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E-M:/ MI Supreme Court Victory on Takings

Enviro-Mich message from "Alison Horton, Sierra Club-Michigan" <sierrami@sojourn.com>


Finally...some great news that the tide is turning in Michigan on
environmental takings law.  

The Michigan Supreme Court issued a unanimous decision on Tuesday, March
24th in the K&K Construction case, reversing a Court of Appeals ruling and
remanding the case to the trial court to require a reevaluation under the
traditional takings law balancing test.  This is the lawsuit in which K&K
Construction sued the DNR for denial of a permit to develop wetlands in
Oakland County

A quick skimming of the court's 21 page decision reveals that the Supreme
Court found that the lower courts were in error in determining that
Michigan's Wetlands Protection Act had effectively eliminated the
economically viable use of the developers' land.  The Supreme Court states
that it is clear that there was not a categorical taking of economic value.
 The Court also reaffirms that the state has a legitimate interest in
protecting wetlands.

The Court does remand the case to the trial court, saying that the record
is inadequate and that the trial court must reevaluate the case under the
traditional 3-part balancing test based on the value and economic viability
of the property as a whole -- to determine whether the effect of the
regulations on the entire property resulted in a taking under the balancing

The Attorney General's lead attorney on this case, Skip Pruss, and the many
Michigan and national environmental organizations that filed briefs seeking
to overturn the deeply flawed Court of Appeals ruling on K&K can be proud
of their very considerable effort in seeking reversal.

Alison Horton
Sierra Club - Mackinac Chapter

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