WAYNE COUNTY V EDWARD HATHCOCK
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STATE OF MICHIGAN
COURT OF APPEALS
______________________________________
COUNTY OF WAYNE,
UNPUBLISHED
April 24, 2003
Plaintiff-Appellee,
v
No. 239438
Wayne Circuit Court
LC No. 01-113583-CC
EDWARD HATHCOCK,
Defendant-Appellant.
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v
No. 239563
Wayne Circuit Court
LC No. 01-114120-CC
AARON T. SPECK and DONALD E. SPECK,
Defendants-Appellants.
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v
AUBINS SERVICE, INC. and DAVID R. YORK,
Trustee of the DAVID R. YORK REVOCABLE
LIVING TRUST,
Defendants-Appellants.
______________________________________
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No. 240184
Wayne Circuit Court
LC No. 01-113584-CC
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v
No. 240187
Wayne Circuit Court
LC No. 01-113587-CC
JEFFREY J. KOMISAR,
Defendant-Appellant.
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v
No. 240189
Wayne Circuit Court
LC No. 01-114113-CC
ROBERT WARD and LELA WARD,
Defendants-Appellants,
and
HENRY Y. COOLEY,
Defendant.
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v
No. 240190
Wayne Circuit Court
LC No. 01-114115-CC
MRS. JAMES GRIZZLE and
MICHELLE A. BALDWIN,
Defendants-Appellants,
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and
RAMI FAKHOURY,
Defendant.
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
No. 240193
Wayne Circuit Court
LC No. 01-114122-CC
v
STEPHANIE A. KOMISAR,
Defendant-Appellant.
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
No. 240194
Wayne Circuit Court
LC No. 01-114123-CC
v
THOMAS L. GOFF, NORMA GOFF,
MARK A. BARKER, JR., and
KATHLEEN A. BARKER,
Defendants-Appellants.
______________________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
No. 240195
Wayne Circuit Court
LC No. 01-114124-CC
v
VINCENT FINAZZO,
Defendant-Appellant,
and
AUBREY L. GREGORY and DULCINA
GREGORY,
Defendants.
-3-
______________________________________
Before: O’Connell, P.J., and Fitzgerald and Murray, JJ.
MURRAY, J. (concurring).
I concur in the reasoning and result of the Court’s opinion because I believe that it is
compelled by the binding precedent which we are required to apply to the facts as found by the
trial court. See People v Kevorkian, 205 Mich App 180, 191; 517 NW2d 293, vacated on other
grounds, 497 Mich 436; 527 NW2d 714 (1994) (recognizing that this Court must follow
Supreme Court precedent until it is overturned by that Court). I write separately, however,
because I believe with all due respect, as have other panels of this Court,1 that the Supreme
Court’s decision in Poletown Neighborhood Council v Detroit, 410 Mich 616; 304 NW2d 455
(1981) was wrongly decided with respect to its constitutional determination that the power of
eminent domain can be utilized to take private property and convey it for the use of other private
entities in the name of improving the economy. In Poletown, Justices Fitzgerald and Ryan
submitted dissenting opinions outlining the procedural irregularities and substantive errors in the
majority opinion. See Poletown, supra, 410 Mich at 636-645 (Fitzgerald, J., dissenting) and at
645-684 (Ryan, J., dissenting). Although both of these dissenting opinions more than adequately
explain why the Poletown majority’s decision is flawed and out of step with prior Supreme Court
precedent, Justice Ryan’s dissent in particular delineates in great detail and precision why the
majority opinion was wrongly decided.
Setting aside Justice Ryan’s discussion of how the Poletown majority blurred the
previously bright distinction in the case law between what constitutes a “public purpose” for tax
purposes and a “public use” for condemnation purposes, see Novi v Robert Adell Children’s
Funded Trust, 253 Mich App 330, 342; ___ NW2d ___ (2002), Justice Ryan set forth the clear
line of authority in existence prior to Poletown which had held that the government cannot
constitutionally exercise its power of eminent domain by taking land for the ultimate conveyance
to a private corporation despite incidental economic benefits to the public:
As a general rule, when the object of eminent domain is to take land for ultimate
conveyance to a private corporation to use as it sees fit, the State Constitution will
forbid it as a taking for private use.
“Land cannot be taken, under the exercise of the power of
eminent domain, unless, after it is taken, it will be devoted to the
use of the public, independent of the will of the corporation taking
it.” Berrien Springs Water-Power Co v Berrien Circuit Judge, 133
Mich 48, 53; 94 NW 379 (1903).
