*1
vision’s contractual of and the telecommunications, rapid technological ap- advances in it is parent primary beneficiary that the is the of the con- demnation. (1992) App 551; NW2d affirmed. City Attorney, Knot, Dickinson, Alvan P. Wright, (by Moon, Van Dusen & Freeman Gregory Jeffery Stuckey), L. McClelland and V. (by and Latterman & Associates Mark A. Latter- man), Lansing. City Story (by
Farhat, Kraus, & PC. C. Richard Kraus), (by and Winston & Strawn Deborah C. Costlow), for the defendants.
Amici Curiae: (by
Miller, Canñeld, Paddock & Stone Michael J. 442 Mich Opinion Flood) Hodge, Atkins, T. Clifford R. Michael League. Michigan Municipal for McDermott) (by John J. & Hannan O'Connor Apartment Association. the National In case are asked to review Riley, J. this we providing access to grantee property by franchise provision hold television We for the ordinance to be authority services. beyond the
unreasonable and to exercise the eminent domain.
i April entered into a agreement Cablevision, with Continental franchise Inc., right Lansing. *3 providing Continental with nonexclusive operate system in the its cable agreement several
This was amended year currently in effect until times and 2004. Among requirements, Continental other designated agreed channels, nine access system, emergency service, override universal an gross pay percent of its revenues as three city, retaining percent 0.35 franchise fee funding community gross cable its revenues services. apartment complexes, own two Waverly
Defendants Rose August Trappers 1980, Park. In Cove and pri- predecessors in interest entered into Rose’s providing agreement Conti- with Continental vate right to install and nental with the exclusive properties. system operate its cable agreement provided amendment, modification, agreed writing by to in both if or cancellation parties, obligations fights and established Edward Rose Opinion of the Court upon 23, parties December termination. On gave an intention notice of 1986, Continental Rose expiration upon on the contract not to renew Continental 30, also informed 1987.1Rose June system, a cable to install intention an system” television antenna master "satellite provide comparable cable which would (smatv), apartment complexes. tenants of the to the service pro- 1987, Continental submitted In March prohibit city posed an that would ordinance dwelling multiple-unit from residential of a owner interfering receive cable choice to with a tenant’s 1, June franchisee. On from the service providing: adopted city 753, 1987, owner, representative of the owner agent or No prohibit indirectly dwelling directly or any shall receiving dwelling any resident of such installation, maintenance and ser- communication under a valid operating vices from a Grantee City. franchise issued by the franchised cable If an owner refused city upon request service, of the franchisee proceedings. commence condemnation could responsible for indemnification franchisee city. expenses Id. incurred and costs all access to it refuse indicated that would agreement, upon expiration of their Continental requested 1987, on June proceedings. On condemnation commence passed August resolution 31, 1987, council providing council deemed no. *4 Trappers Cover service to "multi-channel catv public interest, Waverly to in the Park [sic] and public public and a use constitute both and to 30, September agreement until was extended service The cable 1987. 442 Mich Opinion of the Court the of ordinance Pursuant to purpose.” to 753, appraiser to an the resolved retain property of the fair-market value Rose’s determine Continental, to pur to make an offer occupied by to steps necessary to property, the and take chase the On property.2 the November acquire 557, confirming resolution no. passed council 446 that service finding Resolution "its Cablevision, as a licensed provided franchisee, and Wav Trappers to residents Cove interest, Park, in the and constitutes public erly use, and a neces purpose, city attor 557 also authorized the Resolution sity.” pursu steps acquire property to to Rose’s take ney Act, Condemnation Procedures to Uniform ant 8.265(1) et seq.; seq., 213.51 et including MSA MCL or, from Rose offering purchase property to regarding purchase, filing failing agreement an the court to "ascertain complaint asking paid to be just compensation determine Property.” of the acquisition agree Following inability parties 3, 1988, filed on two purchase, March its an- for condemnation. filed complaints defenses, as well as motions swers affirmative 213.56(1); pursuant to MCL necessity to review 8.265(6)(1). consolidated, were MSA The two cases Resolution no. 446 indicated that multichannel catv services Trappers Waverly Cove would: Park and encourage growth development sys- . . 2. . systems responsive
tems and that cable are needs assure residents; and its and interests provides . . . and is encour- assure Continental Cable diversity aged possible information the widest including informing sources and services to local, operation government; state and federal promote competition 4. . . . in cable communications unnecessary might impose regulation will or an minimize undue economic burden on cable systems .... *5 631 v Edward Opinion of the Court the neces- considering proceeded trial and a bench taking. proposed sity motions to review denied Rose’s
The trial court of the condemna- validity upheld necessity impaneled to After was jury proceedings. tion application Rose’s compensation, just determine was Appeals Court of appeal for leave court were in the trial proceedings and all granted judg- reversed the Appeals The Court stayed. court, con- finding proposed the trial ment of to take the city’s exceeded demnation domain. The through eminent private property primary beneficiary "the concluded that Court Continen- but rather taking public, is not the 551, 557; 481 App 192 Mich tal Cablevision.” (1992). Further, "the condem- 795 NW2d entity to use attempt by private is an nation it could not acquire what taking powers defen- length negotiations with through arm’s get Id. at 558. dants.” appeal to this for leave application
The city’s
4, 1992.3
granted
on November
ii
in this case
posed
question
Resolution
state and federal
we turn first to our
requires
that
constitutions, mandating
property
just
use without
taken for
shall not be
Const,
art
US
Const
compensation.
