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Stephon B. Bagne

Member, Clark Hill PLC

Phone: (313) 965-8897

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Email: sbagne@clarkhill.com

Website: Clark Hill Property Owner Condemnation Services

 

Stephon B. Bagne’s expertise in representing property owners in condemnation cases is widely recognized. Stephon has represented all types of property owners in a variety of situations including vacant and improved property, partial and total takings, easement and fee acquisitions, involving commercial and residential properties. He has won jury trials in courts throughout the State of Michigan and successfully defended those verdicts before the Michigan Court of Appeals. Stephon has prevailed in challenges of the necessity of takings and negotiated less onerous acquisitions in partial taking matters. He regularly speaks and writes about eminent domain and other real estate law issues for a variety of professional organizations. For a more complete bio, please click here.

 

 

 

 

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Wednesday
Feb042015

Lenawee County Compelled to Acquire Additional Easements

Lenawee County has resolved a new lawsuit filed on behalf of property owners adjacent to its expanded airport by agreeing to initiate formal condemnation proceedings this summer.

I have been representing property owners impacted by taking initiated by Lenawee County to facilitate expansion of its airport for approximately fourteen years.  This includes cases involving property located in a subdivision adjacent to the airport, where the County placed homes in the Runway Protection Zone and acquired avigation easements.  To read a blog post specific to RPZs, click here.  http://michigancondemnationblog.com/home/2013/7/12/runway-protection-zones-destroy-the-value-of-residential-pro.html  The County dramatically underestimated the impact of its acquisition on the properties it condemned, resulting in jury verdicts requiring the County to acquire the homes.  To read a Michigan Lawyers Weekly article detailing one of these verdicts, click here

In the lawsuits described in that article, the County confirmed that it intended to acquire easements from all properties located in the RPZ.  However, when it realized the cost of acquiring these easements, the County decided to simply operate the airport without acquiring the easements it stated were necessary, allowing the properties to languish in the RPZ with planes buzzing overhead. 

Following the conclusion of the first phase of cases, I, along with my co-counsel, Bruce Benz, initiated a new lawsuit against Lenawee County.  That lawsuit sought an injunction requiring closure of the airport or, alternatively, the runway closest to the property owners’ homes until such time as the County acquired appropriate property rights. 

The lawsuit is well-supported by Michigan law.  In Bales v State Highway Commission, 72 Mich App 50 (1976), the Michigan Department of Transportation acquired fee ownership in a number of residential homes in a residential subdivision.  All of the owners in the subdivision enjoyed negative reciprocal covenants prohibiting any other property from being used for something other than residential purposes.  The Michigan Court of Appeals, in recognizing that such covenants are valuable property rights that can only be extinguished via eminent domain, upheld an injunction.  That injunction forbid any construction of M-14 on the properties acquired within the subdivision until such time as the negative reciprocal easements had been extinguished.  The Court upheld this injunctions despite the Michigan Department of Transportation’s claims that such an injunction would result in dire financial consequences to the region and potential loss of federal highway funding dollars.   Thus, the Bales case was cited as authority supporting the property owners in Lenawee County.  To read the full Bales decision, click here.  

In addition, the Uniform Condemnation Procedures Act (“UCPA”) was implemented after the Bales decision was issued.  The UCPA provides statutes that govern all procedural aspects in a condemnation case.  The UCPA includes two statutes that were helpful to the property owners.  MCL 213.52(2) states that “if properties to be acquired by an agency through the exercise of its power of eminent domain, the agency shall commence a condemnation action for that purpose.  An agency shall not intentionally make it necessary for an owner of property to commence an action, including an action for constructive taking or de facto taking, to prove the fact of the taking of the property.”  To see the full statute, click here

In addition, MCL 213.74 states that “ In order to compel an agreement on the price to be paid for the property, an agency may not advance the time of condemnation, defer negotiations or condemnation, defer the deposit of funds for the use of the owner, nor take any other action coercive in nature.”  To see the full statute, click here.   

Following the filing of the complaint, Lenawee County, with the blessing and support of the Michigan Department of Transportation Bureau of Aeronautics, agreed to settle the lawsuit by initiating condemnation proceedings.  That agreement is memorialized by a Consent Judgment entered in the lawsuit establishing deadlines by which the County must act and authorizing the Court to enforce the requirements of the judgment.

The lawsuit represents a complete victory for the property owners.  Given the local publicity surrounding the first batch of airport takings and the fact that four houses in the residential subdivision have been removed as a result of the County’s taking, the neighboring property owners were placed in an untenable situation, being force to live in dangerous homes that they could not sell. 

If you are confronted with a prolonged but as to be yet unimplemented project or any issues relating to airport condemnations, please feel free to contact me. 

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