Michigan Land Use Institute

Thriving Communities / News & Views / Articles from 1995 to 2012 / Property Rights and the Search for Justice

Property Rights and the Search for Justice

The record shows: A distressing agenda gains in Michigan

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

On June 4, 1996, high court judges in two upper Midwest states issued striking decisions in similar cases involving the government's authority to protect environmentally sensitive land.

In an ironic twist, these completely contradictory rulings, issued on the very same day, fashioned a moment of utter clarity in the political dust storm stirred up by the clash over private property rights.

• The Wisconsin Supreme Court rejected a property rights claim by a landowner, and ruled that the city of Waukesha can enforce its zoning law to prevent development of a wetland.

• In Michigan, an Appellate Court awarded $5.2 million of taxpayer money to K&K Construction Co., ruling that since the Department of Natural Resources had enforced laws prohibiting development of wetlands in Oakland County, there was a "taking" of private property.

The Wisconsin case reinforced the traditional legal interpretation of the Constitution that forms the basis of property law in the United States. In recent months, the highest courts in Rhode Island and New York also have handed down similar rulings, turning aside "takings" claims by developers who wanted to fill protected wetlands.

However, in Michigan's K& K case, the Appellate Court went against the grain. The decision not only codified the radical property rights ideology -- it also established a powerful precedent. In no other state has the property rights movement gained as much of its agenda as it has in Michigan. The movement's rhetoric has become part of the daily conversation of business, and its leaders have gained influence at every level of government.

Much of the movement's success in Michigan is due to the political attractiveness of the message: Reduce the size and intrusiveness of government.

However, Governor John Engler has taken advantage of Michigan's grassroots support for this goal, and used it as an ideological foundation to lower regulatory barriers for businesses and large land owners. Simultaneously, the Engler Administration has steadily erected higher barriers for citizens to become involved in state decision making.

The result is that business interests have gained even greater access to state government than they already enjoyed, while essentially everyone else is kept at arm's length. Here is one telling example:

• In 1993, the oil and gas industry worked with senior DNR officials to privately negotiate a subsidy, without the knowledge of the Natural Resources Commission, the Legislature, or the public. This "sweetheart deal" resulted in a $12 million drain on state revenues that would have gone to protecting natural resources.

In contrast, a DEQ administrative law judge, ruling in a 1996 energy development case affecting the Jordan Valley, asserted that the public had no right to testify in a public hearing involving public lands. This is more than business as usual. Piece by piece, the Engler Administration has strategically transformed state government:

• By executive order, the Governor in 1991 eliminated a number of citizen oversight committees that participated in managing the state's program for public health and environmental protection.

• Also by executive order that year, the Governor sharply diminished the Natural Resources Commission's authority in its oversight of the DNR.

• In 1994, the Governor's Office ordered state agencies to disregard a requirement for the Legislature to review new regulations.

• In September 1995, the Governor negotiated a $94 million settlement in a 'takings' case involving oil and gas drilling in the Nordhouse Dunes Wilderness.

• In October 1995, the Governor split the DNR in half, establishing the Department of Environmental Quality, and naming as its director a zealous anti-regulation advocate.

• At the Governor's urging, the Legislature in 1996 amended the state Freedom of Information Act to prevent disclosure of certain public documents. Now it is much more difficult for the public to gain access to information about state regulatory decisions.
As the property rights movement has become more established in Michigan, the flaws in its reasoning and the dangers of its extremist approach are becoming apparent.

And while the Engler Administration has taken pains to portray the state government realignment as a bonus for the little guy, the actual beneficiaries are a select group of development interests.

* In Antrim County, the DEQ is backing an oil company's plan to install natural gas wells, pipelines, waste pits, and compressor stations on thousands of acres of private land, against the will of the property and mineral owners.

These land owners have pleaded with the Engler Administration and the DEQ for help in addressing what they see as a clear cut seizure of their property rights by an oil company and the state. Their requests have been ignored in Lansing.

* In Manistee County, the DEQ has allowed drilling in residential areas of natural gas wells that contain high concentrations of hydrogen sulfide, a poisonous chemical.
(continued on next page)

Michigan Land Use Institute

148 E. Front Street, Suite 301
Traverse City, MI 49684-5725
p (231) 941-6584 
e comments@mlui.org