§
Am
inherent
has no
municipality
Because a
V.
benefit
even for
property
to condemn
power
must
use,4
of eminent
domain
or
municipality
upon
conferred
specifically
Kalamazoo v Law, 21.11, p Libonati, 21-26. & Local Government Sands Opinion of the Court constitution, impli by necessary or
statute
delegated authority.5
cation
this action for condemna-
commenced
Pro-
to the Uniform Condemnation
pursuant
tion
8.265(6), to
Act,
213.56; MSA
secure
MCL
cedures
prop-
of Rose’s
portion
for use
Cable
*6
operation
for
of Continental
required
erty
However,
upon
the
does not confer
ucpa
services.
domain,
of
but
rather
power
eminent
city
acquisition
property
of
"provides standards
of
the conduct
condemnation
ac-
agency,
an
tions,
just compensa-
of
and the determination
8.265(2X1).
213.52(1);
Hence in
MCL
MSA
tion.”
procedures
employ
order
ucpa,
power
its
of emi-
must be authorized
exercise
or constitutional
dele-
statutory
nent domain
case,
instant
power.
of such
In the
gation
pur-
Rose’s
property
asserts
condemn
applicable
acquisi-
to a
general
statute
suant
agencies
public corporations
tions
state
seq.;
cities act. MCL 117.1 et
MSA
the home rule
seq.
5.2071 et
213.23; MSA 8.13
provides:
MCL
,
corporation
agency is
Any public
or
state
.
private property necessary for a
to take
authorized
public improvement
incorporation
scope
its
purposes
or for the
public purposes
for
or
within
for the use or benefit of
prosecute proceedings
institute and
public and to
purpose.
com-
corporation
agency6 may
A
or state
5
governments
powers "expressly
have
limited
conferred
Local
Michigan, by
upon
acts of
them
Constitution of the State of
Gibson,
necessarily implied
Legislature, or
therefrom.” Crain v
(1977), citing
Co,
200;
Wayne
App
Alan v
Mich
NW2d 792
(1972).
Sinas,
supra
also
n 4
at
388 Mich
200 NW2d
See
Co,
28, 32;
Detroit,
(1929);
R
re
& M
NW
In
Detroit
G H
Judge,
446, 451;
Mich
Each (2) . . . condemnation acquisition by For any ... use private property ... powers, whether scope of its within or not. specifically mentioned herein construed. liberally rule act The home grant of Although not a 1963, art Const §34.8 a framework provides rule act the home authority, *7 mu by actions a Court reviews which this within nicipal corporation.9 prop- to condemn authorized of its scope the use within public for
erty
any
however,
statutes,
do
enabling
The cited
powers.
pres-
in the
takings
the
authorize
specifically
not
management
agencies
corporations
and
for the
made
commissions
control of
"all
agencies
property
include
. .
.
State
business and
boards,
agencies
the state
unincorporated
of
commissions and
management
business
given by
and control of
law
213.21;
property.”
MSA 8.11.
