City of Novi v. Robert Adell Children's Funded Trust

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 20, 2005

CITY OF NOVI,

Plaintiff-Appellant,

v No. 122985

ROBERT ADELL CHILDREN'S FUNDED TRUST,
FRANKLIN ADELL CHILDREN'S FUNDED TRUST,
MARVIN ADELL CHILDREN'S FUNDED TRUST,
AND NOVI EXPO CENTER, INC.,

Defendants-Appellees.
_______________________________

BEFORE THE ENTIRE BENCH

TAYLOR, C.J.

In this land condemnation case where the city of Novi

is attempting to take private property to construct a road,

the first issue is whether the requirement of a public use,

under Const 1963, art 10, § 2, is met when the proposed

road will be available for use by the public but will be

primarily used by a private entity that has contributed

funds to the project. We conclude that such a road does

qualify as a public use. The second issue is whether,

under MCL 213.56, a court can find the city has abused its
discretion in determining there is a public necessity for

the condemnation when the city has not considered

alternatives to the taking. We conclude that a failure of

the city to consider alternatives was not an abuse of its

discretion. Because the Court of Appeals incorrectly

decided that the proposed road was not a public use, we

reverse that decision. We also find no fraud, error of

law, or abuse of discretion in the city’s determination

that there exists a public necessity to take defendants’

property for the proposed project. Accordingly, we remand

this matter to the trial court for entry of summary

disposition in favor of plaintiff.

I

For many years traffic congestion at the intersection

of Grand River Avenue and Novi Road in the city of Novi was

a concern to the city because it represented a growing

traffic hazard. As early as 1984 a study recommended a

“ring road” around the intersection to relieve traffic

congestion and provide access to vacant land not fronting

on Grand River Avenue or Novi Road. The study also

recommended a road, referred to here as the “spur road,”

from the northwest side of the ring road, that would access

industrial establishments that were then accessed from

Grand River Avenue. The study recommended the spur road

2

because the employee traffic from the industries with

access on Grand River Avenue was resulting in frequent

accidents. The study noted that, but for “the need to

resolve [this] critical traffic problem,” the northwest

quadrant of the ring road project “may have been abandoned

altogether.”

Wisne Corporation was one of the industrial entities

that would be served by the spur road.1 The new spur road

was to traverse property owned by defendants, even though

Wisne Corporation owned property that could possibly be

used for a new access road. Wisne at one point agreed to

pay $200,000 toward the funding of the spur road, and the

road was to be named A.E. Wisne Drive.

In August 1998, the Novi City Council passed

resolutions declaring the necessity for taking defendants’

property for the purpose of creating A.E. Wisne Drive.

Plaintiff filed a condemnation complaint in September 1998

pursuant to the Uniform Condemnation Procedures Act, MCL

213.51 et seq.

Defendants filed a motion challenging the public

purpose and necessity of the taking, pursuant to MCL

1
Wisne Corporation changed ownership and its name
several times over the years.

3

213.56. Defendants claimed that the taking was for the

private purpose of benefiting Wisne, pointing out Wisne’s

financial support for the road and documents referring to

the benefit Wisne would receive from the road. Defendants

did not deny that the public would use the street. Rather,

the thrust of defendants’ argument was that the road was

planned to primarily serve private entities and that the

city wanted to include it in the plans because the funding

Wisne agreed to provide would entitle the city to obtain

state funding for the rest of the ring road project.

Defendants also alleged that the taking was not necessary,

and that the city exceeded its authority because the

enabling legislation that gave it authority to condemn did

not permit it to take property from one private owner and

transfer it to another private owner.

In 1999, the trial court held a three-day evidentiary

hearing and bench trial, during which a dozen witnesses

testified. The parties stipulated that the existing access

drive used by Wisne was hazardous and that it was going to

be eliminated as a result of part of a bridge improvement

4

project undertaken by the Oakland County Road Commission on

Grand River Avenue.2

The circuit court concluded that the proposed taking

was unconstitutional. The court applied the heightened

scrutiny test set forth in Poletown Neighborhood Council v

Detroit, 410 Mich 616; 304 NW2d 455 (1981),3 concluding that

although the project “further[ed] a benefit to the general

public,” it benefited a specific, identifiable, private

interest, and this private benefit predominated over the

benefit to the general public. Although the trial court

did not expressly say so, presumably it found that under

Poletown such a predominant private benefit removed the

project from the realm of constitutional, public uses.

Without further explanation, the court then held that

“Plaintiff City’s actions evidence a lack of public

necessity by fraud, error of law and/or abuse of

discretion,” and thus the proposed taking was

unconstitutional.

2
Despite eliminating Wisne’s access drive, the Oakland
County Road Commission did not develop a new access road
off Grand River Avenue, relying instead on the access that
was to be provided by the planned A.E. Wisne Drive.
3
On July 30, 2004, Poletown was overruled by this
Court in Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765
(2004).

5

 In analyzing plaintiff’s appeal, the Court of Appeals

also relied on Poletown, recognizing that it was bound to

do so. 253 Mich App 330, 343; 659 NW2d 615 (2002). It

noted that both the majority opinion and Justice Ryan’s

dissent in Poletown regarded the concept of public

necessity as being separate and distinct from that of

public use or public purpose. Although it found that the

trial court had erred by conflating the two concepts, the

Court found this error harmless because it agreed with the

trial court that the private interest predominated over the

public interest, making the proposed taking

unconstitutional. The Court found the public benefit to be

“speculative and marginal” and the private interest

“specific and identifiable,” primarily to the benefit of

Wisne. It affirmed the judgment of the trial court,

concluding that, under the Poletown heightened scrutiny

test, plaintiff failed to show the project was a public

use.

We granted the city of Novi’s application for leave to

appeal after issuing our decision in Wayne Co v Hathcock,

471 Mich 445; 684 NW2d 765 (2004). 471 Mich 889 (2004).

II

Under the Michigan Constitution, private property

shall not be taken for public use without just

6

compensation. Const 1963, art 10, § 2. This provision

precludes condemnation of private property for private use,

even though some “public interest” may be said to be served

by such private use. Hathcock, supra at 472; Portage Twp

Bd of Health v Van Hoesen, 87 Mich 533; 49 NW 894 (1891).

