Poletown Seizures are Ruled Unlawful

by John Gallagher

Reversing more than two decades of land-use law, the Michigan Supreme Court late Friday overturned its own landmark 1981 Poletown decision and sharply restricted governments such as Detroit and Wayne County from seizing private land to give to other private users.

The unanimous decision is a decisive victory for property owners who object to the government seizing their land, only to give it to another private owner to build stadiums, theaters, factories, housing subdivisions and other economic development projects the government deems worthwhile.

Detroit and other municipalities have used the Poletown standard for years to justify land seizures as a way to revitalize.

In the decision, the court rejected Wayne County's attempt to seize private land south of Metro Airport for its proposed Pinnacle Aeropark high-technology park. The Pinnacle project, announced in 1999, is geared to making Wayne County a hub of international high-tech development linked to the airport.

Backers of the Poletown standard warned that Friday's decision could be a "significant blow" to revitalization efforts in blighted cities like Detroit. John Mogk, a professor of land-use law at Wayne State University, said Detroit needs to use its powers, known as eminent domain, to seize land to clear large tracts for new economic development, including retail centers, office parks and residential projects.

"Any limitation on the power of eminent domain will reduce the chances of the city accomplishing those kind of projects," Mogk said. "No other city with which Detroit competes has such limitations placed upon its ability to acquire tracts of land for future development."

In the original Poletown ruling, the court allowed the City of Detroit to seize private homes and businesses on the east side so General Motors Corp. Could build an auto factory. The bitterly contested seizures and the court's ruling in favor of the city had national implications and led to similar rulings elsewhere.

Thousands of homes and dozens of churches and private businesses were bulldozed in Detroit's former Poletown neighborhood to make way for the GM plant.

Of 1,300 acres needed for Wayne County's Pinnacle project, property owners representing about 2 percent of the land have refused to sell. They have resisted, in part because much of the project would later be turned over to private developers and other entities.

In Friday's decision, known as Wayne County v. Hathcock after one of the landowners in the case, the court ruled that the sweeping powers to seize private land granted in the 1981 Poletown case violated the state's 1963 constitution.

"The county is without constitutional authority to condemn the properties," the court's opinion read. All seven justices voted to overturn Poletown, although three dissented over some technical aspects that do not affect the main ruling.

Justice Robert Young, who wrote the lead opinion, called the 1981 case allowing Detroit's Poletown neighborhood to be cleared for a GM plant a "radical departure from fundamental constitutional principles."

"We overrule Poletown," Young wrote, "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

Alan Ackerman, one of the attorneys who represented landowners in the case, said he was "elated at the recognition that it is a government of limited powers. The constitution did not contemplate that the government would do everything for everybody."

But a spokesman for Wayne County Executive Robert Ficano issued a statement saying that "the Michigan Supreme Court's decision to change Michigan law and divest municipalities from their ability to create jobs for their citizens is a disappointment not only for Wayne County, but for all of the Michigan communities struggling to address these difficult economic times."

The court said its ruling covers any condemnation cases now being heard before lower courts in which Poletown issues have been raised. The former owners of Poletown properties that were seized to clear land for the GM plant are not affected by the decision.

The decision won't stop all uses of eminent domain. All sides agreed governments can still take private land for traditional uses such as slum clearance or for a private use deemed essential to the public good, such as to build a regulated public utility. And the government's ability to seize land for governmental purposes such as building schools and roads was never in question.

What the decision does mean is that the cost of land just went up for municipalities trying to accomplish economic development. Now that governments can no longer use the threat of seizure, private owners and speculators could demand higher prices to get out of the way of projects that government leaders deem essential.

Copyright © 2004 Detroit Free Press Inc.


Fighting Eminent Domain's Expansion

Two businesses face eviction. Critics wonder whether it is tax-generating potential, not public benefit, that counts more.

By Anthony S. Twyman

Peggy Savery and James J. Clearkin III own businesses that are miles apart, but they share the same distrust of government and its power of eminent domain.

Lower Merion Township officials are considering razing Savery's office-equipment shop in Ardmore as part of a $140 million project that would result in new retail stores, more parking, and a renovated train station.

"It doesn't make sense," said Savery, who owns Suburban Office Equipment, a 78-year-old family business at Lancaster Avenue and Rittenhouse Place.

In Philadelphia, officials plan to raze Clearkin's business, which employs 15 workers, to make way for 50 new townhouses as part of Mayor Street's $275 million Neighborhood Transformation Initiative, which is aimed, in part, at strengthening the city's tax base by luring new residents.

"They're going to force a profitable, operating business out of the city for what?... We've been at this location for 54 years," said Clearkin, owner of James J. Clearkin Inc., a building contractor on Castor Avenue and Wingohocking Street in the city's Juniata Park section.

Philadelphia officials say that although they sympathize with Clearkin, eminent domain is an important tool that sometimes leads to properties such as Clearkin's being condemned for the good of the community at large.