MCL
7
charter,
addresses the establishment
In 8-403 of its
§
by
property
acquisition
of real
procedures
city as a home
1-202 establish the
1-201 and
Sections
condemnation.
general powers.
rule
and set forth
8
(1955);
Detroit,
566;
Inch
Mikelsavage
erty.16 persuaded, however, that are not We interpretation applica judicial of those statutes is present to case. ble Jersey Chancery determined New mandating purpose of access the state law
that to prevent multiple-dwelling units was to landown- charging excessively desire tenants who ers Cablevision, cable Princeton franchised services. Super Valley Corp, 257; 478 Inc v Union 195 NJ (1983). present case, does A2d 1234 not assert was In the purpose .of conduct that a discriminatory protect Rose’s tenants from gouging by Rose the ten- rates ants with Rose or that regard previous franchised cable ser- or services. vices its current smatv supreme again York, court, con New legislative enactment, re fronted a state with articulating viewed the state statute purposes Lor television. to be furthered cable Corp, Teleprompter 53 320 Manhattan CATV etto NY2d 843; 423 124, 139-140; 440 NE2d NYS2d (1981). 17 The court determined that the tenant’s right communications, to receive educational community aspects the assurance and maximum promotion catv, penetration by systems, cable supported rapid development,
of its light previous mandatory access statute imposed by land "onerous fees and conditions” systems that inhibited lords on franchised cable systems. Id. at franchised 141. 48:5A-49; 43-1844.1; 238.23; Ann NJ Stat Ann DC Code Minn Stat NY, Law, Although providing 828. for listed as § Executive access, mandatory simply piggybacking allows Delaware’s statute Code, companies by public utilities. tit on easements used Del cable 26, prohibits discriminatory requirements Virginia for rent cable, mandatory but does not for tenants who choose access have operators. Code 55-248.13:2. cable Va provide just compensa- This decision was reversed failure Teleprompter taking private property Loretto v tion Corp, L Ed 2d 868 US 102 S Ct Manhattan CATV v Edward Opinion op the Court Michigan Legislature has not enunciated as city-franchised general public operators all rental have regulation properties. of the There is no extensive legislative pronouncement industry any services as in of franchised cable benefits Jersey.18 Because the York and New New passed express delega 753 without an authority by may state, we review the tion of public purpose. Judicial deference asserted *10 public legislative granted state determinations employed reviewing similarly when use19 is purpose public made a mu determinations enabling general nicipality pursuant broad, stat bearing Thus, the actions utes. we scrutinize affect all mu in mind that a state statute would nicipalities Michigan compa in and several nies, 753 is directed toward and while ordinance single private entity, a Continental. would benefit Neighborhood Detroit, Council v In Poletown (1981), 616, 629; this 410 Mich 304 NW2d proposed taking a a that benefited Court addressed private entity. precise was: The issue considered power the of eminent municipality Can a use Develop- granted to it the Economic domain Act, seq.; 125.1601 et Corporations ment MCL 5.3520(1) seq., property for et to condemn MSA . . . private corporation transfer ?_ Law, 48:5A-2; NY, 811. Stat Ann Executive See NJ (1954); Parker, 98; 26; L Ed 27 348 US 75 S Ct Berman v See Midkiff, 2321; Housing Authority 81 L 467 US 104 S Ct Hawaii Poletown, (1984); supra. n 12 Ed 2d 186 purpose may legislative determinations While state Bermem, actions, supra "well-nigh judicial at conclusive” "spec- legislative authority acting specific must municipality ify definitely without appropriation” that its to show the of the 439, 447; Vester, authority. 281 US Cincinnati v conduct is within 50 S Ct proposed that the Mere statements 74 L Ed furthers a use is not conclusive. action Opinion op the Court the the "whether dispute