We review de novo the question whether a proposed taking is

constitutional. Hathcock, supra at 455.

The statutes under which plaintiff was proceeding are

the Home Rule City Act, MCL 117.1 et seq., and the Uniform

Condemnation Procedures Act, MCL 213.51 et seq. The former

authorizes plaintiff to condemn private land for boulevards

and streets, among other uses, MCL 117.4e, and the latter

provides the procedures plaintiff must follow for

condemnation. Defendants’ challenge to the proposed taking

was made pursuant to MCL 213.56, which allows the owner of

the property to be taken “to challenge the necessity of

acquisition of all or part of the property for the purposes

stated in the complaint” by filing a motion asking that the

necessity be reviewed. MCL 213.56(1). The statute also

provides that when the proposed taking is by a public

agency, “the determination of public necessity by that

agency is binding on the court in the absence of a showing

of fraud, error of law, or abuse of discretion.” MCL

213.56(2). We review the trial court’s factual findings

7

for clear error, but its legal conclusions are reviewed de

novo. Federated Publications, Inc v City of Lansing, 467

Mich 98, 106; 649 NW2d 383 (2002).4

III

There does not appear to be any dispute that

plaintiff, in its charter, has claimed for itself the

condemnation powers granted it by the Legislature under the

Home Rule City Act. The act authorizes plaintiff to take

private property for the purpose of a public road. MCL

117.4e. Defendants also do not question that the ring road

part of the project is a public road. The heart of this

case is whether the spur road part of the project

constitutes a private use requiring rejection of part or

all of the road project. Plaintiff asserts that the

planned spur road is a public use and that defendants have

not successfully challenged the necessity of the project.

We agree.

This Court recently clarified Michigan’s law

concerning public use in Hathcock, supra. However, we

4
Cases stating that the trial court’s determinations
in condemnation cases are reviewed for clear error are
correct only to the extent that this standard applies to
factual findings. See, e.g., City of Troy v Barnard, 183
Mich App 565, 569; 455 NW2d 378 (1990); Nelson Drainage
Dist v Filippis, 174 Mich App 400, 403; 436 NW2d 682
(1989).

8

declined to provide a “single, comprehensive definition of

‘public use . . . .’” Hathcock, supra at 471. We

overruled Poletown’s heightened scrutiny test because it

violates our Constitution, and instead set forth the three-

factor test proposed by Justice Ryan in his dissenting

opinion in Poletown. Under Hathcock, when land condemned

by a public agency is transferred to a private entity, we

do not weigh the relative benefits but instead analyze the

facts to see if any of three conditions are met.5 However,

such a transfer of property is not proposed here; the city

will retain ownership of the land. Thus, although Hathcock

informs us that we are not to use Poletown’s heightened

scrutiny test, it does not provide us with the elements to

apply when the public agency retains ownership and control.

Plaintiff urges us to hold that any road project is

unquestionably a public use. In Poletown, supra at 672,

Justice Ryan quoted Rindge Co v Los Angeles Co, 262 US 700,

706; 43 S Ct 689; 67 L Ed 1186 (1923), where the United

5
Under Hathcock, the transfer of condemned property to
a private entity may be appropriate where: (1) “‘public
necessity of the extreme sort’” requires collective action;
(2) the property remains subject to public oversight after
the transfer to the private entity; or (3) the property is
selected because of “‘facts of independent public
significance,’” rather than the interests of the private
entity receiving the property. Hathcock, supra at 476,
quoting Poletown, supra at 674-681 (Ryan, J., dissenting).

9

States Supreme Court said, “‘That a taking of property for

a highway is a taking for public use has been universally

recognized, from time immemorial.’” However, we agree with

defendants that the single fact that a project is a road

does not per se make it a public road.

In Rogren v Corwin, 181 Mich 53, 57-58; 147 NW 517

(1914), we explained that the difference between public and

private use in the context of roads

“depends largely upon whether the property
condemned is under the direct control and use of
the government or public officers of the
government, or, what is almost the same thing, in
the direct use and occupation of the public at
large, though under the control of private
persons or of a corporation . . . .” [Quoting
Varner v Martin, 21 W Va 534, 552 (1883).]

The Rogren Court continued quoting Varner for its

definition of when a road is a public road and when it is a

private road:

“All agree that, if the road has been
established by public authority, and the damages
for the condemnation of the land has been paid by
the general public, and the road is under the
control and management of public officers, whose
duty it is to keep it in repair, then it is a
public highway, and the legislature may
constitutionally authorize the condemnation of
land for the route of such a road, though it may
have been opened under such act by a county court
on the application of a single person to whose
house the road led from some public road, and
though it may not have been expected when the
road was established that it would be used to any
considerable extent by any person, except the
party for whose accommodation it was opened.”

10

 [Rogren, supra at 58, quoting Varner, supra at
554.]

Thus, according to Rogren, where the public body

establishes a road, pays for it out of public funds, and

retains control, management, and responsibility for its

repair, the Michigan Constitution allows private land to be

condemned for the project, no matter what the proportional

use of the road will be by the public or by private

entities.

Under the Rogren analysis, the spur road proposed by

plaintiff is a public use. Plaintiff initiated the project

in response to the growing traffic problems in the area.

Ownership, control, and maintenance will remain with that

public body. The public will be free to use and occupy the

spur, and although Wisne may be the primary user of the

spur, “[i]t is the right of travel by all the world, and

not the exercise of the right, which constitutes a way a

public highway.” Road Dist No 4 v Frailey, 313 Ill 568,

573; 145 NE 195 (1924). Wisne is to be granted no interest

in the property and will have no ability to control use of

or access to the road. We therefore find the proposed

project a public road, and thus a public use.

