CITY OF NOVI V ROBERT ADELL CHILDRENS FUNDED TRUST
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 20, 2005
CITY OF NOVI,
Plaintiff-Appellant,
v
No. 122985
ROBERT ADELL CHILDREN'S FUNDED TRUST,
FRANKLIN ADELL CHILDREN'S FUNDED TRUST,
MARVIN ADELL CHILDREN'S FUNDED TRUST,
AND NOVI EXPO CENTER, INC.,
Defendants-Appellees.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, C.J.
In this land condemnation case where the city of Novi
is attempting to take private property to construct a road,
the first issue is whether the requirement of a public use,
under Const 1963, art 10, § 2, is met when the proposed
road will be available for use by the public but will be
primarily used by a private entity that has contributed
funds to the project.
We conclude that such a road does
qualify as a public use.
The second issue is whether,
under MCL 213.56, a court can find the city has abused its
discretion in determining there is a public necessity for
the
condemnation
when
the
alternatives to the taking.
city
has
not
considered
We conclude that a failure of
the city to consider alternatives was not an abuse of its
discretion.
Because
the
Court
of
Appeals
incorrectly
decided that the proposed road was not a public use, we
reverse that decision.
We also find no fraud, error of
law, or abuse of discretion in the city’s determination
that there exists a public necessity to take defendants’
property for the proposed project.
Accordingly, we remand
this
for
matter
to
the
trial
court
entry
of
summary
disposition in favor of plaintiff.
I
For many years traffic congestion at the intersection
of Grand River Avenue and Novi Road in the city of Novi was
a concern to the city because it represented a growing
traffic hazard.
“ring
road”
As early as 1984 a study recommended a
around
the
intersection
to
relieve
traffic
congestion and provide access to vacant land not fronting
on
Grand
River
Avenue
or
Novi
Road.
The
study
also
recommended a road, referred to here as the “spur road,”
from the northwest side of the ring road, that would access
industrial
establishments
Grand River Avenue.
that
were
then
accessed
from
The study recommended the spur road
2
because
access
the
on
Grand
accidents.
resolve
employee
traffic
River
from
Avenue
was
the
industries
resulting
in
with
frequent
The study noted that, but for “the need to
[this]
critical
traffic
problem,”
the
northwest
quadrant of the ring road project “may have been abandoned
altogether.”
Wisne Corporation was one of the industrial entities
that would be served by the spur road.1
The new spur road
was to traverse property owned by defendants, even though
Wisne
Corporation
owned
property
used for a new access road.
that
could
possibly
be
Wisne at one point agreed to
pay $200,000 toward the funding of the spur road, and the
road was to be named A.E. Wisne Drive.
In
August
1998,
the
Novi
City
Council
passed
resolutions declaring the necessity for taking defendants’
property
for
the
purpose
of
creating
A.E.
Wisne
Drive.
Plaintiff filed a condemnation complaint in September 1998
pursuant to the Uniform Condemnation Procedures Act, MCL
213.51 et seq.
Defendants
purpose
and
filed
necessity
a
of
motion
the
1
Wisne Corporation changed
several times over the years.
3
challenging
taking,
the
pursuant
ownership
and
public
to
its
MCL
name
213.56.
Defendants claimed that the taking was for the
private purpose of benefiting Wisne, pointing out Wisne’s
financial support for the road and documents referring to
the benefit Wisne would receive from the road.
Defendants
did not deny that the public would use the street.
Rather,
the thrust of defendants’ argument was that the road was
planned to primarily serve private entities and that the
city wanted to include it in the plans because the funding
Wisne agreed to provide would entitle the city to obtain
state
funding
for
the
rest
of
the
ring
road
project.
Defendants also alleged that the taking was not necessary,
and
that
the
city
exceeded
its
authority
because
the
enabling legislation that gave it authority to condemn did
not permit it to take property from one private owner and
transfer it to another private owner.
In 1999, the trial court held a three-day evidentiary
hearing and bench trial, during which a dozen witnesses
testified.
The parties stipulated that the existing access
drive used by Wisne was hazardous and that it was going to
be eliminated as a result of part of a bridge improvement
4
project undertaken by the Oakland County Road Commission on
Grand River Avenue.2
The circuit court concluded that the proposed taking
was
unconstitutional.
The
court
applied
the
heightened
scrutiny test set forth in Poletown Neighborhood Council v
Detroit, 410 Mich 616; 304 NW2d 455 (1981),3 concluding that
although the project “further[ed] a benefit to the general
public,”
it
benefited
a
specific,
identifiable,
private
interest, and this private benefit predominated over the
benefit to the general public.
Although the trial court
did not expressly say so, presumably it found that under
Poletown
such
a
project
from
Without
further
“Plaintiff
necessity
predominant
the
realm
discretion,”
of
actions
fraud,
and
the
court
evidence
error
thus
benefit
constitutional,
explanation,
City’s
by
private
of
the
law
a
removed
public
then
lack
and/or
proposed
uses.
held
of
that
public
abuse
taking
the
of
was
unconstitutional.
2
Despite eliminating Wisne’s access drive, the Oakland
County Road Commission did not develop a new access road
off Grand River Avenue, relying instead on the access that
was to be provided by the planned A.E. Wisne Drive.
3
On July 30, 2004, Poletown was overruled by this
Court in Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765
(2004).
5
In analyzing plaintiff’s appeal, the Court of Appeals
also relied on Poletown, recognizing that it was bound to
do so.
253 Mich App 330, 343; 659 NW2d 615 (2002).
It
noted that both the majority opinion and Justice Ryan’s
dissent
in
necessity
Poletown
as
being
regarded
separate
the
and
public use or public purpose.
concept
distinct
of
public
from
that
of
Although it found that the
trial court had erred by conflating the two concepts, the
Court found this error harmless because it agreed with the
trial court that the private interest predominated over the
public
interest,
unconstitutional.
“speculative
making
the
proposed
taking
The Court found the public benefit to be
and
marginal”
and
the
private
interest
“specific and identifiable,” primarily to the benefit of
Wisne.
It
concluding
affirmed
that,
the
under
judgment
the
of
Poletown
the
trial
heightened
court,
scrutiny
test, plaintiff failed to show the project was a public
use.
We granted the city of Novi’s application for leave to
appeal after issuing our decision in Wayne Co v Hathcock,
471 Mich 445; 684 NW2d 765 (2004).
471 Mich 889 (2004).
II
Under
shall
not
the
be
Michigan
taken
Constitution,
for
public
6
private
use
property
without
just
compensation.