The "heart” was condemnation primary for the ben proposed [was] the Id. private efit the user.” at whether the of this Court to review role the public benefit of project primary was limited, of three circum was because mainly 1) Legislature had determined stances: proposed by conduct government 2) public purpose,” Legis served "an essential delegated municipalities lature expressly proposed project to determine if a consti 3) purpose,20 tuted followed en procedures legislative all established held Id. at 632-633. then abling statute. project valid exercise proposed 1) domain, finding: of eminent city’s power signifi was clear and municipality benefit 2) cant, legitimate was an intended and project 3) the to under Legislature, object expressly delegated take the action was 4) benefit predom the municipality, received inated over the benefit private party at 634. Because a would party. Id. eminent city’s proposed project, benefit from the *11 proper would not be without substantial domain proof primary would be the benefi Id. ciary project of the Where "benefits project. interests,” the as specific private and identifiable interest predominant sertion of a will "heightened by examined with scruti Id. at 634-635. ny.” speculative cannot be
Such benefit it marginal to the significant but must be clear and if is legitimate purpose by as stated be within Legislature. at [Id. 635.] 5.3520(10)(2). 125.1610(2); MSA MCL v Edward Rose Opinion of the Court proposed government Hence, where a action con- private interest, fers a on benefit unless that merely reviewing incidental, benefit is court will inspect heightened scrutiny with the assertion governmental entity public purpose. of a present case, above,
In the as discussed there is Legislature city’s no determination proposed that the public purpose. action serves an essential Legislature delegate did not to the private property to condemn providing mandatory city-franchised access Although system. cable ship will retain owner through it easement to obtain condemnation, Continental will receive more than an incidental benefit. The easement will not merely public, education, access for government emergency (peg) channels or an over ride, but will allow Continental to offer its full apartm panoply of services to the of Rose’s tenants ents.21 Continental could receive substantial reve through subscription payments nue and increased system. market value of its overall therefore We heightened apply scrutiny assertion predominant that a interest because "specific and identifiable” interest will be benefited city’s proposed Finally, explained action. as below, the asserted benefit is not significant, predominate clear and and does not specific over the interest identifiable Continental. requirements asserts that peg emergency
channels, service, universal over proposed by provided The ordinance dwelling only multiple passed, to' units. As requires any "dwelling.” "dwelling” access to A limited to multiple dwelling including, units and is defined in ordinance 753 as to, townhouses, "buildings, cooperatives, apartments, not limited but parks.” condominiums and mobile home *12 442 Mich 626
640
Opinion op the Court
public
support
use.22
of
We
determination
ride
Appeals
agree
Court of
with the conclusion
requirement
not,
is
in
of universal service
that
App
public purpose.
556.
itself,
of
and
If
purpose,
not further a
the service does
provision
of
service does
that
then universal
public purpose.
Furthermore,
Id.
advance
requirement
primarily a re
universal service
preclud
operator,
cable
straint on
franchised
poorer
refusing
ing
company
from
service
provision
enabling
an
Id. It is not
communities.
authorizing
operator
to demand access
dwelling
every
despite
for such
the owner’s desire
agree
also
the conclusion
service. We
with
Appeals
emergency
of
that
override
Court
capacity
duplicative
largely
commer
of
of catv
support
of an
and does not
invasion
cial stations
private property. Id.23
owner’s
dispute
channels can
We do not
that
peg
political
benefits.
with
and educational
Congress
government
fact,
has
declared
ensuring
the continu
has a substantial
interest
origination
availability
local
ation and
of both
programming
educa
and local noncommercial
Despite
these clear statements
tional stations.24
pro
recognizing
policy
benefits
22
position
support
of its
several cases
also advances
judicial
legislative
requiring
determinations
deference
ante,
plainly distinguishable
pp
are
use. See
the
635-637.
cases
only
just compensa
present
issue involved
case either because the
tion, Loretto,
legislature
supra,
US
the state
had
or because
extensively
catv,
and had
determined the
regulated
use
benefit
Loretto,
taking
require
private property
access.
