Amicus Brief

Wayne County v Hathcock et al

Case Year: 2003
Case Forum: Michigan Supreme Court
Keywords: eminent domain, public purpose test, Poletown, taking, airport
Amicus Counsel:

Thomas C. Phillips | Clifford T. Flood | Jaclyn Shoshana Levine |
Miller Canfield Paddock and Stone, PLC | 150 West Jefferson Suite 2500 | Detroit, Michigan 48226


An entity fitting the definition of a public corporation or state agency as defined in MCL 213.22 has the authority to take private property if the property being taken is (1) for a public improvement, or (2) for the purposes of the public corporation or state agency’s incorporation, or (3) for public purposes within the scope of the public corporation or state agency’s powers. No matter which one of these three circumstances forms the basis for the public corporation or state agency’s taking, the property must be taken for the use or benefit of the public, and must be necessary for that use or benefit. When taking private property under one or more of these three
circumstances for the use or benefit of the public, the public corporation or state agency has the power to institute and prosecute proceedings for that purpose. Despite the clear meaning ofMCL 213.23, Defendants argue that the authority granted in MCL 213.23 to take private property must be exercised in conjunction with another statutory or constitutional
provision conferring the power of eminent domain. Yet, the text of MCL 213.23 simply does not support such an interpretation. Had the Legislature wanted to require public corporations and state agencies to have this adjunct authority to take private property, it could have stated so in the text of MCL 213.23 when it enacted the statute originally, or when it amended the statute later. However, because the Legislature chose not to do so, MCL 213.23 cannot be interpreted to require adjunct authority. Defendants contend that the takings are unconstitutional because the Pinnacle Project is not for a public
purpose, and even if it were for a public purpose, their property is not necessary to the Pinnacle Project. Defendants have attacked the public purpose and necessity of these takings on far-ranging grounds, most of which attempt to portray the Pinnacle Project in inherently contradictory terms. Public purpose is a flexible concept and Poletown’s conclusion that
economic development can serve as a valid public purpose for a taking finds ample support in other opinions. There can be no doubt that requiring clear and significant evidence of public purpose as the lega standard for constitutional takings, as discussed and applied in Poletown, works generally, and worked
well in this case. The fact that this standard has a longstanding basis in Michigan precedent only reveals its resilience, flexibility, and therefore its effectiveness in sorting the constitutional takings from the unconstitutional takings. The evidence Wayne County presented in the trial court overwhelmingly
demonstrated that the public would reap a clear and significant benefit from the Pinnacle Project in the form of economic stability and development, and therefore that these takings are for a public purpose. The constitution requires no more than this.


We conclude that, although these condemnations are authorized by MCL 213.23, they do not pass constitutional muster under art 10, § 2 of our 1963 constitution. Section 2 permits the exercise of the power of eminent domain only for a “public use.” In this case, Wayne County intends to transfer the condemned properties to private parties in a manner wholly inconsistent with the common understanding of “public use” at the time our Constitution was ratified. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the Wayne Circuit Court for entry of summary disposition in defendants’ favor.

MSC requested LDF amicus brief? No

In the 1990s, Plaintiff Wayne County made plans to expand Detroit Metropolitan Wayne County Airport (“Detroit Metro”). In order to mitigate the effects of expanding Detroit Metro, including increased noise, the Federal Aviation Administration provided Wayne County with funds to purchase property adjacent to this new area of development “conditioned
on the requirement that plaintiff make the property economically viable.” Wayne County determined that the property it acquired could be used to develop an “aeropark” with facilities and services for business, technology, industry, and conferences. This aeropark, known as the Pinnacle
Project, was expected to have a significant economic effect in Wayne County, providing thousands of jobs and millions of dollars in tax revenue. Once established, Pinnacle Park was also projected to draw more enterprises to Wayne County, thereby further enhancing the economic environment. Wayne County approached the individual property owners of the largely undeveloped 1,300 acres of land situated in Huron Charter Township and the City of Romulus that was slated to become Pinnacle Park. The vast majority of the property owners sold their land to Wayne County voluntarily. Defendants, however, refused to sell their property, which represented approximately two percent of the total acreage of Pinnacle Park. Defendants’ individual parcels of property could not, as a practical matter, be excluded from Pinnacle Park. Accordingly, the Wayne County Commission adopted a Resolution of Necessity and Declaration of Taking for Defendants’ property. Wayne
County emphasized that it was “necessary to take the private property” that was the subject of the resolution to develop the Pinnacle Project.

Case Number: 2003-01
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