Const 1963, art 10, § 2.
This provision
precludes condemnation of private property for private use,
even though some “public interest” may be said to be served
by such private use.
Hathcock, supra at 472; Portage Twp
Bd of Health v Van Hoesen, 87 Mich 533; 49 NW 894 (1891).
We review de novo the question whether a proposed taking is
constitutional.
Hathcock, supra at 455.
The statutes under which plaintiff was proceeding are
the Home Rule City Act, MCL 117.1 et seq., and the Uniform
Condemnation Procedures Act, MCL 213.51 et seq.
The former
authorizes plaintiff to condemn private land for boulevards
and streets, among other uses, MCL 117.4e, and the latter
provides
the
condemnation.
procedures
plaintiff
must
follow
for
Defendants’ challenge to the proposed taking
was made pursuant to MCL 213.56, which allows the owner of
the property to be taken “to challenge the necessity of
acquisition of all or part of the property for the purposes
stated in the complaint” by filing a motion asking that the
necessity be reviewed.
MCL 213.56(1).
provides
proposed
agency,
that
“the
when
the
determination
of
The statute also
taking
public
is
by
necessity
a
public
by
that
agency is binding on the court in the absence of a showing
of
fraud,
213.56(2).
error
of
law,
or
abuse
of
discretion.”
MCL
We review the trial court’s factual findings
7
for clear error, but its legal conclusions are reviewed de
novo.
Federated Publications, Inc v City of Lansing, 467
Mich 98, 106; 649 NW2d 383 (2002).4
III
There
does
plaintiff,
in
not
its
appear
charter,
to
has
be
any
claimed
dispute
for
that
itself
the
condemnation powers granted it by the Legislature under the
Home Rule City Act.
The act authorizes plaintiff to take
private property for the purpose of a public road.
117.4e.
Defendants also do not question that the ring road
part of the project is a public road.
case
MCL
is
whether
the
spur
road
part
The heart of this
of
the
project
constitutes a private use requiring rejection of part or
all
of
the
road
project.
Plaintiff
asserts
that
the
planned spur road is a public use and that defendants have
not successfully challenged the necessity of the project.
We agree.
This
concerning
Court
public
recently
use
in
clarified
Hathcock,
4
Michigan’s
supra.
However,
law
we
Cases stating that the trial court’s determinations
in condemnation cases are reviewed for clear error are
correct only to the extent that this standard applies to
factual findings.
See, e.g., City of Troy v Barnard, 183
Mich App 565, 569; 455 NW2d 378 (1990); Nelson Drainage
Dist v Filippis, 174 Mich App 400, 403; 436 NW2d 682
(1989).
8
declined to provide a “single, comprehensive definition of
‘public
use
overruled
.
.
.
.’”
Hathcock,
supra
at
471.
We
Poletown’s heightened scrutiny test because it
violates our Constitution, and instead set forth the threefactor
test
proposed
opinion in Poletown.
by
Justice
Ryan
in
his
dissenting
Under Hathcock, when land condemned
by a public agency is transferred to a private entity, we
do not weigh the relative benefits but instead analyze the
facts to see if any of three conditions are met.5
However,
such a transfer of property is not proposed here; the city
will retain ownership of the land.
Thus, although Hathcock
informs us that we are not to use Poletown’s heightened
scrutiny test, it does not provide us with the elements to
apply when the public agency retains ownership and control.
Plaintiff urges us to hold that any road project is
unquestionably a public use.
In Poletown, supra at 672,
Justice Ryan quoted Rindge Co v Los Angeles Co, 262 US 700,
706; 43 S Ct 689; 67 L Ed 1186 (1923), where the United
5
Under Hathcock, the transfer of condemned property to
a private entity may be appropriate where: (1) “‘public
necessity of the extreme sort’” requires collective action;
(2) the property remains subject to public oversight after
the transfer to the private entity; or (3) the property is
selected
because
of
“‘facts
of
independent
public
significance,’” rather than the interests of the private
entity receiving the property.
Hathcock, supra at 476,
quoting Poletown, supra at 674-681 (Ryan, J., dissenting).
9
States Supreme Court said, “‘That a taking of property for
a highway is a taking for public use has been universally
recognized, from time immemorial.’”
However, we agree with
defendants that the single fact that a project is a road
does not per se make it a public road.
In Rogren v Corwin, 181 Mich 53, 57-58; 147 NW 517
(1914), we explained that the difference between public and
private use in the context of roads
“depends
largely
upon
whether
the
property
condemned is under the direct control and use of
the
government
or
public
officers
of
the
government, or, what is almost the same thing, in
the direct use and occupation of the public at
large, though under the control of private
persons or of a corporation . . . .”
[Quoting
Varner v Martin, 21 W Va 534, 552 (1883).]
The
Rogren
Court
continued
quoting
Varner
for
its
definition of when a road is a public road and when it is a
private road:
“All agree that, if the road has been
established by public authority, and the damages
for the condemnation of the land has been paid by
the general public, and the road is under the
control and management of public officers, whose
duty it is to keep it in repair, then it is a
public
highway,
and
the
legislature
may
constitutionally authorize the condemnation of
land for the route of such a road, though it may
have been opened under such act by a county court
on the application of a single person to whose
house the road led from some public road, and
though it may not have been expected when the
road was established that it would be used to any
considerable extent by any person, except the
party for whose accommodation it was opened.”
10
[Rogren, supra at 58, quoting Varner, supra at
554.]
Thus,
according
to
Rogren,
where
the
public
body
establishes a road, pays for it out of public funds, and
retains
control,
management,
and
responsibility
for
its
repair, the Michigan Constitution allows private land to be
condemned for the project, no matter what the proportional
use
of
the
road
will
be
by
the
public
or
by
private
entities.
Under the Rogren analysis, the spur road proposed by
plaintiff is a public use.
Plaintiff initiated the project
in response to the growing traffic problems in the area.
Ownership, control, and maintenance will remain with that
public body.
The public will be free to use and occupy the
spur, and although Wisne may be the primary user of the
spur, “[i]t is the right of travel by all the world, and
not the exercise of the right, which constitutes a way a
public highway.”
Road Dist No 4 v Frailey, 313 Ill 568,
573; 145 NE 195 (1924).
Wisne is to be granted no interest
in the property and will have no ability to control use of
or access to the road.
We therefore find the proposed
project a public road, and thus a public use.
We do not find the fact that Wisne was expected to
contribute to the funding of the road dispositive of the
11
question
of
public
use.