124;
Improvement
supra,
Ass’n v Multimedia
53 NY2d
Lake Louise
Inc,
Lawn,
App
Ill
3d
beneficiary this is Continen public. tal, user, not the presents pub 753 no definition of the Ordinance purpose requiring allegedly lic served access operator. 446 in its franchised cable Resolution purposes: encourage cludes three asserted growth, development, responsiveness of Conti encourage provision by nental; Continental of possible diversity information; the widest and to promote competition unnecessary and minimize regulation might impose undue economic bur system.26 light In dens on the cable of Continen private interest, tal’s extensive we find these as serted rationales for access to Rose’s may broadcasting required Rose’s tenants still utilize the services agreement provided by in the franchise to be Continental for use city residents. Act, purposes Identical reasons are cited as of the federal Cable that, considered, although 47 USC 521. It is instructive to note here mandatory provision access was not included in the Cable Act. 1984, Congress stated that one of the Cable Communica- Policy promote competition industry. tions Act towas in the cable See 521(6). high 47 USC Because of continued concentration in the cable industry, Act of 1992 alternative sources of Competition the Cable Television Consumer Protection and again encourage competition addressed need to instance, 2(a)(2) programming. For act, findings policy, Congress states: reasons, variety including franchising require- For a local extraordinary expense constructing ments and the than one cable television more system particular geo- to serve a area,
graphic opportu- most cable television subscribers have no nity presence competing systems. to select between cable Without the programming another multichannel video distribu- tor, system competition. no faces local The result is power operator compared undue market for the cable as to that programmers. of consumers and video Therefore, purposes one of the of the 1992 act is to "ensure that cable operators television do not have undue market vis-á-vis video 2(b)(5). programmers and consumers.” Id. at § Mich op Opinion
properties Rose’s overcome to be insufficient private property.27 right to exclude others regarding explanation how manda- no There is complexes apartment tory to Rose’s two responsive- growth, development, encourages encourages Continental, or how such access ness of possible diver- the widest Continental sity pro- that a Mere statements of information. posed are benefit action furthers Vester, 281 US Cincinnati v conclusive. 360; 74 Ed 950
50 S Ct
L
persuasive
argument
that ordinance
*14
industry.
competition in the cable
will not increase
allowing
to initiate condemna
While
Continental
any
proceedings
cable access to
tion
to secure
corollary rights
dwelling
Lansing, no
are
in
systems.
granted
be
Continental will
other cable
compete
private
guaranteed
ability to
with
compete,
systems
to
where it decides
without
cable
guaranteed
competition
equivalent right
to
an
private systems.
dwellings pursu
private
to
Access
only by
753 is enforceable
ant
to ordinance
operator.28
city,
Rose,
Neither
franchised cable
proceed
initiate
nor tenants could
condemnation
competition
systems.
ings
of cable
More
to ensure
cable
over,
has entered into exclusive
ninety percent
in
of its contracts
contracts
service
systems
Lansing.
private
if
were allowed
in
Even
27 component
property rights
right
is the
to
A
owner’s
Georgia,
Loretto, supra,
Holdings
exclude others.
US
Cable
(CA
VI, Ltd,
600,
11,
F2d
Inc v
Real Estate Fund
McNeil
1992).
McNeil,
supra,
mandatory
n 27
The landowner
asserted
company
anticompetitive.
by
be
franchised
would
access
cable
companies
competitive
cable
would be at a
disadvan-
Nonfranchised
tage
by
right
only
of access was enforceable
the fran-
because
although
operators.
they
at
cable
Id.
607. The court noted that
chised
issue,
the federal Cable Act did not create
not reach that
even
would
such an
608,
regime.”
"unequal
Id. at
n
Edward
v
op
Opinion
the Court
to
is al
compete, ninety percent
market
by
secured
Continental.29
ready
action would
Finally,
regulate
ca
Michigan
ble
limits
beyond
services
established
government.
Act,
or
In the 1992
the federal
Cable
Congress
provisions
regulating
amended
several
industry. Although
cable
access
mandatory
provision
contemplated,
was
it was deleted before
Act
Cable
was enacted. Such
deletion is
Congress’
evidence of
intent not
provide
Inc
Holdings
Georgia,
Cable
access.
mandatory
VI, Ltd,
Real
Fund
McNeil
Estate
F2d
(CA
1992).
it
provision
as
considered,
equivalent
if
were provided by
services
owner,
an
access
franchised
not re
catv was
quired. The
owner had the choice either
comparable
services
subject
access
operator.30
franchised
city’s proposed
require
conduct
manda-
tory
operator,
its franchised cable
Conti-
nental,
private property
onto Rose’s
not re-
does
legislative
sult
from a
pronouncement
state
public purpose, nor has the Legislature
specifically
delegated
municipalities
to under-
*15
Rather,
take
proposed
the actions
the
city.
the
city enacted
resolutions
and 557 on the basis
general
of its own
assertion that mandatory access
by its
a
only
public
franchisee
furthers
purpose.
29Furthermore,
valid,
if
ordinance
were held to be
all of
mandatory
provision.
