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Steve Tobocman: Eminently Concerned

State lawmaker forges rare bipartisanship to sooth eminent domain’s effects

October 3, 2006 | By Charlene Crowell
Great Lakes Bulletin News Service


Democratic State Representative Steve Tobocman, left, worked with several House Republicans on legislation helping people in the path of eminent domain takings.

LANSING—When Michigan voters go to the polls next month, they will not only elect Michigan’s next governor and their own local, state, and federal representatives, they will also consider several proposed amendments to the state constitution.

One amendment has notable implications for land use in Michigan because it would make it more difficult for local governments to use the bedrock governing principle of eminent domain to condemn once-productive, now-blighted property. The amendment would actually reinforce a 2004 Michigan Supreme Court ruling that has already established new, strict criteria for such property-condemnation procedures. Critics worry that the amendment and the ruling make it more difficult for state and local officials intent on reviving their depressed local economies to facilitate new, prosperity-building redevelopment projects.

But while voters contemplate the thorny political and economic issues behind the proposed constitutional amendment, the state Legislature—which placed the amendment on the ballot—has already acted on another part of the often thorny eminent domain debate: It passed a set of laws aimed at helping citizens who are in the path of eminent domain property takings.

Michigan’s lawmakers are hardly alone in dealing with eminent domain. State lawmakers across the country have been busy with the issue ever since a 2005 decision by the U.S. Supreme Court, Kelo v. New London, that allowed a local government in Connecticut to condemn private property in an economically depressed downtown and hand it over to a private developer. In fact, 44 state legislatures have addressed various aspects of eminent domain since the federal court decision; 24 have enacted laws, and six, including Michigan, have placed constitutional amendments on their ballots.

It remains to be seen whether or not the proposed constitutional amendment, known as Proposal Four on the Michigan ballot, passes muster with voters. But, no matter the outcome, the bills authored by State Representatives Steve Tobocman (D-Detroit), Leon Drolet (R-Macomb Township), and John Garfield (R-Rochester Hills), will help alleviate some of the harsh effects some people caught up in eminent domain experience. The Legislature approved the bills—which attracted more than 63 cosponsors representing rural, suburban, and urban areas across the state—last month. Governor Jennifer M. Granholm signed them into law on September 17 and 24.

The bills, now enrolled as Public Acts 369, 370, and 371 of 2006, amend Michigan’s Uniform Condemnation Procedures Act. The ones sponsored by Representatives Drolet and Garfield require timely payments for forced relocation and reasonable opportunity to secure alternative dwellings. The one sponsored by Representative Tobocman guarantees increased relocation payments to those affected by a condemnation proceedings, as well as related attorney fees.

The bill from Mr. Tobocman, a Princeton-educated attorney who has represented southwest Detroit in the Legislature since 2003, demonstrates his penchant for advancing economic initiatives while striving to protect individual citizens from the harm the initiatives can cause. His other legislative achievements include passage of a law establishing a state administrative hearings bureau that helps local governments fight blight, and the Michigan Immigration Clerical Assistance Act, which offers landmark consumer protection to immigrants. 

Before his election to the Michigan Legislature, Mr. Tobocman founded and served as the first executive director for Community Legal Resources, a nationally-recognized, Detroit-based organization that extends legal representation to nonprofit organizations throughout the state. Since its 1998 inception, more 200 nonprofit organizations have benefited from more than $1.5 billion in free legal services from CLR. The representative is also a founding member of both Community Development Advocates of Detroit and Community Economic Development Association of Michigan.

In a recent interview with the Great Lakes Bulletin News Service, Mr. Tobocman reflected on eminent domain and Michigan’s future.

Great Lakes Bulletin News Service: In lay terms, how would you describe eminent domain?

Tobocman: The government’s taking of private property.

Why has this issue drawn such widespread interest among legislators—particularly here in Michigan, where it appears to have unified otherwise disparate views and is now embraced by conservatives and liberals, rural and urban constituencies, and both peninsulas?  

Tobocman: I can tell you what has made it a hot topic: the U.S. Supreme Court decision in Kelo v. New London. It’s a hot topic throughout the country. But in Michigan, we have the most unique and historic perspective on this topic.

The Michigan Supreme Court’s Poletown decision in the early 1980s is taught to first-year law students throughout the country as the quintessential case permitting the use of eminent domain for economic development purposes. Yet in 2004, in the Hathcock decision, the Michigan Supreme Court reversed this 23-year precedent, ruling that private property could not be taken and given to a second private owner for economic development purposes.

