Background:
This case is a continuation of the battle by the city of Lansing to exercise control of its rights of way with respect to Wolverine Pipeline’s proposed installation of a liquid petroleum pipeline underneath five city streets. See case no. 11. In that case, the city refused to consent to Wolverine’s proposed pipeline. Ultimately, the Michigan Supreme Court held that the city’s consent was required pursuant to state statute before construction of the pipeline could be begun. As a result of that ruling, Wolverine and its oil industry companions lobbied for—and got—legislative modification of the statute eliminating the obligation to obtain local consent.

Following the Legislature’s amendment of the Act, this action was filed by the city in circuit court on the basis that the Michigan Constitution required Wolverine to obtain consent from the city. The circuit judge ruled that the city’s ability to withhold its consent under Const 1963, art 7, sec 29 was weakened by the Michigan Supreme Court’s decision in City of Taylor v Detroit Edison. See case no. 7. Lansing appealed, arguing that the Taylor decision addressed the reasonable control clause of art 7, sec 29 of the Michigan Constitution and did not address the municipal consent clause of the same section. The consent clause basically provides that no public utility shall have the right to use a right of way located within a municipality without its consent.

Why did the LDF get involved?
The issue of control of the rights of way within a municipality is of ultimate concern to a municipality and directly relates to its ability to regulate public safety, health, and welfare. Although the Taylor decision eroded a municipality’s ability to exercise control under the so-called reasonable control clause of art 7, sec 29, Lansing was now challenging Wolverine’s actions under a separate provision of art 7, sec 29, i.e., the so-called utility consent clause.

What was the outcome?
The Michigan Court of Appeals interpreted the consent provision of the Constitution to require reasonableness, i.e. consent could not be withheld arbitrarily. The court further reasoned that since a municipality can only exercise its consent through a resolution or ordinance, art 7, sec 22 of the Constitution applied. That provision states that cities are granted the power to adopt resolutions and ordinances “subject to the constitution and law.” As a result, the court found that the Legislature has the authority to limit the manner and circumstances under which a city may grant or withhold consent under sec 29.

The Michigan Supreme Court denied the city’s request for an appeal.

Who prepared the amicus brief?
William J. Danhof (Miller, Canfield, Paddock and Stone, P.L.C.)
(Michigan Court of Appeals and Michigan Supreme Court)
Bree Popp Woodruff (Miller, Canfield, Paddock and Stone, P.L.C.)
(Michigan Court of Appeals)
Jeffrey S. Aronoff (Miller, Canfield, Paddock and Stone, P.L.C.)
(Michigan Supreme Court)