MAP's Takings Policy

The Michigan Association of Planning’s Board of Directors on October 5, 2005 adopted a Takings Policy. The MAP policy statement addresses what has emerged as one of the most controversial and emotional land use issues of the day--the ability of local government to take private property through the use of eminent domain. Michigan’s legislature has responded in similar fashion to other state legislatures, and several bills, introduced in both the house and the senate, seek to reduce the ability of municipalities to use eminent domain. Most recently, (introduced by Rep Palmer on October 18, 2005) House Joint Resolution Q seeks to create a right of compensation for land use regulations. Other bills recently introduced include House Bill 5060, introduced by Rep Steil on July 20, and Senate Bill 693, introduced on August 31 by Senator Brown, which state that the taking of private property is not considered a public use if it is transferred to private ownership. Senate Joint Resolution E was introduced on August 31, 2005 by Senator Stamos, and is identical to HB 5060. The recent U.S. Supreme Court opinion in Kelo v. City of New London upheld the authority of cities to exercise the power of eminent domain to promote economic development by recognizing economic development as a “public use.” In their opinion, the Supreme Court also stated that “we emphasize that nothing in our opinion precludes any state from placing further restriction on its exercise of the takings power.” As a result, state legislatures and commissions all over the country have done just that by initiating legislation to define, limit, and in some cases, prohibit outright use of eminent domain. The MAP Board, in consultation with the MAP Leadership Council, asked the Government Relations Committee to develop a policy that would reflect Michigan’s current law as it relates to the use of eminent domain for urban redevelopment. The Board also wanted a policy that would recognize the importance of conditioning the exercise of this power on a comprehensive, publicly supported, land use plan. The policy adopted by the MAP Board draws from the balanced approach stated in the Michigan Supreme Court’s most recent opinion in Hathcock v Wayne County. In that decision, the Court overturned their previous ruling on Poletown v. City of Detroit and narrowed the circumstances under which private property could be taken for economic development. In essence, the MAP policy reiterates our strong support for the protection of property rights as well as the constitutional exercise of eminent domain for traditional “public use” purposes, including and particularly, the eradication of blight. Unlike Kelo, the MAP policy does not support taking private property and transferring it to another private party solely for the purpose of economic development. The MAP policy also conditions the use of eminent domain upon it achieving the objectives of a comprehensive land use plan, and only if all other reasonable and less egregious measures have been exhausted. The board anticipates that legislation will soon be introduced that would limit or prohibit outright the ability of local governments to condemn blighted properties for the purpose of urban redevelopment. It is also possible that we will see legislation introduced, similar to Oregon’s Measure 37, that would require governments to compensate property owners for any diminution in the use of their property, such as through local zoning or environmental regulations. The Government Relations Committee is responding by crafting a MAP policy on regulatory takings. Either approach to the takings issue or eminent domain would be detrimental to our members’ efforts to reinvigorate aging urban areas. The policy statement and guide developed by the Government Relations Committee will assist us as we work with the legislature and frame the lens through which we analyze the impacts of proposed legislation. Hopefully, this policy will help MAP shape a more informed debate on the Kelo decision and help preserve eminent domain for what it can be--an important urban redevelopment tool. The ad hoc committee of the Government Relations Committee that deserves special recognition includes: Dick Norton, Rick Hills, Bob McMahon, and Jim Tischler.