OWNERS CAN CHALLENGE WHETHER ACQUISITION OF ALL RIGHTS SOUGHT ARE NECESSARY

Even if an agency seeks to acquire property rights to facilitate a project that is unquestionably a public use, property owners may challenge whether it is necessary for the agency to acquire all the rights it seeks.

There are two key questions that must be answered when an agency seeks to use eminent domain.  First, is the project itself a public use?  If a project is a public use, then the power of eminent domain may generally be used to condemn property.  Second, assuming that the project itself is a public use, is it necessary to acquire all the rights that the agency seeks?  This post discusses issues relating to this second question.

At the outset, it is important to note that challenges must be made immediately.  MCL 213.56(1) identifies the time by which necessity must be challenged: “within the time prescribed to responsible plead after service of a complaint, an owner of the property desiring to challenge the necessity of acquisition of all or part of the property for the purposes stated in the complaint may file a motion in the pending action asking that the necessity be reviewed.”  MCL 213.56(7) confirms the ramifications of an owner’s failure to challenge necessity within the time prescribed.  “If a motion to review necessity is not filed as provided in this section, necessity shall be conclusively presumed to exist and the right to have necessity reviewed or further considered is waived.”

If a timely challenge is filed, the property owner may still assert that the agency is acquiring rights that they do not need.  In Troy v Barnard, 183 Mich App 565, 572; 455 NW2d 378 (1990), the Court of Appeals determined that the City could not establish the necessity to take more land than was required to construct a sidewalk:

Plaintiff’s complaint for acquisition of property, along with its accompanying documents entitled “Statement of Necessity” and “Declaration of Taking,” all indicate that it was attempting to acquire the property for a sidewalk.  Clearly, neither seventeen feet nor twenty-seven feet are necessary for the construction of a five-foot sidewalk.  We believe that the words “public necessity” and “necessity” in the UCPA mean a necessity now existing or which will exist in the near future, not an indefinite, remote or speculative future necessity….  Plaintiff’s acquisition of excess property, premised on the hope that it might widen Square Lake Road sometime within the next thirty years, does not meet the test of necessity.  Further, the fact that plaintiff can utilize this extra land in the meantime for other purposes, such as utility placement and snow storage, does not help to justify the condemnation. 

Obviously, the construction of a sidewalk next to a public road would be a public use.  However, this ruling barred the agency from essentially landbanking property it may need at some speculative point in the future to widen the road.  Thus, the agency could use eminent domain to take the rights it actually needed to build a sidewalk, but could not take more.

I have addressed these circumstances in different scenarios.  For example, when property was being acquired for the construction of Comerica Park and Ford Field, the Detroit/Wayne County Stadia Authority wished to acquire the building that is currently used for Cheli’s Chili Bar.  However, the plans disseminated by the Stadia Authority only incorporated use of that property as part of a larger design that included the church parking lot immediately to the north.  When the Stadia Authority decided it would not acquire the church parking lot, it could not identify any actual intended use for the building that became Cheli’s.  Therefore, the necessity challenge was successful and the building was saved.

I have also encountered these issues with utility companies.  For example, I handled a matter in which a pipeline company was authorized to acquire right-of-way to construct a single pipeline.  The easement that the pipeline company sought to condemn gave it the right to install multiple pipelines without paying any future just compensation.  After I challenged necessity, the easement was revised.

Necessity challenges are not easy to win.  Courts are required to defer to agencies’ discretion.  Therefore, the issues are best carefully analyzed in advance to identify legitimate issues and prepare to make challenges when lawsuits are filed.

Because necessity challenges must be made immediately and are on a very tight timeline with the reviewing court, it is critical to evaluate the legal rights that the condemning authority is seeking to acquire as soon as a good faith offer is issued.  It is difficult to undertake a necessity challenge in the best of circumstances given the timing constraints contained within the Uniform Condemnation Procedures Act.  Therefore, if a property owner is concerned about the breadth of rights proposed to be acquired, it is critical that the owner consult with an experienced eminent domain attorney as soon as possible.