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The Record Shows: Distressing Agenda Gains in Michigan

April 19, 1997 | By Keith Schneider
Great Lakes Bulletin News Service

DEQ officials defend their action on the basis that the rights of mineral owners and lease holders "must be respected." In effect, they appear to be determining that the drillers' rights are more important than the rights of residents. Again, property owners have urged the Engler Administration to assist them, and have received no response.

* In Grawn, just south of Traverse City, the anti-regulatory attitude at the DEQ contributed to a public health hazard and environmental and financial debacle.

In late 1995, homeowners and school officials called the DEQ with their concerns that a large and poorly-managed tire dump was causing pollution and might catch fire. Carl's Retreading is located 200 feet from a subdivision, and 700 feet from the Blair Elementary School.

DEQ pollution control agents investigated, and reported no immediately grave violations. Instead, the DEQ said it would "work with" Carl's Retreading to come into compliance with state law regulating scrap tires.

Shortly afterwards, the dump erupted into an unstoppable fire that burned for weeks. Huge clouds of black smoke churned into the air. Dense and oily soot rained down on houses and yards. Families had to flee their homes, and one 12-year-old girl was hospitalized with a severe asthma attack.

Extinguishing the fire and cleaning up afterwards cost state and local taxpayers $1 million, according to Marvin Radtke Jr., the Blair Township Zoning Administrator. A bill passed the Legislature to compensate the Township and Grand Traverse County for their $100,000 portion of the cost, but it was vetoed by the Governor.

Amazingly, after the fire ended DEQ officials inspected the dump again, and again reported that there were no violations of the law.

Finally, in February 1997, after the Township and County repeatedly pressed for yet another inspection, the DEQ issued sanctions against the dump's owner.

"We don't understand how come the state treated Carl's Retreading with such a soft touch," said Mr. Radtke. "My gut feeling is one of being bewildered."

These situations illustrate how responsible rules and valid laws have been twisted in legal logic and context by the property rights movement and its champions in Lansing.

Public interest advocates are organizing to employ illustrative facts that will dull the cutting edge the movement has brandished in Michigan. Even more importantly, they are articulating a new vision for protecting public health and the environment that is based on sound economic goals, fairness, and shared civic responsibility.

What is a "Taking"?

The right of citizens to own and manage property is a basic principle of American democracy. So too is the power of government to decide certain uses of private property for public purposes.

The Fifth Amendment to the Constitution clearly states that if the government seizes, or takes away all use of private property, it must pay the owner just compensation. Historically, courts have ruled that a 'taking' occurs only when there is no longer a viable private use of the land -- such as when it is taken for roads, bridges, parks, and military bases.

The 'takings' movement that has erupted in the 1990s is largely about whether Fifth Amendment protections should be expanded to include the regulation of property.

Advocates for this view are opposed to communities' rights to determine what serves the overall public interest. They argue that any government action that limits the use of private property also is a 'taking' that must be compensated.

Periodically in American history, property rights arguments have been used to challenge laws designed to protect the public interest, and have been rejected by the courts.

In the 19th century, for example, judges ordered restrictions on uses of property after ruling that a person does not have the right to be a public nuisance, pollute, or cause injuries or damage.

In the early 20th century, business owners rebelled over new zoning restrictions, claiming their property rights were being violated. Again, the courts sought to draw a line of fairness, and ruled government has the authority to protect the public from air and water pollution, noise, and odors.

In 1992, in a widely watched 'takings' case, the U.S. Supreme Court ruled that only when a regulation deprives a landowner of all economically viable uses of their property is there a taking that merits compensation.

This decision, and several other recent federal court decisions, have upheld the integrity of the historical interpretation of the Fifth Amendment.

In Michigan, however, some activist judges are applying the more radical interpretation.

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