1
See Detroit v Vavro, 177 Mich App 682, 685-687; 442 NW2d 730 (1989). See also Detroit v
Lucas, 180 Mich App 47, 54; 446 NW2d 596 (1989) (Beasley, P.J., dissenting, indicating that
“[h]opefully, the Supreme Court will, in due course, accept the challenge to reexamine the basis
for the Poletown decision”).
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Accordingly, land may not be condemned for private corporations engaged in the
business of water-power mills, Ryerson v Brown, 35 Mich 333 (1877); cemeteries,
Board of Health v Van Hoesen, 87 Mich 533; 49 NW 894 (1891); or general
retail, Shizas v Detroit, 333 Mich 44; 52 NW2d 589 (1952). [Id. at 670.]
The Poletown decision was, therefore, the first Michigan case to hold that economic
benefits emanating from future private developments was a valid exercise of eminent domain
despite the land being granted to a private entity. However, as both the majority and dissenting
opinions in Poletown make clear, that case was based upon the extreme economic and political
circumstances faced by the city of Detroit during that specific time period. See id. at 633
(majority noting the “severe economic conditions facing the residents”) and at 647 (Justice Ryan
noting case arose in the context of an “economic crisis”). When Poletown was decided
unemployment statewide was at 14.2%, the city of Detroit was at 18%, and amongst AfricanAmerican residents of the city, it was almost 30%. Id. at 647. Moreover, General Motors was
threatening to close and move one of its plants outside the city which would result in the loss of
some 6,000 additional jobs within the city. Id. at 650-651. It was under these drastic economic
circumstances that the Court held that the city’s taking of private land for use by a specific
private entity (General Motors) was for a “public use or purpose,” and only had an incidental
benefit to private persons (GM) because it would preserve the 6,000 General Motor jobs and tax
base that would otherwise have allegedly left the city. Id. at 634.
However, as Justice Ryan pointed out, the Court’s “approval of the use of eminent
domain power in this case [took] this state into a new realm of takings of private property; there
[was] simply no precedent for this decision in previous Michigan cases.” Id. at 639-640.
Continuing, Justice Ryan noted that although “[t]here were several early cases in which there
was an attempt to transfer property from one private owner to another through the condemnation
power pursuant to express statutory authority,” the Court had previously rejected such proposed
takings as unconstitutional. Id. at 640. Nonetheless, the Poletown majority held as it did, and we
are duty bound to apply its holding and rationale to this case. Kevorkian, supra; Adell Trust,
supra at 343.
However, I believe that this case represents the concerns that Justices Fitzgerald and
Ryan had with respect to the jurisprudential impacts of the Poletown decision. Id. at 645.
Specifically, unlike in Poletown, in this case there is no abnormally high unemployment rates as
there were at the time Poletown was decided; nor was there a major employer threatening to
leave the confines of Wayne County, as there was in Poletown. In other words, there is no
evidence in the record to establish that there exists any “economic crisis” in Wayne County
which would make this case an “exceptional one” like Poletown. Instead, plaintiff has simply
decided to create a commercial/industrial park on the basis that it would improve the overall
appeal of the county and eventually raise the tax and employment base for the county. Although
that is certainly a laudable goal, in my view the precedent established by our Supreme Court
prior to its Poletown decision would have precluded it on constitutional grounds.2
2
It is evident that the Legislature deems certain industrial and commercial developments
necessary and that private property can be condemned for this public use by an economic
development corporation. MCL 125.1601; 125.1622. However, the county did not act pursuant
(continued…)
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In light of the foregoing, I agree with our Court’s prior decision in Vavro, as well as
Judge Beasley’s dissent in Lucas, that our Supreme Court should revisit its holding in Poletown
as it is an isolated statement based upon exceptional circumstances, which cannot be squared
with long standing precedent established in almost a century of case law prior thereto.3
/s/ Christopher M. Murray
(…continued)
to such specific statutory authority, but instead acted only pursuant to its resolution. Hence, the
“heightened scrutiny” given to such general resolutions is applicable to this case. Center Line v
Chmelko, 164 Mich App 251, 257-262; 416 NW2d 401 (1987).
3
Poletown was cited with approval as recently as Tolksdorf v Griffith, 464 Mich 1, 8-9; 626
NW2d 163 (2001). However, that case involved the validity of a taking under the private roads
act. Id. at 5. Hence, Tolksdorf did not involve an analysis of whether economic benefits
constitutionally validates the exercise of eminent domain over private property for the benefit of
private economic development.
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