“The
fact
that
a
private
individual pays for the right of way does not change the
character of the road.”
Id. at 574.
See also 2A Nichols,
Eminent Domain (3d ed), § 7.03[5][e], p 7-51.
The county’s
role in the hazardousness of the original driveway, and in
its removal, is also not relevant.
In sum, when the public
body that establishes a road retains ownership and control
of it, and the public is free to use and occupy it, that
proposed use is a public use.
Therefore,
in
accord
with
the
characteristics
of
public use identified in Rogren, the project proposed by
plaintiff
is
a
public
use.
The
lower
courts
erred
in
applying the Poletown test to this case because no property
interest
is
being
transferred
to
a
private
entity
and
because, even if there were such a transfer, Hathcock’s
three-factor
test
would
apply,
rather
than
Poletown’s
heightened scrutiny test.6
IV
Defendants also have challenged the proposed taking on
the basis of public necessity.
6
It is required pursuant to
We note that the Court of Appeals attempted to apply
such a test by looking to Justice Ryan’s Poletown dissent.
However, the test applies when there is a transfer of
property to a private entity, which did not occur here.
12
MCL 213.56 that there be a public necessity for the taking
to be permitted.
Specifically, there must be a necessity
for the taking “of all or part of the property for the
purposes stated in the complaint . . . .”
MCL 213.56(1);
State Hwy Comm v Vanderkloot, 392 Mich 159, 175; 220 NW2d
416
(1974).
Yet,
pursuant
to
the
statute,
the
determination of necessity is left not to the courts but to
the public agency, which in this case is the city.
only
justiciable
challenge
following
the
The
agency’s
determination is one based on “fraud, error of law, or
abuse of discretion.”
MCL 213.56(2).
None of these bases
is shown to exist here.7
Fraud does not provide defendants a basis for relief
in
this
case
because
the
supported by the record.8
requisite
elements
are
not
Moreover, under the Home Rule
7
We agree with the dissent that we first must review
the trial court’s decision on this issue for clear error.
Post at 17. However, the trial court’s conclusion that the
project was not necessary was clearly based on an erroneous
legal theory (i.e., that there was no public use and thus
no necessity). Moreover, both parties assured the Court at
oral argument that the record was sufficient for us to make
a determination on the necessity issue without a remand.
8
made
that
made
as a
The elements of fraud are: (1) that the charged party
a material representation; (2) that it was false; (3)
when he or she made it he or she knew it was false, or
it recklessly, without any knowledge of its truth and
positive assertion; (4) that he or she made it with
(continued…)
13
City Act, plaintiff has the legal authority to condemn this
land for a public road, so it has not made an error of law.9
We
are
left
discretion
in
to
review
determining
whether
that
plaintiff
plaintiff’s
abused
its
property
was
necessary to complete this project.
An
abuse
of
discretion
occurs
when
an
unprejudiced
person considering the facts upon which the decision was
made would say that there was no justification or excuse
for the decision.
Gilbert v DaimlerChrysler Corp, 470 Mich
749, 761-762; 685 NW2d 391 (2004).
Discretion is abused
when the decision results in “an outcome falling outside
this principled range of outcomes.”
People v Babcock, 469
Mich 247, 269; 666 NW2d 231 (2003).
Here, defendants’
objections to the necessity of taking their property for
the proposed road are based on the assertion that the city
(…continued)
the intention that it should be acted upon by the other
party; (5) that the other party acted in reliance upon it;
and (6) that the other party thereby suffered injury.
Scott v Harper Recreation, Inc, 444 Mich 441, 446 n 3; 506
NW2d 857 (1993).
Defendants at most have asserted that
plaintiff made “untrue” statements and behaved in an
“unseemly” manner.
Nowhere does the record show any
reliance or injury resulting from these acts.
9
Defendants claim that plaintiff’s condemnation
complaint
is
not
supported
by
appropriate
enabling
legislation.
This claim is based on the assertion that
plaintiff is not authorized to take private land for a
private use. Because we conclude that the road is a public
use, defendants’ argument is without merit.
14
never
considered
any
alternatives
and
alternative locations were available.
that
reasonable
Even if that were
so, such facts would not remove the proposed road from the
“principled
range
of
outcomes.”10
The
city’s
decision-
making process is not what we review; rather, we look at
the resulting outcome.
The city is not obligated to show
that its plan is the best or only alternative, only that it
is
a
reasonable
one.11
The
dissent’s
insistence
that
plaintiff has the burden of proving necessity is clearly
contrary to the deference the Legislature requires of us.
The statute not only limits the grounds for reversal and by
its language places that burden on defendants, but also
10
Although defendants contend that plaintiff could
have built an alternative to the proposed Wisne drive on
land actually owned by Wisne, the record indicates that
such an alternative would still have exited onto Grand
River
Avenue.
We
note
in
passing
that
such
an
“alternative” would likely have defeated the purpose of
relocating the access road, because it would have done
nothing to eliminate the “critical traffic problem” posed
by the exit onto Grand River Ave.
11
In Vanderkloot, supra at 172-173, we identified
numerous factors that might play a role in determining the
routing of a road, including “comparative costs of
construction, directness, comparative costs of maintenance,
safety, probable amount of travel, convenience, topography,
aesthetics,
etc.”
That
is
why
these
legislative
determinations are entitled to a highly deferential
standard of judicial review, and will not be disturbed
except where there is evidence of fraud, error of law, or
an abuse of discretion.
15
allows
only
thirty
days
between
when
defendants
file
a
necessity motion and when the hearing is held, implicitly
limiting
discovery
Legislature
adds
on
a
the
issue.
final
hurdle
MCL
for
213.56.
defendants
The
by
permitting appellate review of the trial court’s decision
only by leave granted.
MCL 213.56(6).
Because defendants
have not shown that the proposed route of the public road
is outside the zone of reasonable alternatives, we find
plaintiff did not abuse its discretion in determining that
the taking of defendants’ property is necessary for the
ring road project.
V
In his dissent, Justice Cavanagh sua sponte raises the
question of mootness,12 concluding that the city does not
12
Where the facts of a case make clear that a
litigated issue has become moot, a court is, of course,
bound to take note of such fact and dismiss the suit, even
if the parties do not present the issue of mootness.
“‘“Courts are bound to take notice of the limits of their
authority, and a court may, and should, on its own motion,
though the question is not raised by the pleadings or by
counsel, recognize its lack of jurisdiction and act
accordingly by staying proceedings, dismissing the action,
or otherwise disposing thereof, at any stage of the
proceeding.”’”
