City of Detroit v. Lucas

Lucas v CITY OF DETROIT LUCAS 14, 1988, Docket No. 109107. Submitted December at Detroit. Decided 5, 1989. September appeal applied Leave to for. City development to the downtown act, planned authority project a theatre district and com- eight Wayne menced condemnation actions in the Circuit Court seeking acquire private property necessary it deemed project. parcels, including Evengellos The owners of five P. Lucas, Lucas, Calliope challenged city’s T. Lucas Peter necessity pursuant provisions claim of to the of the Uniform court, Stempien, Condemnation Procedures Act. The P. Marvin J., hearing city’s a conducted and affirmed the determination of parcels, including as to three of the five the Lucases’ parcel. twenty-first day entry On the after the date denying necessity, the court’s order their motion for review of Appeals Lucases failed file in Court of appeal granted. leave A initially Appeals. denied the Court of Appeals, upon rehearing, Court of the Lucases’ motion for granted delayed application. Appeals The Court of held: 6(6) 1. Section Uniform Procedures Condemnation Act provides that an order of a trial court determin- ing public necessity aof condemna- proceeding Appeals only by tion to the Court of 6(6) granted. Section further that an appeal. shall not be in the absence of a filed Here, the Lucases failed to file an for leave to twenty-one days within of the trial court’s order as 7.205(A). Thus, required by pre- the Lucases’ cluded under statute described and this Court has no appeal. over their Assuming appeal, had over References 2d, 146, 188, 258; Appeal Am Jur and Error Eminent Domain §§ seq. 111 et §§ Error; Appeal See the Index to Annotations under Eminent Domain. develop- provisions pertinent of the downtown review of Uniform Condemnation Procedures act the trial court Act would lead this Court to conclude correctly city its discretion determined that the did abuse determining necessity. Appeal dismissed. Beasley, P.J., the Court of dissented and would hold

Appeals jurisdiction appeal in has over the this case. — — Procedures Act Eminent Domain Uniform Condemnation Appeal. Necessity — Determination of Public determining public An of a trial court order sity proceeding of a condemnation brought pursuant the Uniform Condemnation Procedures to by granted Appeals only leave Act is to the Court timely application that Court to a for leave appealed appeal; may to the Court of such an order through Appeals for leave when an (MCL 213.56[6]; application for leave is not filed MSA 8.265[6][6]; 7.205[A]). Zausmer, Fink & P.C. Mark J. Zaus- Cooper, (by K. Williams), Avery mer and plaintiff. Wallace, E. Ryan Thomas J. and Neil for defen- dants. P.J., T. Hamm and Gillis and J.

Before: Beasley, JJ. ond,* appeal by T. J. Defendants Lucas

J. Hammond, from an application deny- delayed regarding this ing their motion to review brought plaintiff. The proceeding merit. denied for lack of initially was brought, and rehearing a motion for was surrounding delayed this during proceedings leave, to this question arose as matter. This Court jurisdiction Court’s hear parties requested then * by assignment. judge, sitting Appeals on the Court of Circuit brief the issue. We determine that this does not have in this case. This case involves Theatre District Project in Detroit planned under the downtown develop- et seq.; act 125.1651 (ddaa), MCL 5.3010(1) seq. et MSA Plaintiff eight filed condem- regard nation cases in project, and the parcels timely challenged plaintiffs owners five of necessity claim under MCL MSA 8.265(6) of the Uniform Condemnation Procedures 8.265(1) seq.; et 213.51 (ucpa), et Act seq. parcels Two of these were owned by the Lucases.

During April, hearing March re- viewing the determination held circuit court. The court findings filed its of fact 27, 1988, law on April conclusions of in which it affirmed the determination of necessity for three the five parcels, including of the Lucases’ parcels. The order the motion of denying for review sity 5, on May entered 1988. The Lucases to apparently intended the timely appeal order to Court, allegedly but arrived few minutes after the close of the on clerk’s office the twenty- day order, first after date of of entry the the and thus filed a for leave to following appeal day. 1963, 6, provides

Const art juris- § "[t]he of of appeals provided diction the court shall be law and the and practice procedure therein shall prescribed supreme be rules of the court.” 8.265(6)(6) 213.56(6); provides: Notwithstanding section 309 Act No. 236 being Public 600.309 of Acts section Laws, Compiled Michigan order of an determining public court pro- appeals only appealable to the court ceeding is general to of that court by appeal of the order In the absence of rules. court filed, granted and not be appeal an shall timely appeal appealable part as of an is not the order [Empha- just compensation. as to judgment from a sis added.] and statute is clear of the above language

The interpretation vary judicial unambiguous, precluded. the statute meaning plain 13, 16; 421 NW2d Ruberg, 167 Smith v to this orders Such leave, timely is not appeal and if the only by 7.205(A) re- MCR filed, precluded. must that an quires entry after days twenty-one filed within failed to do. or order. This judgment and, note, unique, almost specific we very statute are "quick take” of this so-called provisions was to of this statute jurisdictional. leaving am- necessity, while the issue of was done damages. This litigate time to ple one land- ploy by which to eliminate public improve- bring largest owner could halt, thereby complete to a programs from the settlements damage extort exorbitant treasury. apply The Lucases ask filing appli- 7.205(F), delayed which for leave is for leave when an cation previ- this Court has filed. a time a statute set cases where considered ously statutory determined limit for rules. Gun- court cannot be extended limitation 559, 564; 136 Mich Realty, Hill v Rose derson (1984). Arrow Bellamy v See also 357 NW2d 310, 313-315; 429 Co, 171 Mich Supply Overall Michigan As noted NW2d Opinion op the Court Constitution that the of this is established 1963, law. Const 6, art § Therefore, is without review the circuit court this case because the application for leave to appeal was not timely filed.

