1 Public Use and Public Purpose

Mary Massaron Ross and Hilary Ann Ballentine

Athreshold question for any taking is whether the taking is for a public use. For many years, the ready answer was that state and federal courts read the public use clause to impose no real restrictions on the use of eminent domain.¹ Two path-breaking decisions have revived the debate about the meaning of "public use" in both the courts and the legislatures.² Practitioners must analyze the law in a particular jurisdiction to determine whether eminent domain is limited to public uses, how broadly or narrowly the concept of public use is defined, and whether a particular taking fits within these limits.

Framers of the United States Constitution sought to safeguard private property rights, which they saw as one of the great objectives of the government.³ Fearing the draft constitution was insufficient to protect these rights, Madison urged Congress to add a broad statement explicitly acknowledging the people's "right of acquiring and using property."⁴ The Fifth Amendment incorporated these concepts about the importance of private property into the Constitution and remains the most significant guarantee of these rights in that document. The scope of that protection, and whether it embodies both concepts—the right to acquire and the right to use—is now subject to heated debate. Does the Fifth Amendment merely protect against taking property without compensation, or does it also limit the scope of the government's power to take property, limiting the use of eminent domain to a "public use"?

Early decisions applied the "public use" language of the Fifth Amendment to restrain state legislatures.⁵ The court in Bloodgood v. Mohawk & Hudson Railroad Co. described "public use" as "a constitutional declaration, that private property without the consent of the owner, shall be taken only for the public use," by which the court meant "direct possession, occupation and enjoyment by the public."⁶ The court in Harding v. A.G. & R. Goodlett upheld the taking of property for a grist mill because a grist mill was "emphatically a pub lic use for which it [the property] is required, and to which it is appropriated."⁷ The state statutes governing grist-mills required them to grind for any member of the public under prescribed conditions and for specified pay.⁸ Thus the court distinguished taking for the grist -mill from "the case of taking property from one man and giving it to another for his private benefit only."⁹ These grist-mill cases were analyzed differently by different state courts.¹⁰ Decisions in the early cases hinged on whether the statutes allowing for creation of mills and dams resulted in their being available to the public for use.¹¹

Later courts deviated from this early insistence on public use and blurred the distinction between "use" and "purpose." Fallbrook Irrigation District v. Bradley concerned whether property for an irrigation district to irrigate arid lands was a public use: the "question what constitutes a public use has been before the courts of many states, and their decisions have not been harmonious; the inclination of some of these courts being towards a narrower and more limited definition of such use than others."¹² The Court noted that the federal Constitution does not specifically prohibit the "taking of private property for any but a public use"; thus, the Fourteenth Amendment did not make taking property for any but a public use a deprivation of due process.¹³ If the use was not public, no general irrigation scheme was possible.¹⁴ A statute providing for irrigation districts and assessments passed muster under the federal Constitution as a public use.¹⁵ "[I]n a state like California, which confessedly embraces millions of acres of arid lands, an act of the legislature providing for their irrigation might well be regarded as an act devoting the water to a public use, and therefore as a valid exercise of the legislative power."¹⁶ The Court employs the terms "public use" and "public purpose" interchangeably, thus blurring the analysis.¹⁷ This approach upholds taking property that will not be owned by the public so long as it is taken for a public purpose.

An 1843 article in the legal press suggested that "it never once entered their minds that it could be made a question, whether private property could be wrested from one citizen or subject for private purposes only."¹⁸ Critics never persuaded more than a minority of states to accept a narrow meaning of the public use clause in state or federal laws. Many state courts embraced the broad approach but added heightened scrutiny, as the Michigan Supreme Court did in Poletown Neighborhood Council v. Detroit,¹⁹ a decision that affirmed the use of eminent domain to acquire a site then conveyed to General Motors to construct an assembly plant. Federal courts consistently embraced the broad view equating a public purpose with a public use as espoused by the Supreme Court in Berman v. Parker and Hawaii Housing Authority v. Midkiff.²⁰ The Supreme Court's own broad approach draws from federalism and separation of powers principles that require deference to legislative policy decisions A narrow view of the Fifth Amendment would limit the state's power to condemn even under state courts' readings of state constitutions The Supreme Court has avoided invalidating state laws that allow taking property for uses traditionally deemed to be private to meet local needs