We do not find the fact that Wisne was expected to

contribute to the funding of the road dispositive of the

11

question of public use. “The fact that a private

individual pays for the right of way does not change the

character of the road.” Id. at 574. See also 2A Nichols,

Eminent Domain (3d ed), § 7.03[5][e], p 7-51. The county’s

role in the hazardousness of the original driveway, and in

its removal, is also not relevant. In sum, when the public

body that establishes a road retains ownership and control

of it, and the public is free to use and occupy it, that

proposed use is a public use.

Therefore, in accord with the characteristics of

public use identified in Rogren, the project proposed by

plaintiff is a public use. The lower courts erred in

applying the Poletown test to this case because no property

interest is being transferred to a private entity and

because, even if there were such a transfer, Hathcock’s

three-factor test would apply, rather than Poletown’s

heightened scrutiny test.6

IV

Defendants also have challenged the proposed taking on

the basis of public necessity. It is required pursuant to

6
We note that the Court of Appeals attempted to apply
such a test by looking to Justice Ryan’s Poletown dissent.
However, the test applies when there is a transfer of
property to a private entity, which did not occur here.

12

MCL 213.56 that there be a public necessity for the taking

to be permitted. Specifically, there must be a necessity

for the taking “of all or part of the property for the

purposes stated in the complaint . . . .” MCL 213.56(1);

State Hwy Comm v Vanderkloot, 392 Mich 159, 175; 220 NW2d

416 (1974). Yet, pursuant to the statute, the

determination of necessity is left not to the courts but to

the public agency, which in this case is the city. The

only justiciable challenge following the agency’s

determination is one based on “fraud, error of law, or

abuse of discretion.” MCL 213.56(2). None of these bases

is shown to exist here.7

Fraud does not provide defendants a basis for relief

in this case because the requisite elements are not

supported by the record.8 Moreover, under the Home Rule

7
We agree with the dissent that we first must review
the trial court’s decision on this issue for clear error.
Post at 17. However, the trial court’s conclusion that the
project was not necessary was clearly based on an erroneous
legal theory (i.e., that there was no public use and thus
no necessity). Moreover, both parties assured the Court at
oral argument that the record was sufficient for us to make
a determination on the necessity issue without a remand.
8
The elements of fraud are: (1) that the charged party
made a material representation; (2) that it was false; (3)
that when he or she made it he or she knew it was false, or
made it recklessly, without any knowledge of its truth and
as a positive assertion; (4) that he or she made it with
(continued…)

13

City Act, plaintiff has the legal authority to condemn this

land for a public road, so it has not made an error of law.9

We are left to review whether plaintiff abused its

discretion in determining that plaintiff’s property was

necessary to complete this project.

An abuse of discretion occurs when an unprejudiced

person considering the facts upon which the decision was

made would say that there was no justification or excuse

for the decision. Gilbert v DaimlerChrysler Corp, 470 Mich

749, 761-762; 685 NW2d 391 (2004). Discretion is abused

when the decision results in “an outcome falling outside

this principled range of outcomes.” People v Babcock, 469

Mich 247, 269; 666 NW2d 231 (2003). Here, defendants’

objections to the necessity of taking their property for

the proposed road are based on the assertion that the city

(…continued)
the intention that it should be acted upon by the other
party; (5) that the other party acted in reliance upon it;
and (6) that the other party thereby suffered injury.
Scott v Harper Recreation, Inc, 444 Mich 441, 446 n 3; 506
NW2d 857 (1993). Defendants at most have asserted that
plaintiff made “untrue” statements and behaved in an
“unseemly” manner. Nowhere does the record show any
reliance or injury resulting from these acts.
9
Defendants claim that plaintiff’s condemnation
complaint is not supported by appropriate enabling
legislation. This claim is based on the assertion that
plaintiff is not authorized to take private land for a
private use. Because we conclude that the road is a public
use, defendants’ argument is without merit.

14

never considered any alternatives and that reasonable

alternative locations were available. Even if that were

so, such facts would not remove the proposed road from the

“principled range of outcomes.”10 The city’s decision-

making process is not what we review; rather, we look at

the resulting outcome. The city is not obligated to show

that its plan is the best or only alternative, only that it

is a reasonable one.11 The dissent’s insistence that

plaintiff has the burden of proving necessity is clearly

contrary to the deference the Legislature requires of us.

The statute not only limits the grounds for reversal and by

its language places that burden on defendants, but also

10
Although defendants contend that plaintiff could
have built an alternative to the proposed Wisne drive on
land actually owned by Wisne, the record indicates that
such an alternative would still have exited onto Grand
River Avenue. We note in passing that such an
“alternative” would likely have defeated the purpose of
relocating the access road, because it would have done
nothing to eliminate the “critical traffic problem” posed
by the exit onto Grand River Ave.
11
In Vanderkloot, supra at 172-173, we identified
numerous factors that might play a role in determining the
routing of a road, including “comparative costs of
construction, directness, comparative costs of maintenance,
safety, probable amount of travel, convenience, topography,
aesthetics, etc.” That is why these legislative
determinations are entitled to a highly deferential
standard of judicial review, and will not be disturbed
except where there is evidence of fraud, error of law, or
an abuse of discretion.

15

allows only thirty days between when defendants file a

necessity motion and when the hearing is held, implicitly

limiting discovery on the issue. MCL 213.56. The

Legislature adds a final hurdle for defendants by

permitting appellate review of the trial court’s decision

only by leave granted. MCL 213.56(6). Because defendants

have not shown that the proposed route of the public road

is outside the zone of reasonable alternatives, we find

plaintiff did not abuse its discretion in determining that

the taking of defendants’ property is necessary for the

ring road project.