Even if this Court had jurisdiction, we would find the appeal First, without merit.

claim taking that violated their constitutional rights because the property transferred, is to be ultimately, private identified developer. US Const, Am 1963, V and Const art both §2 provide that private property shall not be taken public use just without compensation. dispute There is no about agree the law. All

condemnation mitted. All use or public for a purpose use or per- agree that condemnation private for a purpose is forbidden. Similarly, condemna- private tion for a use cannot be authorized what- public ever its incidental benefit and condemna- tion for a cannot be forbidden private whatever the this gain. incidental The heart of dispute proposed whether the is for the primary benefit of or the private user. Neighborhood Council v [Poletown 616, 632; 304 NW2d 455 (1981).] "public term use” has not received a narrow Id., or inelastic construction. p 630. argue Lucases the term "public use”

should given a narrow construction unless a specific statutory exception allows use, a broader and the ddaa does not provide exception. such an However, even if accepted we the narrow construc- tion argument Poletown, in light the ddaa does provide authority. 125.1660; MSA 5.3010(10) authorizes use of eminent domain by the municipality to "transfer 180 Opinion op the Court development, on approved in an for use

authority the it appropriate, conditions deems terms and transfer, considered neces- and use shall be taking, of the and for the benefit public purposes sary development of the downtown public.” The board powers, in- is broad authority expressly own, acquire, convey, the cluding authority of, property land or other when or lease dispose reasonably it the determines act, MCL purposes to achieve sary 5.3010(7)(h), develop, 125.1657(h); MSA and to long-range municipality, with cooperation of prop- halt the deterioration designed to plans in the growth economic promote values and erty 125.1657(e); district, MSA MCL downtown 5.3010(7)(e). Thus, merit. this claim without

Second, that the trial court the Lucases contend proving to them the burden improperly shifted use, public to be taken is for a property that taking is for a asserting that the fact that both are taking public necessity use and ucpa inquiries essentially apply does not standard of review claim is with- prong. use merit. out taking and remedies procedures governed by eminent domain

property by ucpa. Pier Luna 8.265(25)(1); 213.75(1); MCL MSA Landowners, 430; 438 Lake Erie 8.265(6) pro MCL NW2d can property which owners the vehicle vides acquisition challenge 213.56(2); MSA agency. governmental 8.265(6)(2) provides: acquisition by a respect to an With public necessity by agency, the determination binding in the on the court agency shall be op Opinion the Court showing fraud, law,

absence of abuse of discretion. error of challenging agency’s In determination of neces- sity, proof owners bear the burden showing public necessity, lack of either fraud, law, error of or abuse of Kent discretion. Co Hunting, Rd Comm 170 Mich 229-230; separate 428 NW2d 353 No other statute ucpa under the for a determina- wording Further, tion of use. the clear of specifies proof the above statute the burden of regarding "public necessity.” the determination of change proof, Poletown did not the burden of but heightened scrutiny did advance a test to the predominant claim that interest is the being pp supra, interest Poletown, advanced. 634- Third, the Lucases claim that the trial court’s determination of was an abuse of discre- developer plan tion because the had no definite for property’s use, and there is no evidence that project would not continue without condemna- property. tion of this As noted proof showing bear the burden of a lack public necessity because of the claimed abuse of Hunting, supra. discretion. Under the "the ddaa, taking, transfer, and use shall be considered neces- sary public purposes and for the benefit of the 5.3010(10). public.” As the testimony showed, trial court’s review parcels bridge Lucases’ two were an essential be- properties, tween the historic two theatre plan city called for the construction structure to house retail transition re- businesses adjacent to, between, lated theatres. the two court did find that there was no to and trial par- two condemnation of other by Beasley, P.J. Dissent along parcels, cels street. Lucases’ across very parcel, at center are with another pattern planned be- traffic social and economic plan two Minute details of tween the theaters. Thus, this on record before need not be shown. Court, has been shown. no abuse of discretion jurisdiction. is dismissed lack This J., Gillis, concurred. (dissenting). P.J. I

Beasley, respectfully dissent. question whether de- has been a serious There fendants-appellants did, fact, their Lucases in file limit. defendants the time Whether within closing appeal by time on in filed their fact day whether, or, not, if under last peculiar case, were enti- facts this defendants delayed appeal, questions that should tled to a favor. be resolved defendants’ City join plaintiff-appellee, I am not inclined unseemly deprive defen- Detroit, in effort to right merits. to an on the dants of their pri- plaintiff city acquired issue, has This where vate private entity private

turning it over to a airing. purposes, appellate a full is entitled to enter- I find have would that we it on the merits. tain and would decide any purpose in However, I do this dissent not see Neigh- discussion of Poletown further extended 410 Council v 616; 304 borhood NW2d will, Supreme Hopefully, accept challenge course, to reex- in due decision. basis for the Poletown amine the

Case Details

Case Name: City of Detroit v. Lucas

Court Name: Michigan Court of Appeals

Date Published: Sep 5, 1989

Citation: 446 N.W.2d 596

Docket Number: Docket 109107

Court Abbreviation: Mich. Ct. App.