This debate persisted for over 100 years, until the decisions by the Michigan Supreme Court in County of Wayne v. Hathcock and the U.S. Supreme Court in Kelo v. City of New London, which reached opposite conclusions.²¹ Hathcock and Kelo and the judicial and legislative reactions to them offer insight into the use of eminent domain as a matter of policy and the legal issues that face private property owners, developers, and governments when they consider use of eminent domain.

County of Wayne v. Hathcock

Wayne County had purchased 500 acres of property south of the newly renovated Detroit Metropolitan Airport to comply with Federal Aviation Administration noise reduction requirements. The county then purchased another 500 acres and sought to condemn 19 additional parcels so that it could develop a 1,300-acre business and technology park.²² Proximity to the airport and a major freeway made the location "ideal" for "a mixed use development such as we're proposing."²³ The County Board began formal condemnation proceedings on July 12, 2000.²⁴ A Resolution of Necessity and Declaration of Taking set forth the following ostensible purposes of the condemnation:

(i) The creation of jobs for its citizens, (ii) the stimulation of private investment and redevelopment in the County to ensure a healthy and growing tax base so that the County can fund and deliver critical public services, (iii) stemming the tide of disinvestment and population loss, and (iv) supporting development opportunities that would otherwise remain unrealized. . . .²⁵

The resolution listed the following additional purposes: development of recreational facilities and open use lands, improvement and maintenance of public roads and highways, improvement and maintenance of storm drainage ditches and other storm discharge facilities, and possible airport expansion, including the possible construction of a new runway. The county was the developer at the outset but hoped to sell the property to private developers at a profit.²⁶

The property at issue was not blighted.²⁷ The county never alleged and could not have shown substandard housing or dilapidated buildings, contaminated land, or other unsafe or unhealthy conditions. Thus, Wayne County's effort to condemn the property did not fall within the traditional parameters of a taking in Michigan.²⁸ Given Michigan appellate courts' narrow view of public use, Poletown could be isolated from prior precedent as a result-oriented decision issued during a time of public crisis and community consensus that new automobile plants were essential to the city's survival.²⁹ Justice Ryan's dissent in Poletown attested to the pressures the court faced as it issued the decision.³⁰

In Hathcock, the Michigan Supreme Court unanimously agreed that the county's effort to condemn the property did not pass muster under the Michigan Constitution of 1963.³¹ Condemnation to transfer property to private parties did not amount to a taking for public use in this case: "Wayne County intends to transfer the condemned property to private parties in a manner wholly inconsistent with the common understanding of 'public use' at the time our Constitution was ratified."³² In separate opinions the court agreed that Poletown should be reversed.³³

Analyzing the scope of public use as a limit on takings required the court to interpret the common understanding of the term "public use" when the 1963 constitution was ratified.³⁴ The court concluded that "public use" was a term of art, having a "technical meaning within the law."³⁵ By the time of the 1963 constitution the court had employed the "constitutional 'public use' requirement . . . to prohibit the state from transferring condemned property to private entities for a private use."³⁶ Past precedent revealed various factors used to distinguish takings for private use from those for public use.³⁷ The Michigan Supreme Court declined to "cobble together a single, comprehensive definition of'public use' from our pre-1963 precedent and other relevant sources";³⁸ instead, the court limited the holding to the "fairly discrete" question presented in Hathcock.³⁹ It held that the condemnation and subsequent transfer of the properties at issue were inconsistent with the common understanding of "public use" in 1963.⁴⁰ It reached this result by applying factors discussed in the Poletown dissent⁴¹ to evaluate whether the county's project amounted to a public use

First, unlike highways, railroads, and canals, where public...