V

In his dissent, Justice Cavanagh sua sponte raises the

question of mootness,12 concluding that the city does not

12
Where the facts of a case make clear that a
litigated issue has become moot, a court is, of course,
bound to take note of such fact and dismiss the suit, even
if the parties do not present the issue of mootness.
“‘“Courts are bound to take notice of the limits of their
authority, and a court may, and should, on its own motion,
though the question is not raised by the pleadings or by
counsel, recognize its lack of jurisdiction and act
accordingly by staying proceedings, dismissing the action,
or otherwise disposing thereof, at any stage of the
proceeding.”’” Daniels v Peterson, 462 Mich 915, 917-918;
615 NW2d 14 (2000) (Kelly, J., dissenting) (quoting Fox v
Univ of Mich Bd of Regents, 375 Mich 238, 242; 134 NW2d 146
[1965], quoting In re Fraser Estate, 288 Mich 392, 394; 285
NW 1 [1939]). Because “‘[t]he judicial power . . . is the
right to determine actual controversies arising between
(continued…)

16

intend to pursue this project. To make this argument, he

relies exclusively on the colloquy at oral argument. While

we do not think that that argument supports his conclusion,

which we will discuss below, a brief review of the basic

principles of mootness law also shows that it is premature

to declare this matter moot.

When a complaint is filed and an actual injury is

alleged, a rebuttable presumption is created that there is

a genuine case or controversy. See Nat’l Wildlife

Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 631;

684 NW2d 800 (2004). The case may be dismissed as moot if

the moving party satisfies the “heavy burden” required to

demonstrate mootness. MGM Grand Detroit, LLC v Community

Coalition for Empowerment, Inc, 465 Mich 303, 306; 633 NW2d

357 (2001), citing Los Angeles v Davis, 440 US 625, 631; 99

S Ct 1379; 59 L Ed 2d 642 (1979). If such a motion is

brought, “the plaintiff must further support the

allegations of injury with documentation” and must

sufficiently support its claim if it goes to trial. Nat’l

Wildlife, supra at 631.

(…continued)
adverse litigants,’” Anway v Grand Rapids R Co, 211 Mich
592, 616; 179 NW 350 (1920) (citation omitted), a court
hearing a case in which mootness has become apparent would
lack the power to hear the suit. This is not such a case.

17

 These procedural requirements are entirely lacking in

this case at this time. No motion or other pleading has

claimed mootness and there has been no “support” so as to

meet any burden, much less the “heavy burden” required to

demonstrate mootness.

Notwithstanding this, the dissent evidently feels that

the record here is sufficient so that we sua sponte can

proceed. We think the record cannot support that

conclusion. The dissent, relying entirely on the oral

argument here, infers that several statements by

plaintiff’s counsel support a finding of mootness. The

essence of the first statement made in response to Justice

Corrigan’s query about whether the ring road part of the

project could be split off was that it could not because

plaintiff did not want the project built piecemeal. This

does not indicate abandonment; rather, it refers to a

desire to consolidate all parts of the project before

getting underway. Certainly in the absence of

contradictory evidence, of which none has been presented,

the draconian reading given by the dissent is unwarranted.

The second claim is that the plaintiff, in rebuttal

argument, failed to “contest or deny that there are

currently no plans to pursue the project.” Post at 4.

Yet, plaintiff had no reason to respond in such a way

18

because the defense counsel did not say the city had no

intention of completing the spur road for which defendants’

property was being condemned; he merely said the ring road

project, with its rescinded state funding, was “gone.”

This appears to be nothing more than a reference to the

lapse of funding, which happens invariably when there is

extended litigation. With this understanding, a rebuttal

would not, for a person conversant with this process, call

for a full vindication of continued interest in the whole

project. Thus, that one did not come is unexceptional and

in no event establishes mootness.

Finally, the dissent faults plaintiff for its response

to the defense counsel’s observation that the reason

plaintiff continued the litigation was because it wants a

rule of law reversing the decision of the Court of Appeals.

How surprising is it that an appellant would concede that

it wanted the Court of Appeals decision reversed? Not

very, we believe. Surely it says nothing about mootness.

We conclude therefore that plaintiff’s complaint is a

matter of current controversy because there is no evidence

here presented, indeed only defendants’ speculation, that

plaintiff would not proceed with the condemnation upon

prevailing in this Court. On remand, should the defendants

conclude that mootness actually is an issue, they can raise

19

it in the normal course and let the trial court determine

if they have met their burden. Such has not been shown on

the record before us, and thus we conclude that this matter

is not moot and is appropriate for adjudication.

VI

We hold that the proposed road and spur are for a

public use, and therefore the proposed condemnation does

not violate Const 1963, art 10, § 2. We also hold that

plaintiff’s determination that defendants’ property is

necessary to complete the ring road project does not

violate the UCPA because it does not indicate fraud, error

of law, or an abuse of discretion. Accordingly, the

decisions of the Court of Appeals and the circuit court are

reversed, and this matter is remanded to the circuit court

for further proceedings not inconsistent with this opinion.

Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

20

 S T A T E O F M I C H I G A N

SUPREME COURT

CITY OF NOVI,

Plaintiff-Appellant,

v No. 122985

ROBERT ADELL CHILDREN'S FUNDED TRUST,
FRANKLIN ADELL CHILDREN'S FUNDED TRUST,
MARVIN ADELL CHILDREN'S FUNDED TRUST,
AND NOVI EXPO CENTER, INC.,

Defendants-Appellees.
_______________________________

WEAVER, J. (concurring).

I concur in the majority opinion that the road

proposed by the city of Novi is a public use under Const

1963, art 10, § 2 and private property may be condemned for

the construction of the road because the road will be

established, paid for, and controlled and managed by a

public body and because the public at large will be able to

use the road. See Rogren v Corwin, 181 Mich 53, 57-58; 147

NW 517 (1914).

The majority correctly notes that this case does not

involve the transfer of private property through the

exercise of eminent domain from one private entity to

another and thus is not controlled by this Court’s recent

decision in Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765
(2004). But then the majority suggests that the lower

courts also erred because if there had been such a

transfer, the lower courts should have applied Hathcock’s

three-factor test. Ante at 12. However, because the lower

courts’ decisions in this case preceded this Court’s

decision in Hathcock, the lower courts could not have erred

by not applying Hathcock. Id.

I also concur in the majority opinion that the city of

Novi did not commit fraud, an error of law, or abuse its

discretion when it declared that the condemnation of the

property in question was necessary under MCL 213.56.

