Background:
Wayne County wanted to acquire property adjacent to the Detroit Metropolitan Wayne County Airport for development as an “aeropark” with facilities and services for business, technology, industry and conferences. Known as the Pinnacle Project, the aeropark was expected to have a significant economic effect in Wayne County, providing thousands of jobs and millions of dollars in tax revenue. The vast majority of the property owners sold their land to Wayne County voluntarily. Several landowners whose property represented approximately 2 percent of the total acreage, however, refused to sell their property. As a practical matter, that land could not be excluded from the Pinnacle Project. Wayne County intended to transfer the condemned properties to private parties for development of the project.

Wayne County then began condemnation procedures by adopting a resolution of necessity and a declaration of taking of the property. Wayne County justified its use of condemnation to transfer property to a private entity to achieve the public purposes of economic development i.e., job creation, property tax base expansion, and tax base diversification. The property owners challenged the use of eminent domain as exceeding constitutional authority.

Why did the LDF get involved?
The Michigan Supreme Court had previously upheld the use of eminent domain by a municipality for transfer to a third party in its decision of Poletown Neighborhood Council v Detroit (1981). Municipalities had relied upon the decision which permitted the use of eminent domain for public purposes such as economic development. The challenge to the Pinnacle Project threatened municipalities’ continued use of eminent domain for those purposes.

What was the outcome?
The Michigan Supreme Court looked to art 10, sec 2 of the 1963 Michigan Constitution which states that private property shall not be taken for public use without just compensation. Stated in the affirmative, property may only be taken if it is for a “public use” and if “just compensation” is provided. In this case, the Court’s interpretation of what is a “public use” was the critical element. The Court indicated that condemned property transferred to a private entity could meet the public use test in only one of three ways:

1) if public necessity of an extreme sort requires collective action;

2) the property remains subject to public control after transfer; or

3) the reason for choosing the particular property is based on independent significance that it would serve the public good (such as elimination of blight).

The Court did not find that any of the exceptions applied to the Pinnacle Project.

It should be noted that Michigan voters, in reaction to the U.S. Supreme Court decision of Kelo v City of New London (2005), restricted the use of eminent domain even further by virtue of a constitutional amendment in 2006.

Who prepared the amicus brief?
Thomas C. Phillips
(Miller, Canfield, Paddock and Stone, P.L.C.)
Clifford T. Flood
(Miller, Canfield, Paddock and Stone, P.L.C.)