Daniels v Peterson, 462 Mich 915, 917-918;
615 NW2d 14 (2000) (Kelly, J., dissenting) (quoting Fox v
Univ of Mich Bd of Regents, 375 Mich 238, 242; 134 NW2d 146
[1965], quoting In re Fraser Estate, 288 Mich 392, 394; 285
NW 1 [1939]). Because “‘[t]he judicial power . . . is the
right to determine actual controversies arising between
(continued…)
16
intend to pursue this project.
To make this argument, he
relies exclusively on the colloquy at oral argument.
While
we do not think that that argument supports his conclusion,
which we will discuss below, a brief review of the basic
principles of mootness law also shows that it is premature
to declare this matter moot.
When a complaint is filed and an actual injury is
alleged, a rebuttable presumption is created that there is
a
genuine
case
or
controversy.
See
Nat’l
Wildlife
Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 631;
684 NW2d 800 (2004).
The case may be dismissed as moot if
the moving party satisfies the “heavy burden” required to
demonstrate mootness.
MGM Grand Detroit, LLC v Community
Coalition for Empowerment, Inc, 465 Mich 303, 306; 633 NW2d
357 (2001), citing Los Angeles v Davis, 440 US 625, 631; 99
S Ct 1379; 59 L Ed 2d 642 (1979).
brought,
allegations
“the
of
plaintiff
injury
must
with
If such a motion is
further
support
documentation”
and
sufficiently support its claim if it goes to trial.
the
must
Nat’l
Wildlife, supra at 631.
(…continued)
adverse litigants,’” Anway v Grand Rapids R Co, 211 Mich
592, 616; 179 NW 350 (1920) (citation omitted), a court
hearing a case in which mootness has become apparent would
lack the power to hear the suit. This is not such a case.
17
These procedural requirements are entirely lacking in
this case at this time.
No motion or other pleading has
claimed mootness and there has been no “support” so as to
meet any burden, much less the “heavy burden” required to
demonstrate mootness.
Notwithstanding this, the dissent evidently feels that
the record here is sufficient so that we sua sponte can
proceed.
We
conclusion.
argument
think
The
here,
the
record
cannot
dissent,
relying
entirely
infers
that
several
support
on
that
the
oral
statements
by
plaintiff’s counsel support a finding of mootness.
The
essence of the first statement made in response to Justice
Corrigan’s query about whether the ring road part of the
project could be split off was that it could not because
plaintiff did not want the project built piecemeal.
does
not
desire
to
getting
indicate
abandonment;
consolidate
underway.
all
rather,
parts
Certainly
of
it
the
in
This
refers
project
the
to
a
before
absence
of
contradictory evidence, of which none has been presented,
the draconian reading given by the dissent is unwarranted.
The second claim is that the plaintiff, in rebuttal
argument,
failed
to
“contest
or
deny
that
there
are
currently no plans to pursue the project.”
Post at 4.
Yet,
such
plaintiff
had
no
reason
18
to
respond
in
a
way
because the defense counsel did not say the city had no
intention of completing the spur road for which defendants’
property was being condemned; he merely said the ring road
project,
with
its
rescinded
state
funding,
was
“gone.”
This appears to be nothing more than a reference to the
lapse of funding, which happens invariably when there is
extended litigation.
With this understanding, a rebuttal
would not, for a person conversant with this process, call
for a full vindication of continued interest in the whole
project.
Thus, that one did not come is unexceptional and
in no event establishes mootness.
Finally, the dissent faults plaintiff for its response
to
the
defense
counsel’s
observation
that
the
reason
plaintiff continued the litigation was because it wants a
rule of law reversing the decision of the Court of Appeals.
How surprising is it that an appellant would concede that
it wanted the Court of Appeals decision reversed?
very, we believe.
Not
Surely it says nothing about mootness.
We conclude therefore that plaintiff’s complaint is a
matter of current controversy because there is no evidence
here presented, indeed only defendants’ speculation, that
plaintiff
would
not
proceed
prevailing in this Court.
with
the
condemnation
upon
On remand, should the defendants
conclude that mootness actually is an issue, they can raise
19
it in the normal course and let the trial court determine
if they have met their burden.
Such has not been shown on
the record before us, and thus we conclude that this matter
is not moot and is appropriate for adjudication.
VI
We hold that the proposed road and spur are for a
public use, and therefore the proposed condemnation does
not violate Const 1963, art 10, § 2. We also hold that
plaintiff’s
necessary
determination
to
complete
the
that
ring
defendants’
road
property
project
does
is
not
violate the UCPA because it does not indicate fraud, error
of
law,
or
an
abuse
of
discretion.
Accordingly,
the
decisions of the Court of Appeals and the circuit court are
reversed, and this matter is remanded to the circuit court
for further proceedings not inconsistent with this opinion.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
20
S T A T E
M I C H I G A N
O F
SUPREME COURT
CITY OF NOVI,
Plaintiff-Appellant,
v
No. 122985
ROBERT ADELL CHILDREN'S FUNDED TRUST,
FRANKLIN ADELL CHILDREN'S FUNDED TRUST,
MARVIN ADELL CHILDREN'S FUNDED TRUST,
AND NOVI EXPO CENTER, INC.,
Defendants-Appellees.
_______________________________
WEAVER, J. (concurring).
I
concur
in
the
majority
opinion
that
the
road
proposed by the city of Novi is a public use under Const
1963, art 10, § 2 and private property may be condemned for
the
construction
established,
paid
of
the
for,
road
the
road
controlled
and
because
will
and
managed
be
by
a
public body and because the public at large will be able to
use the road.
See Rogren v Corwin, 181 Mich 53, 57-58; 147
NW 517 (1914).
The majority correctly notes that this case does not
involve
the
exercise
of
transfer
eminent
of
private
domain
from
property
one
through
private
entity
the
to
another and thus is not controlled by this Court’s recent
decision in Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765
(2004).
courts
But then the majority suggests that the lower
also
erred
because
if
there
had
been
such
a
transfer, the lower courts should have applied Hathcock’s
three-factor test.
Ante at 12.
courts’
in
decisions
this
However, because the lower
case
preceded
this
Court’s
decision in Hathcock, the lower courts could not have erred
by not applying Hathcock.
Id.
I also concur in the majority opinion that the city of
Novi did not commit fraud, an error of law, or abuse its
discretion when it declared that the condemnation of the
property in question was necessary under MCL 213.56.