Finally, I agree with the majority that the case

before us is not moot and that this Court cannot avoid

addressing the constitutional and statutory questions

presented on the basis of the dissent’s assumption that the

proposed road project will not proceed. However, I do not

join the majority’s purported “review of the basic

principles of mootness law . . . . ” Ante at 17. The

majority does not in fact review Michigan’s law regarding

moot cases. Instead, the majority imports a discussion of

subject-matter jurisdiction requirements from a case that

involved standing. See Nat’l Wildlife Federation v

Cleveland Cliffs Iron Co, 471 Mich 608, 631; 684 NW2d 800

(2004). As I stated in my opinion concurring in the result

2

only in Nat’l Wildlife, the cited discussion had little to

do with the question of standing that was at issue in Nat’l

Wildlife. The cited discussion similarly has little

relevance to the question whether the issues presented in

this case are moot.

Elizabeth A. Weaver

3

 S T A T E O F M I C H I G A N

SUPREME COURT

CITY OF NOVI,

Plaintiff-Appellant,

v No. 122985

ROBERT ADELL CHILDREN'S FUNDED TRUST,
FRANKLIN ADELL CHILDREN'S FUNDED TRUST,
MARVIN ADELL CHILDREN'S FUNDED TRUST,
AND NOVI EXPO CENTER, INC.,

Defendants-Appellees.
_______________________________

CAVANAGH, J. (dissenting).

I respectfully dissent from the majority opinion.

This matter is moot and, consequently, we are without

authority to decide it. With regard to the majority’s

substantive analysis, the majority erroneously decides a

matter that should first be addressed by the trial court.

Further, by improperly diminishing the degree of inquiry

that should be made into the city’s condemnation decision,

the majority erroneously concludes that the city’s taking

met the standard for public necessity.

I. MOOTNESS
“The principal duty of this Court is to decide actual

cases and controversies.” Federated Publications, Inc v

City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002),
citing Anway v Grand Rapids R Co, 211 Mich 592, 610; 179 NW

350 (1920). “To that end, this Court does not reach moot

questions or declare principles or rules of law that have

no practical legal effect in the case before us unless the

issue is one of public significance that is likely to

recur, yet evade judicial review.” Id., citing Anway,

supra at 610, and In re Midland Publishing Co, Inc, 420

Mich 148, 152 n 2; 362 NW2d 580 (1984).

Today the majority grants the city’s request for entry

of a judgment on its condemnation suit, despite the fact

that the relief granted has no practical legal effect on

the parties to this claim. The city sued to condemn

defendants’ land so that it could pursue a particular

project. As identified in its condemnation complaint, the

city’s project involved constructing a ring road and a

connecting spur, the latter of which was designed to rest

on defendants’ property.1 A review of both parties’

statements of facts in their briefs to this Court reveal

that the funding for the ring road project was rescinded by

the funding agency in 1999. In the briefing, there is

1
The parties’ nomenclature for the whole project is
the “ring road project.” The majority’s assertion, ante at
19, that plaintiff represented “merely” that the “ring road
project” was gone, and this meant that the spur road
portion is still pending, is not borne out by the facts.

2

nothing declaring, and nothing from which to infer, that if

the city prevails on its condemnation claim, it has the

present ability and the present intent to pursue the

originally intended project.

At oral argument, this Court made several inquiries

regarding the project’s status and the potential mootness

of this appeal. First, Justice Corrigan asked whether

there was any reason why this Court could not issue an

order allowing the ring road portion of the project to

proceed while the spur portion of the project was still

under consideration. Counsel for the city responded:

We are now, Your Honor, several years
removed from the road project. This was not a
piecemeal kind of project. Part of the reason
for the industrial spur, for example was that the
Ring Road where it was proposed to connect to
Grand River would have been too close to this
driveway on Grand River that currently served the
Wisne property. That was one of the reasons to
have the industrial spur. [Emphasis added.]

Counsel elaborated, “It was difficult at the trial and

in addition now, 6 years, 7 years removed from when the

project was started, the project itself has kind of been

uncertain.” (Emphasis added.)

During defense counsel’s argument, Justice Kelly

asked:

You began to develop an idea and you didn’t
complete it because you were interrupted. Were

3

 you telling us that when Wisne was sold the whole
project became uninteresting to the city?

Counsel replied:

It is gone forever and what [counsel for the
city] will tell you probably because he has to is
that maybe someday it will get built. The
reality of the situation, and there were
depositions on this point, that Ring Road is
gone. And the driveway that they are proposing
now would extend to nothing. [Emphasis added.]

Interestingly, on rebuttal, counsel for the city did

not contest or deny that there are currently no plans to

pursue the project. Rather, he attempted to proffer

alternative reasons why this Court should decide this case:

Very briefly, and I’ll stay within the two
minutes, the question was raised kind of a
mootness kind of question. Here is the city’s
response on that. It is true that we have a
published Court of Appeals opinion that we think
is very much wrong on the issue of public use and
what the standard of review is with regard to
public use in this kind of case. It’s relevant
not just for the future and how trial courts are
going to apply it, it’s relevant to this case
with regard to is there a responsibility for the
attorney fees that were incurred on behalf of the
property owner if that case is not dealt with and
found to have been correct or incorrect, so there
is a reality for this case that needs to be dealt
with. It’s not moot. [Emphasis added.][2]

2
It is not surprising at all that counsel for
plaintiff wants this Court to reverse the decision of the
Court of Appeals. See ante at 19. What is surprising is
that counsel for plaintiff offered nothing more than this
desire in response to the questions that were raised
regarding mootness.

4

 Our jurisprudence regarding mootness has been

established for well over a century. There is no question

but that a court “‘will not take jurisdiction, unless it

can afford immediate relief, and certainly will not

undertake, where there is no matter in dispute, to declare

future rights.’” Anway, supra at 609, quoting Woods v

Fuller, 61 Md 457, 460 (1884), citing Heald v Heald, 56 Md

300 (1881). “‘It will never undertake to decide upon and

determine a contingency that may never arise, unless such

determination is necessary for the decision of some

immediate relief to be granted, and which the court can

enforce by a decree.’” Id. at 609-610, quoting Woods,

supra at 460 (emphasis added). “‘Where a complainant has

sustained no injury and the object of the action is merely

to obtain a declaration as to the constitutionality of a

legislative act, the question presented to the court is

merely an abstract one and the action will be dismissed.’”

