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Michigan's Eminent Domain Laws and Property Rights

Property Rights in the State of Michigan

The State Constitution of Michigan confirms that “private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.” Michigan law defines just compensation as “the amount of money which will put the person whose property has been taken in as good a position as the person would have been and had the taking not occurred. The owner must not be forced to sacrifice or suffer by receiving less than full and fair value for the property. Just compensation should enrich neither the individual at the expense of the public nor the public at the expense of the individual.”

Takings of private property for public use often result in the complete disruption of a property or a business owner’s life. The property or business owner has done nothing wrong, other than to own property desired by a governmental agency or other entity possessing the power to rely on eminent domain to dispossess an individual of their property. To a certain degree Michigan law recognizes these injustices and has provided compensation in areas that many other states have not. For instance, if an individual’s principle residence is taken for a public use in Michigan, the Michigan Constitution commands that compensation for the taking shall not be less than 125% of that property’s fair market value, in addition to any other reimbursements allowed by law. Moreover, Michigan law also recognizes a business owner’s right to be paid business interruption damages resulting from the relocation of their business or, in the event that the business cannot be relocated, the owner is entitled to the going concern value of the business. Finally,  Michigan law requires a condemning agency to reimburse a property or business owner for reasonable attorney fees, as defined by Michigan Statute as well as necessary expert fees which are reasonably necessary to allow the owner to prepare his case.

Meet OCA's Michigan Attorney

Darius W. Dynkowski

Darius W. Dynkowski

Darius W. Dynkowski is a Partner at Butzel Long. Darius Dynkowski dedicates a substantial part of his practice to the protection of private property rights in eminent domain proceedings. Mr. Dynkowski maintains decades of experience in fighting for the rights of property owners in State and Federal courts.

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A SUMMARY OF MICHIGAN'S EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Powers?

    Michigan requires a specific delegation of the authority to acquire property through eminent domain. The delegation is usually in the form of a State law or statute authorizing the use by a particular municipality, agency or, in certain circumstances, utilities. At the outset, it is important to understand whether the particular agency has been conferred with the power of eminent domain and it is important to understand the very specific, identified purposes under which the agency may utilize the power of eminent domain.

  • What Are the Legal Requirements or Pre-Requisites for Exercising the Power?

    A property owner has a very limited time period from the date on which they are served the complaint for condemnation to challenge the legality, purpose or public use alleged as the basis for the acquisition. For this reason, it is important to engage competent counsel as soon as an owner becomes aware that their property or business may be taken by eminent domain.

  • What Limitations of Defenses Exist?

    In a Michigan condemnation action, the burden of proof is on the condemning agency to demonstrate, by the preponderance of the evidence, that the taking of a private property is for a public use, unless the condemnation action involves a taking for the eradication of blight, in which case the burden of proof is on the condemning authority to demonstrate, by clear and convincing evidence, that the taking of that property is for a public use.

  • What Constitutes a Public Purpose?

    Typically, parks, schools, certain utility projects and other uses that serve the public good or need are considered a public purpose. In 2006, the Michigan Constitution was amended to clarify that “public use does not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues.” This Constitutional Amendment is based on the case of County of Wayne v. Hathcock, where Ackerman Ackerman and Dynkowski represented a group of landowners in their fight against the County’s attempted taking of a mixed-use economic development project.

  • How is Just Compensation Determined?

    Just compensation is determined on the market value as of the date of taking, which in Michigan is the date the complaint for condemnation was filed against the property owner. Either the condemning agency or the property owner may request that a jury determine just compensation. If neither side requests a jury within the statutory time period, the circuit court judge will determine the compensation owing to the property owner.

  • How is Fair Market Value Defined?

    The Michigan Civil Jury Instructions define market value as:

    Your award must be based upon the market value of the property as of the date of taking. By “market value” we mean:
    (a) the highest price estimated in terms of money that the property will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser buying with knowledge of all of the uses and purposes to which it is adapted and for which it is capable of being used
    (b) the amount which the property would bring if it were offered for sale by one who desired, but was not obliged, to sell, and was bought by one who was willing, but not obliged, to buy
    (c) what the property would bring in the hands of a prudent seller, at liberty to fix the time and conditions of sale
    (d) what the property would sell for on negotiations resulting in sale between an owner willing, but not obliged, to sell and a willing buyer not obliged to buy
    (e) what the property would be reasonably worth on the market for a cash price, allowing a reasonable time within which to affect a sale. (M CIV JI 90.06)

  • What About Recovering Damages to Remaining Property?

    In a partial taking, the condemning agency must pay for not only the property taken, but also any damage to the remainder.

