Programs & Services

Legal Defense Fund Top 25: Case 7

Right-of-way control
City of Taylor v Detroit Edison

475 Mich 109 (2006)

Issue: Right-of-way control – interpretation of reasonable control provision of Michigan Constitution

Taylor began a major reconstruction project along the portion of Telegraph Road passing through the city. As part of the project, an ordinance was passed directing all persons owning or leasing overhead lines, wires, and poles to relocate the facilities underground and remove all above-ground facilities. The ordinance stated that the relocation was to be done at the expense of the persons owning or leasing the lines. The Detroit Edison Company maintained that it was not obligated to pay the costs of relocation. The city sued. Detroit Edison argued that 1) the Michigan Public Service Commission (PSC) had primary jurisdiction of the case (MCL 460.6(1); 2) the ordinance exceeded the city’s right of reasonable control over its rights of way under Const 1963, art 7, sec 29; and 3) the ordinance was preempted. The Court of Appeals found in favor of the city on all issues.

Why did the LDF get involved?
The underlying issues of the case were of great significance to municipalities. There were no reported cases in Michigan deciding the issue of whether a municipality could require relocation of lines and equipment at the utility’s expense. Furthermore, there was no authority upholding Detroit Edison’s position regarding the jurisdiction of the PSC.


What action did the LDF take?
Filed an amicus brief with Michigan Supreme Court

What was the outcome?
The Michigan Supreme Court reversed the Court of Appeals and held that the authority reserved to local units of government to exercise reasonable control over rights of way is explicitly made subject to other constitutional provisions and that a municipality cannot regulate “in a manner inconsistent with state law.” The Court essentially found that the reasonable control provision was subject to rules promulgated by the PSC pursuant to state statutes. The Court noted with approval its 1915 decision of People v McGraw which interpreted similarly worded language of reasonable control as requiring that the exercise of the city’s right be consistent with and not conflict with state law. The Court also found that broad regulatory authority over public utilities was granted to the PSC in 1939. The rules promulgated by the PSC pursuant to statutory authority covered the same subject matter as, and seemingly conflicted with, Taylor’s ordinance. According to the Court, that conflict needed to be resolved by the PSC.

Who prepared the amicus brief?
David W. Centner
(Law, Weathers & Richardson, P.C.)
Ann E. Liefer
(Law, Weathers & Richardson, P.C.)

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