CITY OF NOVI v ROBERT ADELL CHILDREN‘S FUNDED TRUST
Docket No. 122985
Supreme Court of Michigan
Arguеd April 13, 2005 (Calendar No. 6). Decided July 20, 2005.
473 MICH 242
In an opinion by Chief Justice TAYLOR, joined by Justices CORRIGAN, YOUNG, and MARKMAN, the Supreme Court held:
The proposed condemnation is for a public use. There was no fraud, error of law, or abuse of discretion in the city‘s determination of necessity. The judgments of the trial court and the Court of Appeals must be reversed and the matter must be remanded to the trial court for the entry of summary disposition in favor of the city.
Where a public body establishes a road, pays for it out of public funds, and retains control, management, and responsibility for its repair, private property may be condemned for the project, no matter what the proportional use of the road will be by the public or by private entities. The road proposed by the city is a public use. - The lower courts erred in applying the Poletown test because no property interest is being transferred to a private entity and because, even if there were such a transfer, the three-factor test of Wayne Co v Hathcock, 471 Mich 445 (2004), would apply instead of the Poletown test.
- The determination of necessity is left to the public agency, not the courts. The only justiciable challenge following the agency‘s detеrmination is one based on fraud, error of law, or abuse of discretion. None of these bases exists in this matter.
Justice WEAVER, concurring, agreed with the majority opinion that the proposed road is a public use for which private property may be condemned. This matter is not controlled by Hathcock because this case does not involve the transfer of private property from one private entity to another through the exercise of eminent domain. The majority properly found that the city did not commit fraud, an error of law, or abuse its discretion in finding the condemnation of the property necessary and that this matter is not moot and this Court cannot avoid addressing the constitutional and statutory questions involved on the basis of the dissent‘s assumption that the road project will not proceed. She does not, however, join the majority‘s purported review of the basic principles of mootness law and noted that the majority‘s importation of a discussion of subject-matter jurisdiction requirements from a case involving standing involves a discussion that has little relevance to the question whether the issues presented in this matter are moot.
Reversеd and remanded to the trial court for the entry of summary disposition in favor of the city
Justice CAVANAGH, joined by Justice KELLY, dissenting, concluded that, given the record, the matter is moot and the Supreme Court is without authority to decide it. The case is not the sort that is likely to recur, yet evade judicial review. Because the majority addresses the merits of the moot claim and renders an advisory opinion, Justice CAVANAGH stated that, were the matter not moot, it would be necessary to remand the case for the trial court to address the defendants’ claim that the city‘s determination of public necessity was made on the basis of fraud, error of law, or an abuse of discretion. The defendants’ argument regarding fraud
- EMINENT DOMAIN - HIGHWAYS - PUBLIC USE.
Private land may be condemned for а road where a public body establishes a road, pays for it out of public funds, and retains control, management, and responsibility for its repair, no matter what the proportional use of the road will be by the public or by private entities; it is the right of travel by all, and not the exercise of the right, that makes a road a public highway (
Const 1963, art 10, § 2 ). - EMINENT DOMAIN - NECESSITY OF TAKING - APPEAL.
The determination of necessity for the taking of property by eminent domain is left to the public agency, not the courts; an agency‘s determination of necessity may be challenged only on the basis of fraud, error of law, or abuse of discretion (
MCL 213.56[2] ).
Secrest Wardle (by Gerald A. Fisher, Thomas R. Schultz, and Stephen P. Joppich) for the plaintiff.
Steinhardt Pesick & Cohen Professional Corporation (by H. Adam Cohen, Jerome P. Pesick, and Jason C. Long) for the defendants.
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
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. As early as 1984 a study recommended a “ring road” 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 that were then accessed from Grand River Avenue. The study recommended the spur road because the employee traffic from the industries with access on Grand River Avenue was resulting in frequent accidents. The study noted that, but for “the need to resolve [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,
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,
Defendants filed a motion challenging the public purpose and necessity of the taking, pursuant to
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
The circuit court concluded that the proposed taking was unconstitutional. Thе 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 predominant private benefit removed the project from the realm of constitutional, public uses. Without further explanation, the court then held that “Plaintiff City‘s actions evidence a lack of public necessity by fraud, error of law and/or abuse of discretion,” and thus the proposed taking was unconstitutional.
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 Poletown regarded the concept of public necessity as being separate and distinct from that of public use or public purpose. 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, making the proposed taking
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 the Michigan Constitution, private property shall not be taken for public use without just compensation.
The statutes under which plaintiff was proceeding are the Home Rule City Act,
III
There does not appear to be any dispute that plaintiff, in its charter, has claimed for 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.
This Court recently clarified Michigan‘s law concerning public use in Hathcock, supra. However, we declined to provide a “single, comprehensive definition of ‘public use....‘” Hathcock, supra at 471. We overruled Poletown‘s heightened scrutiny test because it violates our Constitution, and instead set forth the three-factor test
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 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
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 considеrable extent by any person, except the party for whose accommodation it was opened.” [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 III 568, 573; 145 NE 195 (1924). Wisne is to
We do not find the fact that Wisne was expected to contribute to the funding of the road dispositive of the 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. It is required pursuant to
Fraud does not provide defendants a basis for relief in this case because the requisite elements are not supported by the record.8 Moreover, under the Home Rule 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 to review whether plaintiff
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 never considered any alternatives and that reasonable alternative locations were available. 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
V
In his dissent, Justice CAVANAGH suа sponte raises the question of mootness,12 concluding that the city does not 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
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). If such a motion is brought, “the plaintiff must further support the allegations of injury with documentation” and must sufficiently support its claim if it goes to trial. Nat‘l Wildlife, supra at 631.