Id. at 610, quoting Hanrahan v Buffalo Terminal Station

Comm, 206 NY 494, 504; 100 NE 414 (1912) (emphasis added).

Counsel for the city expressly stated that relief is

sought in this case not because the city intends to pursue

the road project, but to overturn what it perceives as an

erroneous Court of Appeals opinion and to render guidance

5

for trial courts addressing this issue in the future.3 We

are constitutionally proscribed from granting declarations

of this sort, despite whether the mootness inquiry

originates from a party. See id.; see also Sibron v New

York, 392 US 40, 57; 88 S Ct 1889; 20 L Ed 2d 917 (1968)

(recognizing the constitutional genesis of the mootness

doctrine). In many instances, both parties may strongly

desire a court ruling, despite the moot nature of the case.

But where the ruling is purely advisory and has no effect

on the parties’ rights, a court is without jurisdiction to

entertain the claim. Thus, the majority’s puzzlement over

the dissent’s effort to address mootness is puzzling in and

of itself.

Although it has been aptly recognized that it “is

assuredly frustrating to find that a jurisdictional

impediment prevents us from reaching the important merits

[of the] issues that were the reason for our agreeing to

hear [a] case,” it is simultaneously true that we

nonetheless “cannot ignore such impediments for purposes of

our appellate review without simultaneously affecting the

principles that govern district courts in their assertion

3
Such a reading is hardly “draconian.” See ante at
18.

6

or retention of original jurisdiction.” Honig v Doe, 484

US 305, 341-342; 108 S Ct 592; 98 L Ed 2d 686 (1988)

(Scalia, J., dissenting). See also the collection of cases

noted in City of Warren v Detroit, 471 Mich 941 (2004)

(Markman, J., concurring).

The city, having failed to confirm or present any

supporting facts that it is currently pursuing the road

project for which this taking was ostensibly required,

leaves us no choice but to declare that there is simply no

controversy remaining and no relief available to the

parties. It is unfortunate that the majority does not

recognize this. Instead, the majority remands this case

for entry of a judgment that the city can condemn

defendants’ property. But that judgment is meaningless.

The basis for the city’s condemnation complaint, in which

it declared that it required defendants’ property for its

ring road project, simply no longer exists because the

project is defunct. As defense counsel noted, constructing

the spur on defendants’ property would be an exercise in

futility because there is no ring road with which to

connect it. Consequently, the trial court will enter

judgment on the city’s condemnation complaint, but the only

effect of that judgment will be that the city will know

that, if, at some time in the future it decides to pursue

7

the road project, it has a Supreme Court advisory opinion

in its favor.

Because of the tremendous restrictions a potential

taking puts on a property owner’s ability to use or dispose

of his land, the city should not get the benefit, and

defendants should not get the detriment, of today’s ruling.

In Horton v Redevelopment Comm’n of High Point, 262 NC 306;

137 SE2d 115 (1964), a concurring justice of the North

Carolina Supreme Court commented on the appropriateness of

requiring a city to show that it has present intent and

present ability to begin and complete an urban

redevelopment project when the project involves taking

private property. The principles espoused in the justice’s

thoughtful analysis are equally applicable in the case at

hand, and bear repeating:

The urban redevelopment law and the
decisions of this Court have given ample notice
that the City must show present ability to
finance the project. This may be done by the use
of funds on hand derived from sources other than
taxation, or the City must have the present
authority to get the money by means other than by
pledging the credit of the City. This is so
because the filing of the plan prevents the owner
of the property from dealing with it as his own.
He cannot improve it, or rent it, or sell it,
except at the hazard of being ejected at the will
of the Commission. His property is virtually
frozen by the plan. The filing of a lawful plan
is equivalent to a restriction of the owner’s
right to use his property as of the date of the
taking of any interest therein. The law wisely

8

 provides that authorities may not acquire
property until the plan shows financial ability
to complete the project. The taking of private
property is in derogation of a common law right
of the owner, and the act which authorizes the
taking must be strictly construed. [Horton,
supra at 328 (Higgins, J., concurring).]

Likewise in this case, the majority’s ill-conceived

advisory opinion will place defendants’ property in a

perpetual state of uncertainty, thus effectively depriving

them of their common-law right to use their property as

they see fit. Despite that fact, the majority apparently

does not feel bound by the well-established principles set

out by both the United States Supreme Court and this Court

that dictate against reaching the merits of this claim.

The city’s request for this Court’s legal guidance to

combat what it alleges is an incorrect Court of Appeals

analysis is an insufficient basis on which to disregard the

moot nature of this claim. And because the majority

insists on issuing an opinion, its grant of “permission” to

the parties to raise this matter before the trial court is

too little, too late. Plaintiff gets what plaintiff wants:

an advisory opinion from this Court on public use and

necessity.

Further, the city’s plea for us to decide the matter

so that a determination regarding attorney fees can be made

is easily rejected. I am unaware of any such exception to

9

the mootness doctrine. Indeed, such an exception would

wholly obviate the doctrine because a party to a moot

appeal would invariably advance the argument that a

decision is required so that one party can seek attorney

fees.

Nor is it dispositive that neither party briefed the

mootness issue. Because of the constitutional dimensions

of jurisdiction, it is incumbent on this Court to identify

and reject moot claims even absent a party’s request for us

to do so. And it is ascertainable from the existing record

that this moot matter, while of arguable public

significance, is not susceptible to evading judicial

review. While the state funding agency required the city

to submit an explanation if the project had not moved

forward within two years, and reserved its right to rescind

the funding if progress was not being made, rescinding was

neither a requirement nor a foregone conclusion.4 And there

is no indication that the agency would have rescinded the

funding, rather than granting an extension because of a

pending lawsuit, had the city requested such an extension.