Finally,
I
agree
with
the
majority
that
the
case
before us is not moot and that this Court cannot avoid
addressing
the
constitutional
and
statutory
questions
presented on the basis of the dissent’s assumption that the
proposed road project will not proceed.
join
the
majority’s
purported
However, I do not
“review
of
the
basic
principles of mootness law . . . . ” Ante at 17.
The
majority does not in fact review Michigan’s law regarding
moot cases.
Instead, the majority imports a discussion of
subject-matter jurisdiction requirements from a case that
involved
standing.
See
Nat’l
Wildlife
Federation
v
Cleveland Cliffs Iron Co, 471 Mich 608, 631; 684 NW2d 800
(2004).
As I stated in my opinion concurring in the result
2
only in Nat’l Wildlife, the cited discussion had little to
do with the question of standing that was at issue in Nat’l
Wildlife.
The
cited
discussion
similarly
has
little
relevance to the question whether the issues presented in
this case are moot.
Elizabeth A. Weaver
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
CITY OF NOVI,
Plaintiff-Appellant,
v
No. 122985
ROBERT ADELL CHILDREN'S FUNDED TRUST,
FRANKLIN ADELL CHILDREN'S FUNDED TRUST,
MARVIN ADELL CHILDREN'S FUNDED TRUST,
AND NOVI EXPO CENTER, INC.,
Defendants-Appellees.
_______________________________
CAVANAGH, J. (dissenting).
I
This
respectfully
matter
is
moot
dissent
and,
authority to decide it.
from
the
majority
consequently,
we
are
opinion.
without
With regard to the majority’s
substantive analysis, the majority erroneously decides a
matter that should first be addressed by the trial court.
Further, by improperly diminishing the degree of inquiry
that should be made into the city’s condemnation decision,
the majority erroneously concludes that the city’s taking
met the standard for public necessity.
I.
MOOTNESS
“The principal duty of this Court is to decide actual
cases and controversies.”
Federated Publications, Inc v
City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002),
citing Anway v Grand Rapids R Co, 211 Mich 592, 610; 179 NW
350 (1920).
“To that end, this Court does not reach moot
questions or declare principles or rules of law that have
no practical legal effect in the case before us unless the
issue
is
recur,
one
yet
of
public
evade
significance
judicial
that
Id.,
review.”
is
likely
citing
to
Anway,
supra at 610, and In re Midland Publishing Co, Inc, 420
Mich 148, 152 n 2; 362 NW2d 580 (1984).
Today the majority grants the city’s request for entry
of a judgment on its condemnation suit, despite the fact
that the relief granted has no practical legal effect on
the
parties
defendants’
project.
city’s
to
this
land
so
claim.
that
The
it
city
could
sued
pursue
to
a
condemn
particular
As identified in its condemnation complaint, the
project
involved
constructing
a
ring
road
and
a
connecting spur, the latter of which was designed to rest
on
defendants’
property.1
A
review
of
both
parties’
statements of facts in their briefs to this Court reveal
that the funding for the ring road project was rescinded by
the funding agency in 1999.
In the briefing, there is
1
The parties’ nomenclature for the whole project is
the “ring road project.” The majority’s assertion, ante at
19, that plaintiff represented “merely” that the “ring road
project” was gone, and this meant that the spur road
portion is still pending, is not borne out by the facts.
2
nothing declaring, and nothing from which to infer, that if
the city prevails on its condemnation claim, it has the
present
ability
and
the
present
intent
to
pursue
the
originally intended project.
At oral argument, this Court made several inquiries
regarding the project’s status and the potential mootness
of
this
appeal.
First,
Justice
Corrigan
asked
whether
there was any reason why this Court could not issue an
order allowing the ring road portion of the project to
proceed while the spur portion of the project was still
under consideration.
Counsel for the city responded:
We are now, Your Honor, several years
removed from the road project.
This was not a
piecemeal kind of project.
Part of the reason
for the industrial spur, for example was that the
Ring Road where it was proposed to connect to
Grand River would have been too close to this
driveway on Grand River that currently served the
Wisne property.
That was one of the reasons to
have the industrial spur. [Emphasis added.]
Counsel elaborated, “It was difficult at the trial and
in addition now, 6 years, 7 years removed from when the
project was started, the project itself has kind of been
uncertain.”
During
(Emphasis added.)
defense
counsel’s
argument,
Justice
Kelly
asked:
You began to develop an idea and you didn’t
complete it because you were interrupted.
Were
3
you telling us that when Wisne was sold the whole
project became uninteresting to the city?
Counsel replied:
It is gone forever and what [counsel for the
city] will tell you probably because he has to is
that maybe someday it will get built.
The
reality
of
the
situation,
and
there
were
depositions on this point, that Ring Road is
gone.
And the driveway that they are proposing
now would extend to nothing. [Emphasis added.]
Interestingly, on rebuttal, counsel for the city did
not contest or deny that there are currently no plans to
pursue
the
project.
Rather,
he
attempted
to
proffer
alternative reasons why this Court should decide this case:
Very briefly, and I’ll stay within the two
minutes, the question was raised kind of a
mootness kind of question.
Here is the city’s
response on that.
It is true that we have a
published Court of Appeals opinion that we think
is very much wrong on the issue of public use and
what the standard of review is with regard to
public use in this kind of case.
It’s relevant
not just for the future and how trial courts are
going to apply it, it’s relevant to this case
with regard to is there a responsibility for the
attorney fees that were incurred on behalf of the
property owner if that case is not dealt with and
found to have been correct or incorrect, so there
is a reality for this case that needs to be dealt
with. It’s not moot. [Emphasis added.][2]
2
It is not surprising at all that counsel for
plaintiff wants this Court to reverse the decision of the
Court of Appeals. See ante at 19. What is surprising is
that counsel for plaintiff offered nothing more than this
desire in response to the questions that were raised
regarding mootness.
4
Our
jurisprudence
regarding
mootness
established for well over a century.
has
been
There is no question
but that a court “‘will not take jurisdiction, unless it
can
afford
immediate
relief,
and
certainly
will
not
undertake, where there is no matter in dispute, to declare
future rights.’”
Anway,
supra at 609, quoting
Woods v
Fuller, 61 Md 457, 460 (1884), citing Heald v Heald, 56 Md
300 (1881).
“‘It will never undertake to decide upon and
determine a contingency that may never arise, unless such
determination
is
necessary
for
the
decision
of
some
immediate relief to be granted, and which the court can
enforce by a decree.’”