    The Michigan Civil Jury Instructions address partial takings with the following:
    When only part of a larger parcel is taken, as is the case here, the owner is entitled to recover not only for the property taken, but also for any loss in the value to his or her remaining property. The measure of compensation is the difference between (1) the market value of the entire parcel before the taking and (2) the market value of what is left of the parcel after the taking.

    *(In valuing the property that is left after the taking, you should take into account various factors, which may include: (1) its reduced size, (2) its altered shape, (3) reduced access, (4) any change in utility or desirability of what is left after the taking, (5) the effect of the applicable zoning ordinances on the remaining property, and (6) the use which the [ name of condemning authority ] intends to make of the property it is acquiring and the effect of that use upon the owner’s remaining property.)

    Further, in valuing what is left after the taking, you must assume that the [ name of condemning authority ] will use its newly acquired property rights to the full extent allowed by the law. (M CIV JI 90.12)

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    In Michigan, a property owner is entitled to be reimbursed, by the condemning agency, for reasonable attorney fees expended pursuant to Michigan Statute. Likewise, a property owner is entitled to reimbursement for expert fees and costs incurred in the condemnation action

REFERENCES AND LINKS

Michigan

Butzel Long
150 West Jefferson Avenue, Suite 100
Detroit, MI 48226
Tel:313-225-7000 | Fax: 313-225-7080
dynkowski@butzel.com

Darius has been avidly defending landowners through the country since 1996. He is an expert in the areas of condemnation and eminent domain, and he has been involved in cases at both state and federal levels. Darius has served as the lead attorney on several cases that have resulted in compensation exceeding the original offer by at least $1 million.

In addition, Darius served as the Chair of the American Bar Association Section of Real Property Condemnation Committee, and is an adjunct professor for the Michigan State University college of Law.

In June 2009, Darius was appointed by the Governor to serve two terms on the State of Michigan Real Estate Appraiser Licensing Board. In addition, Darius served as the Chair of the American Bar Association Section of Real Property. Darius has been recognized as one of the leading eminent domain attornys in the country by Chambers, USA, featured as a SuperLawyers “Michigan Super Lawyer,” a Dbusiness ‘Top Lawyer’ on numerous accounts, a 2020 ‘Leader in the Law’ by Michigan Lawyers Weekly and named of the “The Best Lawyers in America©.”

Darius has been a member of the Adjunct Faculty at The University of Detroit School of Law and the Michigan State University College of Law teaching courses in land use and eminent domain.

He earned his bachelor’s and master’s degree from Wayne State University, and received his juris doctor degree from the Michigan State University.