The 2005 Kelo decision brought renewed national media attention to an issue that Michigan has been debating for the last quarter century. So it is little surprise that when eminent domain became a national topic and state initiatives would be taken up in over 35 states, it would represent an opportunity for Michigan legislators to revisit the debate.

What was the impetus for the tie-barred package of House Bills 5817 through 5821 recently signed by the governor? 

Tobocman: The Kelo decision preceded a national movement among state legislatures— roughly three dozen—to protect private property owners in eminent domain proceedings for economic development purposes. In Michigan, the Hathcock decision provided a road map to enact the most basic protection.

But what was uncovered during our legislative hearings—particularly those before the House Government Operations Committee—was that Michigan procedural laws governing eminent domain were severely lacking the kinds of protections afforded under federal law.

These issues are particularly egregious as they relate to poor people, renters, and urban denizens—those who are most often subjected to eminent domain proceedings.

How is this legislative package tied to the constitutional amendment that voters will decide in November? What do voters need to understand when they go to the polls?

Tobocman: Voters should understand that, if the ballot initiative fails, these limitations on [the harm] eminent domain [can do to a property’s occupants] will still be provided for in the statute.

Voters need to decide whether they feel strongly enough about [how eminent domain is applied] for it to be reflected in the Michigan Constitution, our state’s fundamental governing document.

In addition, [the bills recently signed by the governor] enact a number of procedural protections for those whose properties are condemned under eminent domain. These protections include raising the allowable moving expense from a $1000 to the federal limit of $5,250.00. They include eviction protection for tenants, and guaranteed compensation for month-to-month renters.

In addition to broader access to legal services, the package also provides a number of technical legal protections for homeowners and businesses that are subject to condemnation.

It seems that eminent domain invokes determination on three key concerns— determining just compensation, “public use,” and defining blight.

Let’s start with just compensation. The signed legislation requires local communities to pay 125 percent of fair market value for the taking of property. Considering the deficits facing most local Michigan governments, can they really afford to pay this level of compensation?  

Tobocman: The more appropriate question is whether public uses should be paid for on the backs of a few private property owners who do not have the option to decide whether or not to support that public use. The real question is: Should a few unlucky private property owners subsidize government’s decisions or should the cost of those decisions be spread to the entire citizenry?  

Let’s address the second of those issues, “public use.” As a practical matter, how do cities and towns pursue economic development and revitalization if they are not allowed to use eminent domain to assemble contiguous land parcels? 

Tobocman: There are numerous tools and incentives that the government can provide to foster economic development that don’t involve assembling property. Michigan has perhaps the most progressive and powerful tool of any state to assemble parcels of property for redevelopment, particularly in urban and disinvested communities. The Michigan Land Bank Fast Track Authority, combined with aggressive tax foreclosure, under Public Act 123, gives municipalities and counties tools to enable our state to re-utilize its vacant and under-utilized industrial properties for redevelopment purposes.

I am confident that local units of government will continue to be an important player in spurring economic development in Michigan’s 21st century.  

And on the third concern—blight—will each community set its own standard of what constitutes blight? Or will Michigan define blight for all of its communities? 

Tobocman: During the hearings regarding eminent domain, it became clear that blight is defined more than a half dozen times in Michigan statutes. There is a desire, to the extent feasible, to seek to create one common definition of blight and use an alternative term where that definition would inhibit the public policy purpose of the statute.

The legislative package reflects a concern that blight would create a loophole for local units of government that seek to take private property to give it to another private entity for the purposes of economic development.

I fought to balance the legitimate concern of those concerned about the so-called blight loophole with those in communities that need strong tools to crack down on negligent property owners that do not maintain their properties. The definition of blight in the statute hopefully reflects that balance.

How soon and in what ways would the proposed constitutional amendment, in league with the new laws the governor just signed, change economic development in Michigan? 

A: I expect these changes, signed into law or amended in the constitution, will have negligible impact on the day-to-day practices of local government. Those practices have already been severely curtailed because of the Hathcock decision.

Q: Any closing comments?

Tobocman: I think the statutory protections for low income people, urban dwellers and renters reflect a truly bipartisan effort. And it is one of the few pieces of policy that one could say that about in my four years in the legislature.

It’s a shame that term limits will affect Representative Drolet and prevent him and me from building upon the personal trust we have been able to develop despite our profound ideological differences.

Charlene Crowell is the Michigan Land Use Institute’s state policy director. Reach her at charlene@mlui.org. Charlene will report on the other constitutional amendment up for consideration in Michigan’s statewide election on Nov. 7, concerning affirmative action, next week.

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