Id.
supra at 460 (emphasis added).
at 609-610, quoting
Woods,
“‘Where a complainant has
sustained no injury and the object of the action is merely
to obtain a declaration as to the constitutionality of a
legislative act, the question presented to the court is
merely an abstract one and the action will be dismissed.’”
Id. at 610, quoting Hanrahan v Buffalo Terminal Station
Comm, 206 NY 494, 504; 100 NE 414 (1912) (emphasis added).
Counsel for the city expressly stated that relief is
sought in this case not because the city intends to pursue
the road project, but to overturn what it perceives as an
erroneous Court of Appeals opinion and to render guidance
5
for trial courts addressing this issue in the future.3
We
are constitutionally proscribed from granting declarations
of
this
sort,
despite
originates from a party.
whether
the
mootness
inquiry
See id.; see also Sibron v New
York, 392 US 40, 57; 88 S Ct 1889; 20 L Ed 2d 917 (1968)
(recognizing
doctrine).
the
constitutional
genesis
of
the
mootness
In many instances, both parties may strongly
desire a court ruling, despite the moot nature of the case.
But where the ruling is purely advisory and has no effect
on the parties’ rights, a court is without jurisdiction to
entertain the claim.
Thus, the majority’s puzzlement over
the dissent’s effort to address mootness is puzzling in and
of itself.
Although
assuredly
it
has
frustrating
been
aptly
recognized
to
find
that
a
that
it
“is
jurisdictional
impediment prevents us from reaching the important merits
[of the] issues that were the reason for our agreeing to
hear
[a]
case,”
it
is
simultaneously
true
that
we
nonetheless “cannot ignore such impediments for purposes of
our appellate review without simultaneously affecting the
principles that govern district courts in their assertion
3
Such a reading is hardly “draconian.”
18.
6
See ante at
or retention of original jurisdiction.”
Honig v Doe, 484
US 305, 341-342; 108 S Ct 592; 98 L Ed 2d 686 (1988)
(Scalia, J., dissenting).
See also the collection of cases
noted in City of Warren v Detroit, 471 Mich 941 (2004)
(Markman, J., concurring).
The
city,
having
failed
to
confirm
or
present
any
supporting facts that it is currently pursuing the road
project
for
which
this
taking
was
ostensibly
required,
leaves us no choice but to declare that there is simply no
controversy
parties.
remaining
no
relief
available
to
the
It is unfortunate that the majority does not
recognize this.
for
and
entry
of
Instead, the majority remands this case
a
judgment
defendants’ property.
that
the
city
can
condemn
But that judgment is meaningless.
The basis for the city’s condemnation complaint, in which
it declared that it required defendants’ property for its
ring
road
project,
project is defunct.
simply
no
longer
exists
because
the
As defense counsel noted, constructing
the spur on defendants’ property would be an exercise in
futility
connect
because
it.
there
is
Consequently,
no
ring
the
road
trial
with
court
which
will
to
enter
judgment on the city’s condemnation complaint, but the only
effect of that judgment will be that the city will know
that, if, at some time in the future it decides to pursue
7
the road project, it has a Supreme Court advisory opinion
in its favor.
Because
of
the
tremendous
restrictions
a
potential
taking puts on a property owner’s ability to use or dispose
of
his
land,
the
city
should
not
get
the
benefit,
and
defendants should not get the detriment, of today’s ruling.
In Horton v Redevelopment Comm’n of High Point, 262 NC 306;
137 SE2d 115 (1964), a concurring justice of the North
Carolina Supreme Court commented on the appropriateness of
requiring a city to show that it has present intent and
present
ability
redevelopment
to
project
private property.
begin
when
the
and
complete
project
an
urban
involves
taking
The principles espoused in the justice’s
thoughtful analysis are equally applicable in the case at
hand, and bear repeating:
The
urban
redevelopment
law
and
the
decisions of this Court have given ample notice
that the City must show present ability to
finance the project. This may be done by the use
of funds on hand derived from sources other than
taxation, or the City must have the present
authority to get the money by means other than by
pledging the credit of the City.
This is so
because the filing of the plan prevents the owner
of the property from dealing with it as his own.
He cannot improve it, or rent it, or sell it,
except at the hazard of being ejected at the will
of the Commission.
His property is virtually
frozen by the plan. The filing of a lawful plan
is equivalent to a restriction of the owner’s
right to use his property as of the date of the
taking of any interest therein.
The law wisely
8
provides
that
authorities
may
not
acquire
property until the plan shows financial ability
to complete the project.
The taking of private
property is in derogation of a common law right
of the owner, and the act which authorizes the
taking must be strictly construed.
[Horton,
supra at 328 (Higgins, J., concurring).]
Likewise in this case, the majority’s ill-conceived
advisory
opinion
will
place
defendants’
property
in
a
perpetual state of uncertainty, thus effectively depriving
them of their common-law right to use their property as
they see fit.
Despite that fact, the majority apparently
does not feel bound by the well-established principles set
out by both the United States Supreme Court and this Court
that dictate against reaching the merits of this claim.
The city’s request for this Court’s legal guidance to
combat what it alleges is an incorrect Court of Appeals
analysis is an insufficient basis on which to disregard the
moot
nature
of
this
claim.
And
because
the
majority
insists on issuing an opinion, its grant of “permission” to
the parties to raise this matter before the trial court is
too little, too late.
an
advisory
opinion
Plaintiff gets what plaintiff wants:
from
this
Court
on
public
use
and
necessity.
Further, the city’s plea for us to decide the matter
so that a determination regarding attorney fees can be made
is easily rejected.
I am unaware of any such exception to
9
the mootness doctrine.
wholly
obviate
appeal
the
would
Indeed, such an exception would
doctrine
invariably
because
advance
a
the
party
to
argument
a
moot
that
a
decision is required so that one party can seek attorney
fees.
Nor is it dispositive that neither party briefed the
mootness issue.
Because of the constitutional dimensions
of jurisdiction, it is incumbent on this Court to identify
and reject moot claims even absent a party’s request for us
to do so.
that
And it is ascertainable from the existing record
this
moot
significance,
review.
to
is
matter,
not
while
susceptible
of
arguable
to
evading
public
judicial
While the state funding agency required the city
submit
an
explanation
if
the
project
had
not
moved
forward within two years, and reserved its right to rescind
the funding if progress was not being made, rescinding was
neither a requirement nor a foregone conclusion.4
And there
is no indication that the agency would have rescinded the
funding, rather than granting an extension because of a
pending lawsuit, had the city requested such an extension.
4
This is contrary to the majority’s assertion that a
“lapse of funding . . . happens invariably when there is
extended litigation.” Ante at 19 (emphasis added).
