The intent of the takings clause
is to state that not only are takings which fail to compensate property owners
illegal, but also that takings for purely private uses are illegal regardless of
whether compensation is actually paid. This "public use" language in the
takings clause is intended to prohibit the power of the government to take
property for private uses. The purpose of the state is only to act as a public
functionary, therefore, it is false to assume that the government has the power
to advance private uses through its eminent domain power.
Unfortunately, the Michigan
Supreme Court’s decision in Poletown Neighborhood Council v. City of Detroit
substantially blurs the line between public and private uses. Dissenting from
the majority in the case, Justice Ryan warned of the implications of this
The reverberating clang of its
economic, sociological, political, and jurisprudential impact is likely to be
heard and felt for generations. By its decision, the Court has altered the law
of eminent domain in this state in a most significant way and, in my view,
seriously jeopardized the security of all private property ownership. This case
will stand...for judicial approval of municipal condemnation of private property
for private use....it seems important to describe...how government, in all its
branches, caught up in the frenzy of perceived economic crisis, can disregard
the rights of the few in allegiance to the always disastrous philosophy that the
end justifies the means.
Poletown 5-2 decision remains the law, and it is therefore necessary to
understand its concept of "public use" review.
Detroit Economic Development Corporation set out a plan to acquire, by
condemnation if necessary, a large tract of land to convey to General Motors for
an assembly plant site. The majority posed the issue at bar as:
Can a municipality use the power
of eminent domain granted to it by the Economic Development Corporations Act,
MCL 125.1601 et seq., MSA 5.3520(1) et seq., to condemn property for transfer to
a private corporation to build a plant to promote industry and commerce, and
thereby adding jobs and taxes to the economic base of the municipality and
The court was deciding this question at a time
when the legislature considered Michigan to be in an economic crisis.
Additionally, there was tremendous public support for clearing the way for the
plant. Swept up in the process were the property owners.
Interestingly, General Motors had chosen the site and approached the city about
obtaining the land. GM made demands for road improvements, tax breaks, and
exemptions from certain penalties for its plant design. This, in and of itself,
indicates that a private interest attempted to use the imprimatur of the state
to acquire land.
The court recognized that
condemnation for private use or purpose is forbidden.
It found, however, that the legislature had determined governmental actions like
those contemplated by Detroit met a public need and served an essential public
purpose of fostering employment and revitalizing the economy when passing the
Economic Development Corporations Act. The court argued that the determination
of public use is primarily a legislative function, and the court established
that it would give great deference to legislative declarations of a public
The loose judicial standard for determining a public use established by the
Poletown Court is whether "substantial proof" can be provided "that the
public is primarily to be benefitted."
Land can be taken and then conveyed to private interests. The "public benefit
cannot be speculative or marginal but must be clear and significant if it is to
be within the legitimate purpose as stated by the Legislature."
By shifting the analysis to "benefits," the court established a standard which
looks to the effects of a taking, thereby converting the determination into a
matter of policy instead of a matter of law. The court proceeded to determine
that the Detroit plan was significant to the public and therefore allowable.
Even if the land could be more beneficially used by General Motors than by its
then-residing owners, this should not justify invoking the power of eminent
domain. Justice Cooley articulated that the power was intended to be far more
limiting than the Poletown standard:
[T]here are many cases in which
the property of some individual owners would be likely to be better employed or
occupied to the advancement of the public interest in other hands than in their
own; but it does not follow from this circumstance alone that they may be
Cooley further elaborated that conveyances to private parties who could
indirectly serve the public interest were not sufficient considerations for
meeting the public use requirement:
[I]f taken for a purely private
purpose, it would be unlawful. Nor could it be important that the public would
receive incidental benefits, such as usually spring from the improvement of
lands or the establishment of prosperous private enterprises: the public use
implies a possession, occupation, and enjoyment of the land by the public at
large, or by public agencies; and a due protection to the rights of private
property will preclude the government from seizing it in the hands of the owner,
and turning it over to another on vague grounds of public benefit to spring from
the more profitable use to which the latter may devote it.
The court, in providing deference to the legislature, has prevented itself from
evaluating the nature of public use, thus has ignored the original principles
inherent in public uses discussed by Cooley and the early case law in Michigan.
Justice Ryan’s dissent indicates this represents
a major shift in the Michigan courts’ takings jurisprudence. Citing extensive
authority, he writes, "It has always been the case that this court has accorded
little or no weight to legislative determinations of ‘public use.’ ‘Whether the
use for which land is sought to be acquired by condemnation is a public one is a
All cases cited by the majority supporting deference dealt with the
legislature’s power to tax, not its power to take.
Deference to legislative pronouncements of public
use insulates laws from review to the extent that anything can be deemed
legitimate so long as it is labelled so. Justice Ryan describes the standard as
"protean," "nebulous," and limitless.
A vital component of a takings claim has been successfully removed from citizen
A 1993 Michigan Supreme Court decision, City
of Lansing v. Edward Rose Realty, Inc., also deals with the issue of
defining "public use."
A Lansing ordinance provided for mandatory access to private property by the
grantee of a city cable television service franchise. Should the owner of a
dwelling, such as Edward Rose Realty, directly or indirectly prohibit any
resident from receiving cable services by the grantee of the franchise, the
ordinance allowed the cable provider to request that the city commence
condemnation proceedings. The court differentiated this municipal action from
that of Detroit in Poletown because here there was no state-enabling
statute identifying a public use or purpose for the taking to which to defer.
The court held that a greater degree of review should be employed when no state statute exists
to which they can defer. The ordinance "must be reasonable and not oppressive,"
must be "essential or indispensable to the accomplishment of the objects and
purposes of the municipality," and must provide a clear and specific public
benefit which predominates over the benefit to the private party.
Actions by municipalities which are not acting under a mandate from the state,
therefore, receive higher scrutiny in relation to "public use." The court found
that the access requirements in this case could not withstand this level of
review and deemed the taking exceeded the city of Lansing’s authority.