4
This is contrary to the majority’s assertion that a
“lapse of funding . . . happens invariably when there is
extended litigation.” Ante at 19 (emphasis added).

10

Thus, there is no sufficient showing that this case is the

sort that is “likely to recur, yet evade judicial review.”

Moreover, it is worth noting that in its grant

application, the city misrepresented that defendants had

agreed to donate the property on which the spur road would

be built. By misrepresenting defendants’ intention, the

city became entwined in a self-created dilemma. It had to

sue for condemnation to fulfill what it alleged was already

true, i.e., that property had been donated by the

community, and, at the same time, avoid exhausting the

funding agency’s patience. Rather than giving the city the

benefit of the doubt that, by virtue of a possible time

limitation, this case is likely to evade review, I would

simply suggest that a taking entity has any number of

alternative options available to it. For instance, it

could first condemn property and then apply for project

funding. Or it could forthrightly inform the agency that

condemnation is being pursued so the agency would be aware

that the lawsuit may bear on the project’s timing. But the

city cannot, as the majority will apparently allow, place

itself, by misrepresentation, in its present predicament

and obtain judgment on the merits where it has made no

showing that it would otherwise be continually precluded

from doing so.

11

 With respect to the majority’s statement that

defendants have come up with no evidence that the project

is not moving forward, I would simply point the majority to

the documentary evidence contained in the record, which

consists of letters discussing the funding withdrawal for

the road project. I believe that evidence, coupled with

the statements made at oral argument, should give the

majority pause.

Because I believe that the existing record

demonstrates that there is no present case or controversy,

no meaningful relief to be afforded the parties, and no

showing that this matter is likely to evade judicial

review, and because the inevitable result of deciding the

claim is to shackle defendants’ ability to freely use their

land, I would decline to exercise jurisdiction and dismiss

the city’s claim as moot.

II. PUBLIC NECESSITY
Because the majority insists on addressing the merits

of this moot claim and rendering an advisory opinion that

will now control the state of the law, I find it incumbent

on me to respond to its analysis.

The majority correctly recognizes that a trial court’s

realm of permissible inquiry in a condemnation case is

limited to whether a taking entity’s decision regarding

12

public necessity was based on fraud, an error of law, or an

abuse of discretion. MCL 213.56(2). The Court of Appeals

reviews the trial court’s determination regarding public

necessity for clear error. City of Troy v Barnard, 183

Mich App 565, 569; 455 NW2d 378 (1990); Nelson Drainage

Dist v Filippis, 174 Mich App 400, 403; 436 NW2d 682

(1989). Likewise, this Court may only reverse a decision

of the Court of Appeals if we find the decision clearly

erroneous. MCR 7.302(B)(5). Thus, it is our task to

determine whether the Court of Appeals clearly erred in

affirming the trial court’s decision.

Although the trial court concluded its written opinion

by stating that defendants “met their burden of showing

that Plaintiff City’s actions evidence a lack of public

necessity by fraud, error of law and/or abuse of

discretion,” the substance of its opinion demonstrates that

it analyzed not public necessity, but public use. The

paragraph preceding the trial court’s conclusion summarized

the basis for its ruling:

The Court does not dispute the fact that the
project proposed by the City of Novi furthers a
benefit to the general public. Nonetheless, the
Court is persuaded that Plaintiff City’s proposed
action will benefit a specific, identifiable
private interest and, therefore, the Court is
compelled to inspect with heightened scrutiny as
outlined by the Michigan Supreme Court in
Poletown Neighborhood Council v Detroit, 410 Mich

13

 616 [304 NW2d 455] (1981). The question thus
becomes whether the public interest is the
predominant interest being advanced; the public
benefit of which can be neither speculative nor
marginal, but clear and significant. Id. at 635.
Applying heightened scrutiny to the overwhelming
evidence before this Court, the Court finds that
the proposed industrial spur, A.E. Wisne Drive,
is primarily for the benefit of Wisne, which
benefit predominates over those to the general
public.

Thus, the trial court, despite erroneously citing the

standard of review for a public necessity challenge, found

that the city had not demonstrated that its condemnation

was for a public use. Having found so, it was unnecessary

for the trial court to inquire into public necessity.

Likewise, the Court of Appeals focused solely on public

use. Consequently, this Court is without the benefit of

any lower court findings on public necessity.5

Therefore, were this case not moot, I would first

agree with the majority that the Court of Appeals holding

that the taking was for a public use was clearly erroneous

for the reasons the majority states. But I would then

remand this case to the trial court and instruct it to

address defendants’ claim that the city’s determination of

5
The fact that the trial court based its decision
regarding public use on an erroneous legal theory, see ante
at 13 n 7, does not negate the fact that the trial court
made no findings regarding public necessity.

14

public necessity was made on the basis of fraud, error of

law, or abuse of discretion.

I would not foreclose defendants’ argument regarding

fraud on the basis that defendants showed no “reliance or

injury resulting from these acts.” Ante at 14 n 8. A

trial court cannot accept the taking entity’s assertion of

public necessity when that assertion was fraudulently made.

The record shows that plaintiff submitted a grant

application misrepresenting that defendants donated their

property toward the project. On the basis of that

misrepresentation, the state pledged the funding. When the

state granted the funding, plaintiff then had no choice but

to condemn defendants’ land. And in pursuit of the

condemnation, plaintiff claimed that the taking was

“necessary.” But plaintiffs’ assertion of necessity was

not grounded in a decision that the land in question was

“reasonably suitable and necessary” for the project and

that this particular piece of property, rather than some

other, was required. See State Hwy Comm v Vanderkloot, 392

Mich 159, 176-177; 220 NW2d 416 (1974). Its assertion was

15

made because plaintiff had to make good on its

misrepresentation.6

Last, I wholeheartedly disagree with the amount of

deference the majority affords the government in

determining that the taking of a particular piece of

property is necessary. As stated, the precise legal

question is whether, to complete the project, the

government needs all the property involved or needs one

particular piece of property rather than some other

property. Vanderkloot, supra at 176-177. That review

encompasses variables such as “whether the land in question

is reasonably suitable and necessary for the ‘improvement’

and whether there is the necessity for taking particular

property rather than other property for the purposes of

accomplishing the ‘improvement.’” Id. at 177-178.

