December 2005

The Statehouse

By James Lawlor

Michigan: Zoning Law Reorganization Advances. H.B. 4398, legislation to streamline Michigan's zoning enabling acts, passed the House in early June and is currently in a Senate committee. The bill repeals three current laws covering cities and villages, counties and townships, and replaces them with a single enabling act. The existing acts have similar provisions in many instances, but the act for cities and villages is organized differently from the other two. Generally, the bill is a recodification of existing law, but would provide uniform provisions for the three units of local government, except where differing provisions are necessary due to the organization of local boards.

The Michigan Association of Planning, the state's APA chapter, took a leading role in pushing this legislation along. Some of the advantages it cited for the recodification include ease of amending the law when change becomes necessary; simplified legal citation; uniform public hearing requirements; and elimination of archaic language.

On the eminent domain front, S.B. 693, which would bar the taking private property for transfer to a private entity for the purpose of general economic development or enhancing tax revenue, passed the Senate November 9. Such a transfer is deemed not to be for a public use under the state constitution. To establish that any taking was for a public use, the government would have to establish extreme public necessity; that the property will be devoted to the use of the public after its taking; or that it was selected on the basis of independent public significance or concern, including blight, rather than the private interest of the entity to which the property is eventually transferred.

The MAP's executive board adopted a 14-page policy statement on the takings doctrine and the exercise of eminent domain October 5, which it presented to the legislature's local government caucus. The statement supports the state supreme court's 2004 holding in Wayne County v. Hathcock that the taking of property for the purpose of transferring it from one private party to another, solely to promote economic development, does not qualify as a public use under the state constitution. The statement says the association supports legislative efforts to codify the Hathcock decision, as long as that legislation does not bar local government from using eminent domain to eradicate blight. The paper also states that eminent domain should be used only after all other reasonable methods of acquiring land for a public use have been explored and have failed.

Washington: Takings Initiative. The Washington Farm Bureau is drafting language for a ballot initiative that would require state and local governments to compensate landowners for lost property value caused by regulatory action, or to waive application of the regulation. The bureau plans to file the initiative with the Secretary of State in January. It would need to collect 225,000 valid signatures to get the initiative on next year's ballot.

The concept behind the initiative appears to be similar to that of Oregon's Measure 37, which was invalidated by a state trial court last month. The Farm Bureau's government relations director, Dan Wood, denies that the thrust of the proposal is the same as Measure 37, pointing out that the organization's proposal would be retrospective in application. Wood said the Farm Bureau's beef with environmental regulations centers on habitat designations, waterway buffers and tide gate removal. Bureau members feel private landowners should not be expected to pay for a public benefit, Wood continued, calling it "environmentalism on the cheap." The draft measure also would require government agencies to provide incentives or systems for environmental restoration. Regulations necessary to protect public health and safety would be exempt from the compensation requirement.

Environmental and growth management advocates fail to see much difference between the Farm Bureau's proposal and Measure 37. Aaron Ostrum, executive director of Futurewise (formerly 1000 Friends of Washington) said the initiative would create loopholes for developers to exploit. "The bottom line is it's good for irresponsible developers and it's bad for our quality of life," he declared.

Connecticut: Smart Growth Principles Enacted. The legislature enacted a new law, Public Act No. 05-205, governing adoption of municipal plans of conservation and development. Under the new law, plans are to identify areas where it is feasible to build compact, transit accessible, pedestrian-oriented mixed-use developments, and to promote such development patterns. Further, plans are to incorporate such growth management principles as redevelopment and revitalization of areas having existing or planned physical infrastructure; housing to accommodate a variety of household types and needs; concentration of development around transportation nodes and along major transportation corridors; protection of environmental assets; and integration of planning on a local, regional and statewide basis.

Legislators are working on a draft bill to be introduced in the 2006 session that would modify the procedures for taking property for redevelopment and economic development. The working draft provides that a redevelopment plan must include a determination that the proposed use for a property taken is a public use or for economic development. If a municipality acquires land for economic development, the decision to take land must be approved by a two-thirds vote of the local legislative body. Owners of land taken for economic development would be entitled to compensation of at least 150 percent of the property's fair market value, calculated without reference to any increase or decrease in the value of the property attributable to the redevelopment project or the eminent domain process.

Wisconsin: Limits on Eminent Domain Authority. A.B. 682, introduced September 22, would bar the political subdivisions of the state and certain state agencies from acquiring property by condemnation unless the purpose is expressly authorized by statute.

A bill (A.B. 155) barring counties and municipalities from requiring removal of a nonconforming building, structure or fixture by means of an amortization ordinance has passed the legislature and is awaiting the governor's signature.

Ohio: Eminent Domain Update. On October 26 the House approved S.B. 167, establishing a one-year moratorium on the use of eminent domain by the state government or its political subdivisions to take private property in an unblighted area, when the primary purpose of the taking is economic development resulting in ownership of the property by a private entity. Gov. Bob Taft has signed the bill into law. The legislation also sets up a 25-member legislative task force to study the use and application of eminent domain in the state. Its final report is due April 1, 2006.