Michigan Law Prevents Agencies from Engaging in Coercive Conduct
There is a long history of Michigan appellate courts recognizing the extreme power vested in agencies empowered to take property and occasions when they have abused it. “[T]he law of eminent domain permitting the taking of private property for public use is a harsh remedy….” Consumers Power v Allegan State Bank, 20 Mich App 720, 741 (1969). It is “awesome” and “severe.” Alibri v Detroit/Wayne County Stadium Auth, 254 Mich App 545, 554 (2002), rev’d, 470 Mich 895 (2004). “[T]he power of eminent domain...is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice....” In re Detroit, G H & M R Co, 248 Mich 28, 32 (1929). Condemning authorities are “not completely free to play fast and loose with landowners—telling them one thing in the office and something else in the courtroom.” Michigan Dep't of Transp v Frankenlust Lutheran Congregation, 269 Mich App 570, 584 (2006).
As a result, the Uniform Condemnation Procedures Act, which governs all formal takings in Michigan, adopted a statute provides a general limitation on agencies’ power. “In order to compel an agreement on the price to be paid for the property, an agency may not advance the time of condemnation, defer negotiations or condemnation, defer the deposit of funds for the use of the owner, nor take any other action coercive in nature.” MCL 213.74.
A case decided before implementation of the UCPA illustrates an example of coercive behavior and the extent to which Michigan courts should act to protect property owners. Bales v Michigan State Hwy Comm, 72 Mich App 50 (1976), arose during the construction of the M-14 highway. The Department of Transportation acquired houses within the footprint of the proposed highway that it intended to demolish. However, those homes were subjected to restrictions ubiquitously applied throughout the neighborhood that prevented anything other than residential homes. The Court of Appeals characterized the Department of Transportation’s position as claiming that “a constitutionally created right cannot be protected from infringement in equity but, instead, the aggrieved party must seek relief after the violation has occurred by way of a damage remedy.” Bales approved an injunction because “any possible injury to defendant is subservient to plaintiffs' aforesaid constitutionally created right.” They ruled as such despite the Department of Transportation raising “the specter of crippling ramifications to the Detroit area economy because approximately 3,400 people will be out of work until the defendant acquires the property rights. Furthermore, defendant informs us that the whole State may suffer irreparable injury because continuance of the injunction raises the possibility that close to 20 million dollars in Federal funds will be lost.”
Article 10 Section 2 of Michigan's Constitution opens with “Private property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law.” Compelling property owners to accept a de facto taking remedy in lieu of injunctive relief would make the inclusion of “first” in the constitutional provision meaningless.
While agencies enjoy awesome powers, they are restrained by legal principles designed to protect property owners. Agencies cannot be abusive when exercising those powers. Yet, for property owners to protect their rights, they must know what they are and that is best accomplished through the involvement of an experienced property owner eminent domain attorney. If you are involved in a taking, please feel free to contact me.