10
Thus, there is no sufficient showing that this case is the
sort that is “likely to recur, yet evade judicial review.”
Moreover,
it
is
worth
noting
that
in
its
grant
application, the city misrepresented that defendants had
agreed to donate the property on which the spur road would
be built.
By misrepresenting defendants’ intention, the
city became entwined in a self-created dilemma.
It had to
sue for condemnation to fulfill what it alleged was already
true,
i.e.,
community,
that
and,
at
property
had
the
time,
same
funding agency’s patience.
been
donated
avoid
by
exhausting
the
the
Rather than giving the city the
benefit of the doubt that, by virtue of a possible time
limitation, this case is likely to evade review, I would
simply
suggest
alternative
that
options
a
taking
available
entity
to
it.
has
any
For
number
of
instance,
it
could first condemn property and then apply for project
funding.
Or it could forthrightly inform the agency that
condemnation is being pursued so the agency would be aware
that the lawsuit may bear on the project’s timing.
But the
city cannot, as the majority will apparently allow, place
itself, by misrepresentation, in its present predicament
and obtain judgment on the merits where it has made no
showing that it would otherwise be continually precluded
from doing so.
11
With
respect
to
the
majority’s
statement
that
defendants have come up with no evidence that the project
is not moving forward, I would simply point the majority to
the
documentary
evidence
contained
in
the
record,
which
consists of letters discussing the funding withdrawal for
the road project.
the
statements
I believe that evidence, coupled with
made
at
oral
argument,
should
give
the
majority pause.
Because
I
believe
that
the
existing
record
demonstrates that there is no present case or controversy,
no meaningful relief to be afforded the parties, and no
showing
that
this
matter
is
likely
to
evade
judicial
review, and because the inevitable result of deciding the
claim is to shackle defendants’ ability to freely use their
land, I would decline to exercise jurisdiction and dismiss
the city’s claim as moot.
II. PUBLIC NECESSITY
Because the majority insists on addressing the merits
of this moot claim and rendering an advisory opinion that
will now control the state of the law, I find it incumbent
on me to respond to its analysis.
The majority correctly recognizes that a trial court’s
realm
of
limited
permissible
to
whether
a
inquiry
taking
12
in
a
condemnation
entity’s
decision
case
is
regarding
public necessity was based on fraud, an error of law, or an
abuse of discretion.
MCL 213.56(2).
The Court of Appeals
reviews the trial court’s determination regarding public
necessity for clear error.
City of Troy v Barnard, 183
Mich App 565, 569; 455 NW2d 378 (1990); Nelson Drainage
Dist
v
Filippis,
(1989).
174
Mich
App
400,
403;
436
NW2d
682
Likewise, this Court may only reverse a decision
of the Court of Appeals if we find the decision clearly
erroneous.
MCR
7.302(B)(5).
Thus,
it
is
our
task
to
determine whether the Court of Appeals clearly erred in
affirming the trial court’s decision.
Although the trial court concluded its written opinion
by stating that defendants “met their burden of showing
that Plaintiff City’s actions evidence a lack of public
necessity
by
fraud,
error
of
law
and/or
abuse
of
discretion,” the substance of its opinion demonstrates that
it analyzed not public necessity, but public use.
The
paragraph preceding the trial court’s conclusion summarized
the basis for its ruling:
The Court does not dispute the fact that the
project proposed by the City of Novi furthers a
benefit to the general public.
Nonetheless, the
Court is persuaded that Plaintiff City’s proposed
action will benefit a specific, identifiable
private interest and, therefore, the Court is
compelled to inspect with heightened scrutiny as
outlined by the Michigan Supreme Court in
Poletown Neighborhood Council v Detroit, 410 Mich
13
616 [304 NW2d 455] (1981).
The question thus
becomes whether the public interest is the
predominant interest being advanced; the public
benefit of which can be neither speculative nor
marginal, but clear and significant. Id. at 635.
Applying heightened scrutiny to the overwhelming
evidence before this Court, the Court finds that
the proposed industrial spur, A.E. Wisne Drive,
is primarily for the benefit of Wisne, which
benefit predominates over those to the general
public.
Thus, the trial court, despite erroneously citing the
standard of review for a public necessity challenge, found
that the city had not demonstrated that its condemnation
was for a public use.
for
the
trial
court
Having found so, it was unnecessary
to
inquire
into
public
necessity.
Likewise, the Court of Appeals focused solely on public
use.
Consequently, this Court is without the benefit of
any lower court findings on public necessity.5
Therefore,
were
this
case
not
moot,
I
would
first
agree with the majority that the Court of Appeals holding
that the taking was for a public use was clearly erroneous
for the reasons the majority states.
But I would then
remand this case to the trial court and instruct it to
address defendants’ claim that the city’s determination of
5
The fact
regarding public
at 13 n 7, does
made no findings
that the trial court based its decision
use on an erroneous legal theory, see ante
not negate the fact that the trial court
regarding public necessity.
14
public necessity was made on the basis of fraud, error of
law, or abuse of discretion.
I would not foreclose defendants’ argument regarding
fraud on the basis that defendants showed no “reliance or
injury resulting from these acts.”
Ante at 14 n 8.
A
trial court cannot accept the taking entity’s assertion of
public necessity when that assertion was fraudulently made.
The
record
shows
that
plaintiff
submitted
a
grant
application misrepresenting that defendants donated their
property
toward
the
project.
On
the
basis
misrepresentation, the state pledged the funding.
of
that
When the
state granted the funding, plaintiff then had no choice but
to
condemn
defendants’
land.
claimed
And
in
that
pursuit
the
of
the
taking
was
condemnation,
plaintiff
“necessary.”
But plaintiffs’ assertion of necessity was
not grounded in a decision that the land in question was
“reasonably
suitable
and
necessary”
for
the
project
and
that this particular piece of property, rather than some
other, was required.
See State Hwy Comm v Vanderkloot, 392
Mich 159, 176-177; 220 NW2d 416 (1974).
15
Its assertion was
made
because
plaintiff
had
to
make
good
on
its
the
amount
of
misrepresentation.6
Last,
I
deference
wholeheartedly
the
determining
property
that
is
question
majority
the
taking
whether,
with
affords
necessary.
is
disagree
of
As
to
the
a
government
particular
stated,
complete
in
piece
the
precise
the
project,
of
legal
the
government needs all the property involved or needs one
particular
piece
of
property
property.