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 sufficiеnt so that we sua sponte can proceed. We think the record cannot support that conclusion. The dissent, relying entirely on the oral argument here, infers that several 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. This does not indicate abandonment; rather, it refers to a desire to consolidate all parts of the project before getting underway. Certainly in the absence of
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 262. Yet, plaintiff had no reason to respond in such 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 sаid 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? Not very, we believe. 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 with the condemnation upon prevailing in this Court. On remand, should the defendants conclude that mootnеss actually is an issue, they can raise it in the normal course and let the trial court determine if they have met their burden.
VI
We hold that the proposed road and spur are for a public use, and therefore the proposed condemnation does not violate
CORRIGAN, YOUNG, and MARKMAN, JJ., concurred with TAYLOR, C.J.
WEAVER, J. (concurring). I concur in the majority opinion that the road proposed by the city of Novi is a public use under
The majority correctly notes that this case does not involve the transfer of private property through the exercise of eminent domain from one private entity 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). But then the majority suggests
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
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. However, I do not join the majority‘s purported “review of the basic principles of mootness law....” Ante at 256. 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 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.
CAVANAGH, J. (dissenting). I respectfully dissent from the majority opinion. This matter is moot and, consequently, we are without authority to decide it. With regard to the majority‘s substantive analysis, the ma-
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 one of public significance thаt is likely to recur, yet evade judicial review.” Id., citing 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 to this claim. The city sued to condemn defendants’ land so that it could pursue a particular project. As identified in its condemnation complaint, the city‘s 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
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.” (Emphasis added.)
During defense counsel‘s argument, Justice KELLY asked:
You began to develop an idea and you didn‘t complete it because you were interrupted. Were 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
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
Our jurisprudence regarding mootness has been established for well over a century. 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 nо 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
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 for trial courts addressing this issue in the future.3 We are constitutionally proscribed from granting declarations of this sort, despite whether the mootness inquiry originates from a party. See id.; see also Sibron v. New York, 392 US 40, 57; 88 S Ct 1889; 20 L Ed 2d 917 (1968) (recognizing the constitutional genesis of the mootness doctrine). 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 еffect 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 it has been aptly recognized that it “is assuredly frustrating to find that a 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
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 remaining and no relief available to the parties. It is unfortunate that the majority does not recognize this. Instead, the majority remands this case for entry of a judgment that the city can condemn defendants’ property. 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, simply no longer exists because the project is defunct. As defense counsel noted, constructing the spur on defendants’ property would be an exercise in futility because there is no ring road with which to connect it. Consequently, the trial court will 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 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 to
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 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 оpinion 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
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 the mootness doctrine. Indeed, such an exception would wholly obviate the doctrine because a party to a moot appeal would invariably advance the argument 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. And it is ascertainable from the existing record that this moot matter, while of arguable public significance, is not susceptible to evading judicial review. While the state funding agency required the city to 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. Thus, there is no sufficient showing that this case is the sort that is “likely to recur, yet evade judicial review.”
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 reсord, which consists of letters discussing the funding withdrawal for the road project. I believe that evidence, coupled with the statements 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
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 permissible inquiry in a condemnation case is limited to whether a taking entity‘s decision regarding public necessity was based on fraud, an error of law, or an abuse of discretion.
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 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. Having found so, it was unnecessary for the trial court 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 not 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 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 253 n 8. A triаl court cannot accept the taking entity‘s
Last, I wholeheartedly disagree with the amount of deference the majority affords the government in determining that the taking of a particular piece of property is necessary. As stated, the precise legal question is whether, to complete the project, the government needs all the property involved or needs one particular piеce of property rather than some other property. Vanderkloot, supra at 176-177. 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. Nec-
With regard to public necessity, the majority‘s first analytical error is in failing to properly apply the clear error standard. City of Troy, supra at 569; Nelson Drainage, supra at 403. 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, thе decision to take defendants’ property was not outside the ” ‘principled range of outcomes.’ ” Ante at 254, 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 of property to the exclusion of considering other parcels or even alternatives to condemnation.8 Thus, a conclusion that the city‘s outcome fell within an acceptable
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 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 stated in its complaint, i.e., safety and welfare. 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 or only alternative, only that it is a reasonable one.” Ante at 254. Again, a taking agency‘s mere claim that the choice was “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 thе record demonstrates that the city chose defendants’ property
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.
This unquestioning ceding of power is not what was contemplated by the constitutional or statutory prohibitions against the unnecessary taking of private property. Contrary to the majority‘s position, a reviewing
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 the merits of this claim. As such, the city‘s appeal should be dismissed. Moreover, the majority‘s public necessity analysis dilutes the power and obligation of a reviewing court to protect a private property owner from an unlawful taking by conferring unchecked deference on a taking entity‘s declaration of necessity. Accordingly, I dissent.
KELLY, J., concurred with CAVANAGH, J.