City of Toledo to acquire land for the development of a new Jeep plant by Daimler-Chrysler.

Your business page description of the Toledo case ("DCX expansion forces small repair shop to give up land," Aug. 17) grossly distorted what was involved and was in error when it stated that the Poletown decision was "heavily quoted" in it. The briefs to the Ohio Supreme Court that denied review do not cite the Poletown decision.

Both the Connecticut and Ohio decisions are before the U.S. Supreme Court on applications for review. It is unlikely that the high court, in light of its previous decisions on the power of eminent domain, will accept review. Lastly, it is fair to say that in the future, Michigan will be at a competitive disadvantage in attracting large-scale developments benefiting the public where the use of eminent domain is a factor.




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