Lawrence P. Schneider (P27325) | Knaggs, Harter, Brake & Schneider, P.C. | 7521 Westshire Drive Suite 100 | Lansing Michigan 48917 | 517-622-0590

On October 4,2002, the Court of Appeals released a published decision in this case. This is a case which is expected to have
a profound impact on the law of eminent domain in Michigan. This decision will make acquisitions of property by eminent domain far more cumbersome for municipalities. It will encourage lengthy and time-consuming challenges by property owners when their property is condemned in order to delay
projects and thereby leverage additional compensation from the municipality. The decision will require courts to conduct lengthy evidentiary hearings in condemnation cases to make a factual determination about who will benefit more by a public project – the public at large or private interests. The decision of the Court of Appeals is one that will not be limited to the unique facts which exist in this case. The Court of Appeals made broad pronouncements of law that will apply to every
case where a municipality exercises its power of eminent domain. The Court of Appeals relied primarily upon this Court’s 1981 decision in Poletown Neighborhood Council v City of Detroit. The Poletown Court upheld the City of Detroit’s exercise of its eminent domain power to acquire a large tract ofland to convey to General Motors for an assembly plant site. The City successfully argued that the acquisition served economic revitalization interests recognized by the Michigan Legislature in the Economic Development Corporations Act, and therefore served a “public interest” or a “public
purpose.” In this case, unlike the Poletown case, the City of Novi sought to condemn private property to construct a street which it would own and maintain and which would be open for travel by the general pUblic.5 The Court of Appeals was apparently troubled by the fact that most of the members of the
general public who would travel this road would be persons coming to or from two businesses. Hence, it declared the acquisition unconstitutional. Put simply, the Court of Appeals has adopted a new test for analyzing the constitutionality of a taking of private property for a public project: if a private interest receives a benefit from a public project which exceeds the benefits received by the public at large, the taking is unconstitutional. The Court of Appeal’s conclusion is not supported by prior decisions of this Court, including Poletown. The test created by the Court of Appeals is unworkable and will potentially invalidate important public projects where, even though the municipality asserts a completely valid public
interest, a “private interest” stands to benefit by the project more, whether intentionally or by happenstance. It will transfer the role of determining what is and what is not a public use from legislative bodies to circuit court judges.

In this land condemnation case where the city of Novi is attempting to take private property to construct a road, the first issue is whether the requirement of a public use, under Const 1963, art 10, § 2, is met when the proposed road will be available for use by the public but will be primarily used by a private entity that has contributed funds to the project. We conclude that such a road does qualify as a public use. The second issue is whether, under MCL 213.56, a court can find the city has abused its discretion in determining there is a public necessity for the condemnation when the city has not considered alternatives to the taking. We conclude that a failure of the city to consider alternatives was not an abuse of its discretion. Because the Court of Appeals incorrectly decided that the proposed road was not a public use, we reverse that decision. We also find no fraud, error of law, or abuse of discretion in the city’s determination that there exists a public necessity to take defendants’ property for the proposed project. Accordingly, we remand this matter to the trial court for entry of summary disposition in favor of plaintiff.

For many years traffic congestion at the intersection of Grand River Avenue and Novi Road in the city of Novi was a concern to the city because it represented a growing traffic hazard. As early as 1984 a study recommended a “ring road” around the intersection to relieve traffic congestion and provide access to vacant land not fronting on Grand River Avenue or Novi Road. The study also recommended a road, referred to here as the “spur road,” from the northwest side of the ring road, that would access industrial establishments that were then accessed from Grand River Avenue. The study recommended the spur road because the employee traffic from the industries with access on Grand River Avenue was resulting in frequent accidents. The study noted that, but for “the need to resolve [this] critical traffic problem,” the northwest quadrant of the ring road project “may have been abandoned altogether.”
Wisne Corporation was one of the industrial entities that would be served by the spur road. The new spur road was to traverse property owned by defendants, even though Wisne Co owned property that could possibly be used for a new access road. Wisne at one point agreed to pay $200,000 toward the funding of the spur road, and the road was to be named A.E. Wisne Drive. In August 1998, the Novi City Council passed resolutions declaring the necessity for taking defendants’ property for the purpose of creating A.E. Wisne Drive. Plaintiff filed a condemnation complaint in September 1998 pursuant to the Uniform Condemnation Procedures Act, MCL 213.51 et seq.