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  Guest Contributor
Timothy M. Sandefur
Timothy Sandefur is an attorney with Pacific Legal Foundation which filed a friend of the court brief in Wayne County v. Hathcock.[go to Guest index]

Condemnation Case Gets a Deserved Wrecking Ball...

[Timothy M. Sandefur] 8/24/04

One writer called it "the Dresden of eminent domain cases."

Two decades ago, Detroit's Poletown neighborhood was leveled to make way for a General Motors Corp. auto plant. Turned to rubble was an area of more than 1,200 homes, 140 businesses, six churches, and a hospital.

What was hailed as progress by some civic movers and shakers -- coincidentally, they tended to reside in other neighborhoods -- was seen somewhat differently by the blue collar homeowners who were forced to clear out of Poletown. Many of the residents sued, but the wrecking balls were blessed by the Michigan Supreme Court in Poletown Neighborhood Council v. City of Detroit. This 1981 decision was immediately recognized as a turning point in American eminent domain law.

Homeowners argued that the Michigan Constitution allows government to take property only for a "public use" – e.g., a public road, firehouse, or school.

But the Poletown court disagreed: It gave the word "public" a slippery and expansive definition -- stretching it to cover projects clearly owned and operated for private gain. Because the GM plant would create jobs, the court reasoned that condemning people's homes at the behest of the auto giant was "public" enough.

Now, 23 years later, the Michigan Supreme Court has recognized that Poletown was a mistake. In a case concerning Wayne County's attempt to condemn 1,300 acres near Detroit Metro Airport so private interests can build an office park, the court took the occasion to reverse Poletown and affirm that eminent domain should be used only to take property for the use of the public, not for the use of private corporations.

The justices recognized that the years have not been good to Poletown's reputation. A long series of controversial government land grabs have looked to that case for inspiration. Typically in these schemes, government muscle is flexed on behalf of the prosperous and powerful, while the property owners who get muscled out are not rich or politically connected.

For instance, Mississippi recently tried to condemn 23 acres of minority owned land to give to the Nissan Corp. Atlantic City, New Jersey, tried to take a widow's house so a Donald Trump casino could put up a parking lot. And in California, the Cty of Cypress condemned church land to give Costco another store site.

Sometimes a business is asked -- or forced -- to move aside for a more politically favored enterprise. Merriam, Kansas, recently condemned a Toyota dealership to sell the land to a BMW dealer. Mesa, Arizona, tried to transfer land owned by an auto shop to a hardware store.

The thinking seems to be that if a property owner isn't paying enough taxes, the city should sell their property to richer people who can pay more.

One problem with giving city planners a broad license to label property transfers as "public uses" is that while the bureaucrats can promise a lot, they can't guarantee it. Some urban analysts now believe the Poletown teardown, and its dispersal of homeowners, hastened the decline of Detroit's core business region through the 1980s.

The Michigan Supreme Court's reversal of Poletown was consistent with precedents that preceded that infamous case. A long line of decisions prior to 1981 rejected attempts to distort the concept of "public use." As early as 1877, the state Supreme Court explained that the term cannot apply to every enterprise or initiative that benefits the public in any way. If every project that indirectly benefits the public is a "public use," government could rationalize its way to taking citizens' property for any business interest that asks.

Worse, influential groups can rig the system. If government can take property from some people and give it to others, those with the best lobbyists will win, and property rights will be subject to the whims of politicians and the bidding of interest groups. Government doesn't condemn wealthy neighborhoods or the homes of powerful politicians; it takes land from people who have little political pull.

Poletown-style planning would have horrified the authors of the U.S. and Michigan Constitutions. They understood how the right to own property is essential for the protection of other freedoms. Indeed, it is especially important to defend the property rights of the poor and marginalized minorities who have less political influence.

This is why Pacific Legal Foundation urged Michigan's high court to reconsider Poletown -- and now congratulates the court for returning to the clear intent of the Constitution: Government's authority to take private property should be strictly and carefully restrained.

This way, Michiganders won't hold their homes at the mercy of lobbyists and politicians. tRO





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