Government "Condemnation" Power Makes Property Rights Less Secure

People should be able to choose whether to keep what they own.  It is their right.  And as Founding Father James Madison observed in 1792, the purpose of government is to protect these private property rights.  A just government, he wrote, "impartially secures to every man, whatever is his own."  When Wayne County recently chose to take some landowners' property in order to give it to private developers, it failed this mandate of impartial, just governance.

The case involves the 1,800-acre Pinnacle Aeropark, a development that will include hotels, a golf course, retail shops, restaurants, and other businesses.  To make way for this project, existing property owners must be displaced and their land condemned.  The planners justify their action with the claim that the project will create thousands of jobs and generate more than 20 times the current property tax revenues in the affected communities.

Of course, some of the current owners who would be forced to give up their property for the development are not persuaded.   They are challenging the condemnation of about 60 acres.

The Michigan and U.S. Constitutions specifically restrict the condemnation power to  "public uses," forbidding government from taking private property away unless the government proves that the property is necessary for its operation or otherwise needed to meet its obligations to the citizenry. This vital concept is too often lost on government officials and, unfortunately, on many courts.  The Pinnacle Aeropark case is an example.

On Dec. 19, the Circuit Court in Wayne County approved the county's condemnation plans.  It explained that a condemnation must be examined along a "spectrum," and the facts are subject to a "balancing test," weighing whether the action is more for a "private gain" or a "public benefit."  The court examined the promises of new jobs and tax revenues and the impact on "economic or social well being."  Based on these criteria, the court ruled that Wayne County could decide which private use of property it prefers and impose that preference by force of law.  The case likely will be appealed.

The court's standard favors central economic planning over private property rights and coercive property transfers over the marketplace.  This reverses the presumption against condemnation generally, let alone against condemnation for private uses, in the Constitution.

Michigan court precedent has made it exceedingly difficult for private property owners to assert their rights and win.  The 1981 Michigan Supreme Court decision in Poletown Neighborhood Council v. City of Detroit, upheld as a "public use" the city of Detroit's condemnation of a large tract of land to convey to General Motors for an assembly plant.  Today, this precedent is used around the country to justify the use of condemnation for centralized economic planning.  In Poletown, the city successfully argued that its displacement of private homeowners was justified to serve economic revitalization interests recognized by the Michigan Legislature.

Factually and legally, there are many ways to distinguish the Pinnacle Aeropark case from Poletown.  For example, unlike in Poletown, the Michigan Legislature has made no specific delegating statement that condemnation for development projects such as the Aeropark are in the public interest.  Moreover, the Michigan Supreme Court demonstrated a renewed willingness to curb condemnations for private use in May 2001, when it held in Tolksdorf v. Griffith that a statute that allowed condemnation of private property in order to build private roads violated the "public use" limitation and was, therefore, unconstitutional.

In a 1996 study entitled "Reforming the Law of Takings in Michigan," the Mackinac Center for Public Policy proposed specific wording whereby the steady erosion of property rights in Michigan could be stemmed and private property rights protected—through executive order, legislation, or constitutional amendment.  Elected officials in Lansing should take the Mackinac Center's sound recommendations and protect Michigan citizens from the depredations of sweeping, arbitrary decisions.

Without judicial reanalysis of constitutional limitations on condemnation or legislation that specifically reins in the condemnation power, private property rights in Michigan will not be impartially secured.  The Pinnacle Aeropark case is recent evidence that, when great deference is given to government to prefer one private use of property over another, the allure of new tax revenue will provide an incentive for the suppression of private property rights.


(Donald J. Kochan is an adjunct scholar with the Mackinac Center for Public Policy and an associate with the Washington, D.C.-based law firm of Crowell & Moring LLP.  Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.)


In 1792, James Madison observed that a just government "impartially secures to every man, whatever is his own." In recent decades, however, government abuse of its so-called condemnation power has unjustly deprived ordinary citizens of their private property for the benefit of big-league developers. Michigan policy-makers should rein in state and local governments' abuse of this power.

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