State constitutional amendment on eminent domain to be on 2006 ballot: Craine's Detroit (MI) Business, 12/14/05

would strengthen private-property rights

By Amy Lane

A constitutional amendment designed to strengthen private-property owners’ rights will go before Michigan voters in 2006, in the wake of legislative passage on Tuesday.

Senate Joint Resolution E, if approved by voters, would insert new language into Michigan’s Constitution that would make it more difficult for governments to condemn blighted property.

The measure increases governments’ burden of proof to show why the condemnation is needed, and it creates a higher test of public use that governments must meet in using eminent domain to remove blight.

Governments condemning private property would have to demonstrate by “clear and convincing evidence” that the taking is for a public use. That’s a higher standard than the “preponderance” of evidence required for a general condemnation of private property.

Such groups as the Michigan Municipal League have said the language would stifle redevelopment efforts and make it “prohibitive” for municipalities to use eminent domain in attempts to clear blighted property.

But supporters say it’s appropriate that governments must meet a high standard when taking private property to eradicate blight. Patrick Wright, senior legal analyst at the Mackinac Center for Public Policy, said in a news release that the constitutional amendment “would significantly strengthen private-property rights in Michigan.”

Among other things, the amendment will require “that when government officials base a taking on ‘blight,’ they provide clear and convincing proof of blight on a property-by-property basis, thereby preventing them from casually condemning entire neighborhoods,” he said.

The amendment would also require any entity taking residential property to pay the home owner at least 125 percent of the property’s market value.

Spurring the legislative action is the June U.S. Supreme Court decision in an eminent-domain case from New London, Conn.

In that case, Kelo v. New London, the U.S. Supreme Court said economic development was a legitimate government reason to invoke eminent domain, but states can set their own restrictions on condemnation that give greater protection to property owners.

The court cited Michigan’s 2004 Wayne County v. Hathcock ruling as an example of how states can set stricter standards on takings. Property-rights supporters say further restrictions are needed.

Craine's Detroit Business: www.crainsdetroit.com