Necessarily, then, there must be some factual demonstration

that would allow a court to determine whether an agency

abused its discretion in condemning a particular piece of

property.

6
Defendants need not claim that plaintiff directly
defrauded defendants. Such a task would be difficult in a
condemnation case, in which a decision regarding necessity
is presumably made before a private property owner even
knows of a looming condemnation. Rather, a trial court
must determine whether a plaintiff’s assertion of necessity
was, in a general sense, fraudulently made.

16

 With regard to public necessity, the majority’s first

analytical error is in failing to properly apply the clear

error standard. City of Troy supra at 569; Nelson

Drainage, supra at 403. Where the trial court did not

reach the issue of necessity, it is impossible to determine

whether its nonexistent findings were clearly erroneous,

despite whether the parties believe that the record is

sufficient for us to do so.7

In its next analytical error, rather than actually

assessing whether the facts demonstrate that the city even

undertook a necessity analysis, the majority concludes that

even if there were other suitable locations for the spur,

the decision to take defendants’ property was not outside

the “‘principled range of outcomes.’” Ante at 14, quoting

People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

But defendants presented evidence that the city did not

examine any range of outcomes, but rather fixated on this

particular piece of property to the exclusion of

considering other parcels or even alternatives to

condemnation.8 Thus, a conclusion that the city’s outcome

7
See also n 8 of this opinion.
8
The majority’s suggestion that one of defendants’
proposed alternatives—building the spur road on Wisne’s own
(continued…)

17

fell within an acceptable “range” is unsupportable. The

majority’s overly deferential viewpoint permits a city to

prevail against a challenge to public necessity by simply

claiming that its taking of a particular piece of property

was, in fact, necessary. While deference to a taking

agency’s finding is certainly warranted, it cannot be said

that as long as an agency claims necessity, its decision

cannot be disturbed. Such an approach does not venerate

the constitutional principle on which the UCPA is based: a

taking can only occur on proof that the taking was both for

a public purpose and that the taking of a particular piece

of property was truly necessary.

This is especially true here, where defendants

presented evidence that, during the negotiation phase, they

proffered several alternatives to taking their property.

The city refused those avenues because to be eligible for

the funding it sought, some portion of the ring road

(…continued)
land—was unworkable because the spur still would have
exited onto Grand River is not useful to resolving the
abuse of discretion claim. As an initial matter, without
knowing the logistical details, I would not make a factual
determination that the alternative was unworkable. But
even if the alternative would not have sufficed, defendants
offered other alternatives as well. Invalidating one
alternative says nothing about whether other alternatives
were available, viable, and preferable to the drastic
measure of condemnation.

18

project had to consist of a “community donation.” The city

decided that to fulfill the community donation portion, it

would simply require defendants to unwillingly sacrifice

their land. Thus, the city never answered the question

whether the particular piece of property was necessary for

the purposes stated in its complaint, i.e., safety and

welfare. Rather, it is clear only that the taking was a

“necessary” means to an end.

The majority further states that “[t]he city is not

obligated to show that its plan is the best or only

alternative, only that it is a reasonable one.” Ante at

15. Again, a taking agency’s mere claim that the choice

was “reasonable” is not conclusive. When defendants

challenged public necessity, they put forth evidence that

there were alternatives to taking their particular piece of

property. Other than a road project plan that incorporated

defendants’ property, nothing in the record demonstrates

that the city chose defendants’ property in lieu of other

alternatives because other alternatives were inferior, or

because there were no available alternatives. Thus, the

city’s assertion of public necessity is bare. If it is

enough for the city to say that it needs a particular piece

of property and that its choice is a reasonable one,

judicial review of public necessity is essentially

19

foreclosed, and an abuse of discretion could never or only

rarely be found.

Under the majority’s rationale, a necessity hearing

hardly seems meaningful. The majority accuses my dissent

of reversing the burden of proof, but nothing could be

further from the truth. If the city is required to do no

more than sit back and assert public necessity, what, then,

is the hearing’s purpose? Generally, in civil matters, one

party begins with the burden of proof and must present

evidence in support of its position. The other party must

then somehow diminish, rebut, or contest that evidence with

evidence of its own. Only then can a trial court decide

which party should prevail under the appropriate standard.

But the majority’s position allows the following scenario.

A property owner disputes public necessity and requests a

hearing. At that hearing, the owner puts forth evidence

that, if believed, would support his claim that the taking

of his particular parcel was not necessary. The taking

entity rebuts the allegation not with evidence, but merely

by affirming that the taking was necessary. Under the

novel rule of law set forth by today’s majority, the taking

entity prevails, despite the fact that it produced nothing

more than an unsupported assertion of public necessity.

20

 This unquestioning ceding of power is not what was

contemplated by the constitutional or statutory

prohibitions against the unnecessary taking of private

property. Contrary to the majority’s position, a reviewing

court has an obligation to determine whether, in the face

of evidence to the contrary, the taking entity produced

evidence—not assertions—of necessity. And this is true

despite the fact that the burden of disproving necessity is

on the property owner. When a trial court must determine

whether there was an abuse of discretion, defendants raise

a compelling argument that the taking entity’s failure to

use any discretion at all is, in itself, an abuse of

discretion.

Were this case not moot, in the complete absence of

trial court findings on necessity, I would remand for the

trial court to determine whether the city’s decision to

take defendants’ property was based on fraud, error of law,

or an abuse of discretion.

III. CONCLUSION
The doctrine of mootness should preclude this Court

from reaching the merits of this claim. As such, the

city’s appeal should be dismissed. Moreover, the

majority’s public necessity analysis dilutes the power and

obligation of a reviewing court to protect a private

21

property owner from an unlawful taking by conferring

unchecked deference on a taking entity’s declaration of

necessity. Accordingly, I dissent.

Michael F. Cavanagh
Marilyn Kelly

22