Vanderkloot,
supra
rather
at
than
176-177.
some
other
That
review
encompasses variables such as “whether the land in question
is reasonably suitable and necessary for the ‘improvement’
and whether there is the necessity for taking particular
property rather than other property for the purposes of
accomplishing
the
‘improvement.’”
Id.
at
177-178.
Necessarily, then, there must be some factual demonstration
that would allow a court to determine whether an agency
abused its discretion in condemning a particular piece of
property.
6
Defendants need not claim that plaintiff directly
defrauded defendants. Such a task would be difficult in a
condemnation case, in which a decision regarding necessity
is presumably made before a private property owner even
knows of a looming condemnation.
Rather, a trial court
must determine whether a plaintiff’s assertion of necessity
was, in a general sense, fraudulently made.
16
With regard to public necessity, the majority’s first
analytical error is in failing to properly apply the clear
error
standard.
City
of
Drainage, supra at 403.
Troy
supra
at
569;
Nelson
Where the trial court did not
reach the issue of necessity, it is impossible to determine
whether its nonexistent findings were clearly erroneous,
despite
whether
the
parties
believe
that
the
record
is
sufficient for us to do so.7
In
its
next
analytical
error,
rather
than
actually
assessing whether the facts demonstrate that the city even
undertook a necessity analysis, the majority concludes that
even if there were other suitable locations for the spur,
the decision to take defendants’ property was not outside
the “‘principled range of outcomes.’”
Ante at 14, quoting
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
But defendants presented evidence that the city did not
examine any range of outcomes, but rather fixated on this
particular
piece
considering
condemnation.8
7
other
of
property
parcels
or
to
even
the
exclusion
of
alternatives
to
Thus, a conclusion that the city’s outcome
See also n 8 of this opinion.
8
The majority’s suggestion that one of defendants’
proposed alternatives—building the spur road on Wisne’s own
(continued…)
17
fell within an acceptable “range” is unsupportable.
The
majority’s overly deferential viewpoint permits a city to
prevail against a challenge to public necessity by simply
claiming that its taking of a particular piece of property
was,
in
fact,
necessary.
While
deference
to
a
taking
agency’s finding is certainly warranted, it cannot be said
that as long as an agency claims necessity, its decision
cannot be disturbed.
Such an approach does not venerate
the constitutional principle on which the UCPA is based: a
taking can only occur on proof that the taking was both for
a public purpose and that the taking of a particular piece
of property was truly necessary.
This
is
especially
true
here,
where
defendants
presented evidence that, during the negotiation phase, they
proffered several alternatives to taking their property.
The city refused those avenues because to be eligible for
the
funding
it
sought,
some
portion
of
the
ring
road
(…continued)
land—was unworkable because the spur still would have
exited onto Grand River is not useful to resolving the
abuse of discretion claim.
As an initial matter, without
knowing the logistical details, I would not make a factual
determination that the alternative was unworkable.
But
even if the alternative would not have sufficed, defendants
offered other alternatives as well.
Invalidating one
alternative says nothing about whether other alternatives
were available, viable, and preferable to the drastic
measure of condemnation.
18
project had to consist of a “community donation.”
The city
decided that to fulfill the community donation portion, it
would simply require defendants to unwillingly sacrifice
their land.
Thus, the city never answered the question
whether the particular piece of property was necessary for
the
purposes
welfare.
stated
in
its
complaint,
i.e.,
safety
and
Rather, it is clear only that the taking was a
“necessary” means to an end.
The majority further states that “[t]he city is not
obligated
to
show
that
its
plan
is
the
best
alternative, only that it is a reasonable one.”
15.
was
or
only
Ante at
Again, a taking agency’s mere claim that the choice
“reasonable”
is
not
conclusive.
When
defendants
challenged public necessity, they put forth evidence that
there were alternatives to taking their particular piece of
property.
Other than a road project plan that incorporated
defendants’ property, nothing in the record demonstrates
that the city chose defendants’ property in lieu of other
alternatives because other alternatives were inferior, or
because there were no available alternatives.
Thus, the
city’s assertion of public necessity is bare.
If it is
enough for the city to say that it needs a particular piece
of
property
judicial
and
review
that
of
its
choice
public
19
is
a
necessity
reasonable
is
one,
essentially
foreclosed, and an abuse of discretion could never or only
rarely be found.
Under the majority’s rationale, a necessity hearing
hardly seems meaningful.
The majority accuses my dissent
of reversing the burden of proof, but nothing could be
further from the truth.
If the city is required to do no
more than sit back and assert public necessity, what, then,
is the hearing’s purpose?
Generally, in civil matters, one
party begins with the burden of proof and must present
evidence in support of its position.
The other party must
then somehow diminish, rebut, or contest that evidence with
evidence of its own.
Only then can a trial court decide
which party should prevail under the appropriate standard.
But the majority’s position allows the following scenario.
A property owner disputes public necessity and requests a
hearing.
At that hearing, the owner puts forth evidence
that, if believed, would support his claim that the taking
of his particular parcel was not necessary.
The taking
entity rebuts the allegation not with evidence, but merely
by affirming that the taking was necessary.
Under the
novel rule of law set forth by today’s majority, the taking
entity prevails, despite the fact that it produced nothing
more than an unsupported assertion of public necessity.
20
This unquestioning ceding of power is not what was
contemplated
by
prohibitions
property.
the
against
constitutional
the
unnecessary
or
taking
statutory
of
private
Contrary to the majority’s position, a reviewing
court has an obligation to determine whether, in the face
of evidence to the contrary, the taking entity produced
evidence—not
assertions—of
necessity.
And
this
is
true
despite the fact that the burden of disproving necessity is
on the property owner.
When a trial court must determine
whether there was an abuse of discretion, defendants raise
a compelling argument that the taking entity’s failure to
use
any
discretion
at
all
is,
in
itself,
an
abuse
of
discretion.
Were this case not moot, in the complete absence of
trial court findings on necessity, I would remand for the
trial court to determine whether the city’s decision to
take defendants’ property was based on fraud, error of law,
or an abuse of discretion.
III. CONCLUSION
The doctrine of mootness should preclude this Court
from
reaching
city’s
the
appeal
merits
should
of
be
this
claim.
dismissed.
As
such,
Moreover,
the
the
majority’s public necessity analysis dilutes the power and
obligation
of
a
reviewing
court
21
to
protect
a
private
property
unchecked
necessity.
owner
from
deference
an
on
a
unlawful
taking
taking
entity’s
by
declaration
Accordingly, I dissent.
Michael F. Cavanagh
Marilyn Kelly
22
conferring
of
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