"It is an integral part of not just the Neighborhood Transformation Initiative, but any municipality's effort to strengthen blighted neighborhoods," said Kevin R. Hanna, the city's secretary of housing and neighborhood preservation.

Eminent domain has been used for decades to clear land for hospitals, schools and highways. But lately, critics say, it is being used in questionable ways by local government officials seeking projects deemed to have more tax-generating potential.

New York, for example, recently forced out about 30 businesses in midtown Manhattan to make way for the New York Times' new headquarters. In Ventnor, government officials want to tear down 17 homes and businesses to make room for upscale condominiums.

And more than 100 residents and community groups in Camden's low-income Cramer Hill neighborhood filed a lawsuit Thursday against the state and city to block a 10-year, $1.2 billion redevelopment plan that would relocate as many as 1,200 families to make way for new homes, retail stores, a marina and a golf course.

"You just basically have the government choosing winners and losers," said Scott Bullock, senior attorney for the Institute for Justice, a Washington-based public-interest law firm that is waging a legal war in various states against what it calls eminent-domain abuse.

According to a recent study by the group, between January 1998 and December 2002, government officials condemned or threatened to condemn 10,282 properties nationwide for use by private parties, including 2,625 properties in Pennsylvania.

Gideon Kanner, a professor emeritus at Loyola Law School in Los Angeles and editor of a monthly periodical that reviews eminent-domain cases, said it has become a "racket" that allows private developers to obtain property, with the help of government, at reduced prices.

But others say eminent domain is imperative if municipalities are to have the ability to redevelop blighted neighborhoods filled with vacant land and abandoned houses.

"It really is a tough issue," said Wendell E. Pritchett, an assistant professor at the University of Pennsylvania Law School. "If we're really going to revitalize the city... you do need some kind of mechanism for redevelopment."

Pritchett said eminent domain as a government right here can be traced to Britain, where kings for centuries had been able to seize private property.

"The reality is that government has immense control over private property," Pritchett said. "It's just not true that a man's home is his castle."

Under the Fifth Amendment of the U.S. Constitution, government can seize private property for public benefit as long as it pays the owner "just compensation," or, as it's been interpreted today, fair market value.

Up until the 1950s, eminent domain was primarily used for public projects such as schools, roads, military bases and prisons. But a 1954 U.S. Supreme Court decision broadened its scope, giving government the right to seize property for "public purpose," as opposed to just "public use."

Officials now had greater latitude to condemn property deemed beneficial for the public. It paved the way, for instance, for the urban slum-clearing projects of the 1960s and 1970s.

"So much good has come from this," said Herbert Wetzel, the executive director of the Philadelphia Redevelopment Authority.

Perhaps nowhere in the region is eminent domain being used more than in Philadelphia, where the mayor's Neighborhood Transformation Initiative has designated 5,500 properties for condemnation. Of that number, 249 properties are occupied, and residents will be required to relocate.

Some Philadelphia residents have benefited.

Dwayne Adams said he was not happy when the city notified him and his 90-year-old grandmother that they had to move from their homes in the 2300 block of North 13th Street in North Philadelphia. Although he misses his old house, which was redeveloped into new homes, the city paid to relocate him and his grandmother to the 1600 block of North Seventh Street in North Philadelphia, which he likes.

"It did work out," said Adams, 44. "I feel safer."

But critics of the initiative say that, for every person like Adams, there are others like Clearkin who are being forced to move, even though their property is not blighted.

The city designated Clearkin's property as blighted, largely because it is surrounded by run-down properties that the city wants to see redeveloped.

The city plans to sell Clearkin's property - and others around it - for a nominal fee to Frankford Community Development Corp., a nonprofit group that plans to use government subsidy to build townhouses that it hopes to sell for $130,000 and more.

Steve Culbertson, executive director of the group, said that he sympathizes with Clearkin, but that there are no other large parcels of land in the immediate area that are not contaminated or already being developed.

"Except for Clearkin, it is a blighted block," Culbertson said.

While Clearkin has resigned himself to his fate, Savery, in Ardmore, has not.

She and other business owners targeted by Lower Merion's redevelopment efforts have hired Glenn A. Zeitz, the attorney who, in 1998, successfully kept an elderly Atlantic City woman from losing her house when government officials sought to turn it over to casino mogul Donald Trump for a parking lot.

"All the property owners are very upset because we are not a blighted area," Savery said.

She is particularly incensed because the block has been designated a historic district, and signs were put up earlier this year proclaiming its historic significance.

Despite their objections, Lower Merion officials voted Thursday to label the block as a redevelopment area, the first step toward condemnation.

"There's so many gaps in activity and storefronts underutilized," said Brenda Viola, the township's spokeswoman. "What we have is a prime location, with great potential."

Contact staff writer Anthony S. Twyman at atwyman@phillynews.com.

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