Condemnation: Detroit (MI) Free Press, 6/24/05

Although there is no denying that the Supreme Court ruling is a disaster for private property rights, there is a way to fix it

The U.S. Supreme Court appeared Thursday to declare open season on private property with a decision affirming the power of governments to condemn land to make way for projects that promise economic development. But before developers and planners across Michigan start huddling over the ideal location for the next strip mall, they should note that Justice John Paul Stevens, writing for the 5-4 majority, left an out for places such as Michigan, where the state Supreme Court last year considerably tightened up government condemnation powers.

"We emphasize," Stevens said, "that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose public use requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law."

In a footnote, Stevens cited specifically the Wayne County case settled by the state Supreme Court last year in its landmark reversal of the 25-year-old Poletown standard for taking land. That 7-0 decision runs quite contrary to Thursday's Supreme Court ruling. The Michigan justices said the 1963 state Constitution severely limits the ability of governments to condemn private land for public use, then effectively transfer the land to another private owner for a project that promises jobs or increased tax base.

The original ruling arose from the City of Detroit's razing of a neighborhood known as Poletown to make way for a General Motors Corp. plant on the Detroit-Hamtramck border. The subsequent ruling stopped Wayne County from condemning land for its Pinnacle Aeropark project near Metro Airport.

While the state Supreme Court ruling has made it harder for Michigan communities to clear the way for what is often desirable development, it also stopped governments from acting, in effect, as real estate agents for developers who promised more than they could deliver.

The revised Michigan standard for exercising the government condemnation power known as eminent domain remains the more responsible one. The powers spelled out by the U.S. Supreme Court are too easily abused, as some Michigan governments demonstrated during the years that Poletown was the state standard.

Detroit Free Press: www.freep.com