Continental’s contracts would violate the
Assuming
system
another cable
could enter
market because the
granted
Continental,
has
a
if
nonexclusive franchise
such a
franchise,
system
granted
a
it
were
would be entitled to
dwellings,
access to all
contracts.
even those
which Continental has exclusive
Michigan Legislature
provisions regarding
30 The
has enacted no
regulation
public
of access
to catv.
The interest. private nental, and identifiable specific to Continental that this benefit persuaded We are benefits. public the asserted over predominates in- are therefore resolutions would because as unreasonable valid Hence, pro- beneficiary. primary not be the is beyond posed conduct domain. power of eminent exercise affirmed. Appeals is of the Court The decision Brickley, Boyle, Cavanagh, C.J., Levin, Riley, Griffin, JJ., with J. concurred concludes (dissenting). majority J. Mat.lf.tt, "predomi to Continental private benefit benefits,”1 the asserted nates over therefore and resolutions are the "ordinance[s] because would invalid as unreasonable disagree. primary beneficiary.”2 I Detroit, Neighborhood Council In Poletown (1981), this 616, 632; 304 NW2d Mich guidelines for deter- stated succinctly condemnation mining particular whether eminent city’s power scope within the domain. use or agree All that condemnation agree permitted. that condemnation
purpose is All purpose is Simi- private for a larly, use or forbidden. private for a use cannot be condemnation public benefit authorized whatever its incidental public purpose cannot be and condemnation private gain. whatever the incidental forbidden dispute of this The heart whether primary condemnation is for the benefit or the user. at Ante [2] Id. *16 Lansing v Edward Rose Dissenting Opinion Mallett, J. majority
The that the benefit of concludes outweigh pri- cable television service fails to upon vate Cable- benefit conferred Continental However, vision. when the benefits of cable service light are obligations of Continental’s considered contractual Lansing City techno- and the logical occurring rapidly in telecommuni- advances apparent cations, it that the is the becomes primary beneficiary of the condemnation. Lansing that Continental established
provides variety satellite services Rose’s system provide.” major- cannot, not, "does and ity give fails to due breadth consideration through public, services offered educational, the broadcast governmental and channels (peg channels). currently peg nine Continental offers government channel, channels. A city broadcast from political programs. hall, carries a host Michigan Three channels offer telecourses from University Lansing Community College. State family These telecourses allow individuals with employment commitments to continue their designated education A while at home. provides access channel forum for citizens who traditionally have limited access to avenues agree- the dissemination of ideas. The franchise requires provide equipment, ment training, public.
and assistance to the Addition- ally, religious origination, access, there are local library peg district, school channels. programming provided through
The services and peg channels must be considered accordance obligations with Continental’s contractual and ever-developing technology in order to ascertain agreed, the true pursuant benefit. Continental has agreement,
to the franchise to maintain equipment technology. state-of-the-art This obligation task, no small even casual Mich Opinion Dissenting Mallett, J. evening news aware
observer of *17 daily being in telecommuni- advances made almost obligation, this Conti- In an effort to meet cations. report periodically required prepare nental evaluating developments program- in technical implementation feasibility ming and the service developments, system. includ- recent into Some two-way systems ing on-screen and interactive clearly computer capabilities, indicate home potential service is of cable television the vast coming to the fore. by agreeing
Further, ser universal residents, vice, that all has ensured regardless status, will have access to of economic majority refers the universal services. The these requirement a "restraint on the fran as service operator, precluding company chised cable refusing poorer I communities.”3 service interpret require prefer the universal service recognition by the fran as a fundamental ment operator of cable service benefits chised segments the commu all should be realized sug nity. fact, the record there is evidence gesting already occ has that such realization peg channels, Thus, when the Continen urred.4 technologi obligations, rapid contractual tal’s aggregate, I cal are considered advances present case that the condemnation in the believe primary benefit of the user. 3Ante at 640. College spring Lansing Community 1988 telecourse from eighteen than students with a household income less
received $10,000 $19,999, thirty- $10,000, twelve students between $20,000 $29,999. students between three v Edward Rose Dissenting Opinion Mallett, J. I would reverse the decision the Court of Appeals. majority Because the does reach the issues raised the cross- appellant, I decline to do so as well.