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Michigan farm family fighting eminent domain case
By KEVIN WALKER
Michigan Correspondent

YORK TWP., Mich. — For Howard and Kelvin Braun, long-time farmers in York Township, Mich., getting a letter from the Washtenaw County Road Commission last summer telling them it might want to put a road through one of their fields wasn’t happy news.

Decades earlier the Brauns fought in court over the City of Saline’s decision to put a transmission tower on their land for a new Ford Motor Co. plant. The Brauns lost that battle, having argued unsuccessfully that the transmission tower wasn’t for a public use.

In the intervening decades the Brauns made a decision to enter some of their land in the state’s Purchase of Development Rights (PDR) program, but the road commission wasn’t aware of it.

When they got their letter from the road commission, the Brauns complained to state officials.

“We said that’s protected land,” said Brian Marl, an assistant to state Rep. Kathy Angerer, whose district encompasses some of the Brauns’ farmland.

“They were forming a plan,” Marl said of the road commission. “When you’re in the beginning stages of a plan, you don’t necessarily take everything into account.”

Although the Brauns are probably thanking their lucky stars they put their land into the state’s PDR program, they have felt besieged by urbanization for a long time.

According to the Brauns there are other proposed road changes on the table that would cut up their land.

Although having one’s property taken for the sake of a new road or other utility can be hard to accept, the general public has long accepted the use of eminent domain to make way for public utilities.

If the Kelo v. City of New London ruling by the U.S. Supreme Court last summer were to hold sway in Michigan, however, the traditional public use standard that the Brauns have had to deal with over the years would be greatly altered.

Were it not for the PDR it would then be possible under Kelo for the Brauns to have their land seized for a new housing, office or industrial park.

According to Rob Anderson, legislative counsel for the Michigan Farm Bureau, Kelo will not hold sway in Michigan. That’s because although the court’s decision in Kelo granted local units of government more power to seize private property, it also made it clear that state law takes precedence, and even mentioned Michigan as one of the states that has its own laws to address eminent domain.

“The Michigan Supreme Court has provided clarity on that question,” Anderson said.

The Michigan Supreme Court made a ruling last year that overturned a longstanding decision it had made in 1981 that had a similar thrust to Kelo. In that case, Wayne County v. Hathcock, the court overruled a 1981 case called Poletown Neighborhood Council v. Detroit.

In Poletown the Michigan Supreme Court allowed Detroit to seize multiple homes and businesses to make way for a new General Motors plant.

Detroit was allowed to condemn the entire neighborhood of Poletown, which consisted of some 1,000 homes, 600 businesses, many churches and a hospital.

The argument in Poletown was that the new plant would help revitalize Detroit’s ailing economy, in a similar vein to the argument made by the city of New London in Kelo.

The unanimous Michigan Supreme Court decision in Hathcock last year prevented the use of eminent domain to build an industrial and office park, and the court explicitly overturned the Poletown precedent.

For now this may not matter to the Brauns, since some of their land is protected by the state’s PDR program.

The Michigan Supreme Court decision, however, could prevent future developers from seizing property from producers similarly situated, who don’t have the benefit of the PDR, or who may not feel equipped to fight city hall.

The only legislation being introduced in Michigan regards the question of blight, Anderson said.

“Is my definition of blight the same as your definition of blight?” Anderson asked.

It’s a relevant question, because eminent domain has been used to seize property when it’s been deemed to be blighted, regardless of Kelo.

The legislation is moving slowly, Anderson said.

Published in the September 28, 2005 issue of Farm World.

9/28/2005