Speaking Engagements

  • CLE International, Eminent Domain, Dearborn, MI, Sept., 2002 “Challenges to the Necessity of a Taking”
  • CLE International, Regulatory Takings, Denver, CO, June, 2003 “Computation of Damages in Temporary Regulatory Takings”
  • State Bar of Michigan, Real Property Section, July, 2003, Roundtable discussion leader, “Avoiding Pitfalls in Condemnation Litigation”
  • CLE International, Eminent Domain, Raleigh, NC, August, 2003 “Federal Takings Litigation”
  • CLE International, Eminent Domain, Austin, TX, February, 2004 “Federal Condemnation”
  • American Bar Association, State and Local Government Law Section Annual Meeting, New Orleans LA, March, 2004, Hot Topics Discussion panel leader, “Necessity Issues in Condemnations”
  • CLE International, Eminent Domain, Dearborn, MI, June, 2004 “Computation of Damages in Temporary Regulatory Takings”
  • American Bar Association Annual Meeting, State and Local Government Law Section, Hot Topics discussion panel leader, Atlanta, Ga., August, 2005, “Necessity Challenges to Takings”
  • CLE International, Eminent Domain, Las Vegas, NV, April, 2005 “Federal Condemnations”, “Computation of Damages in Federal Temporary Regulatory Takings”, “Necessity Challenges to Takings”, “Ethics Discussion, Panelist”
  • CLE International, Eminent Domain, Dearborn, MI, October, 2005 “The Assemblage Doctrine as Applied to Eminent Domain Proceedings”
  • CLE International, Eminent Domain, Chicago, IL, November, 2005 “Calculation of Damages in Temporary Regulatory Takings”
  • ALI-ABA (American Law Institute-American Bar Association), Eminent Domain, San Diego, CA, January, 2006 “Event Occurring After the Date of Taking and Admissibility and Relevance to the Valuation Process”
  • American Bar Association, Annual Real Estate Symposium, San Diego, CA, May, 2006, Program Director and Moderator “The Public and Private Sector’s Role in Rebuilding Areas Impacted by Catastrophic Disasters”
  • CLE International, Eminent Domain, St. Louis, MO, March, 2007 “Federal Condemnation”
  • CLE International, National Eminent Domain Conference, Las Vegas, NV, April, 2007 “Litigating Environmental Domain Cases After Kelo”
  • American Bar Association, Real Property Section, Fall, 2007 CLE, Vancouver, British Columbia, September, 2007, Program Chair, Moderator, Panelist “Condemnation for Economic Development Purposes – American and Canadian Approaches”
  • National Business Institute, Road and Access Law: Successfully Handling Disputes, November, 2007 “Easement Law.”
  • CLE International, National Eminent Domain Conference, Orlando, FL, May, 2008 “Direct Testimony of Expert Witnesses in Eminent Domain Cases”
  • ALI-ABA, Eminent Domain National Conference, San Diego, CA, January, 2012 Speaker
  • American Bar Association, Real Property Section Annual Real Estate Symposium, New York, NY, May 2012, Moderator “Battle For Brooklyn”
  • American Bar Association, Annual Meeting, Chicago, IL, August, 2012, Speaker Arkansas Game and Fish v U.S., “Panelist A Divide and Conquer – The Subdivision Approach in Eminent Domain Valuation Litigation”
  • American Bar Association, Annual Meeting, San Francisco, CA, August, 2013, Presidential Showcase Seminar, Moderator “Planning and Takings in The Aftermath of Koontz”
  • CLE International, Ohio Eminent Domain Conference, Cleveland Ohio, October 2013, Program Chair and Presenter.
  • Michigan State Bar Association, Real Property Section, Homeward Bound CLE, December 2014, Panelist and Presenter “Avoiding Pitfalls In Eminent Domain Practice”
  • ALI-CLE, Eminent Domain National Conference, San Francisco, CA, February 2015, Speaker “Environmental Issues in Eminent Domain Actions”
  • CLE International, National Eminent Domain Seminar, Las Vegas, NV, December, 2016 – Program Chair Person
  • CLE International, National Eminent Domain Seminar, Las Vegas, NV, December, 2017 – Program Chair Person
  • International Right of Way Association, Petoskey, MI, Annual Eminent Domain Law Update Presenter, September 2018
  • CLE International, Eminent Domain National Seminar, Scottsdale, AZ, December 2018, Presenter, “Both Sides of the Taking”
  • International Right of Way Association, Petoskey, MI, Annual Eminent Domain Law Update Presenter, September 2019

Published Articles and Papers

Professional Affiliations

  • Chair, American Bar Association Section of Real Property, Land Use and Environmental Group
  • Adjunct Professor, University of Detroit Law School, since 2002
  • Adjunct Professor, Michigan State University College of Law, since 2009
  • Board Member, Owners’ Counsel of America, 2014-2017

Education

  • Wayne State University, B.A. 1993
  • Detroit College of Law, J.D.,1996

Bar Memberships and Admissions

  • Michigan
  • Ohio
  • American Bar Association
  • Michigan Bar Association

Honors and Awards

  • Recognized by Chambers USA as one of the leading eminent domain attorneys in the country, 2009
  • Recognized by Michigan Super Lawyers Magazine, Eminent Domain Law,2007-2010

Darius has been avidly defending landowners through the country since 1996. He is an expert in the areas of condemnation and eminent domain, and he has been involved in cases at both state and federal levels. Darius has served as the lead attorney on several cases that have resulted in compensation exceeding the original offer by at least $1 million.

In addition, Darius served as the Chair of the American Bar Association Section of Real Property Condemnation Committee, and is an adjunct professor for the Michigan State University college of Law.

In June 2009, Darius was appointed by the Governor to serve two terms on the State of Michigan Real Estate Appraiser Licensing Board. In addition, Darius served as the Chair of the American Bar Association Section of Real Property. Darius has been recognized as one of the leading eminent domain attornys in the country by Chambers, USA, featured as a SuperLawyers “Michigan Super Lawyer,” a Dbusiness ‘Top Lawyer’ on numerous accounts, a 2020 ‘Leader in the Law’ by Michigan Lawyers Weekly and named of the “The Best Lawyers in America©.”

Darius has been a member of the Adjunct Faculty at The University of Detroit School of Law and the Michigan State University College of Law teaching courses in land use and eminent domain.

He earned his bachelor’s and master’s degree from Wayne State University, and received his juris doctor degree from the Michigan State University.

Speaking Engagements

  • CLE International, Eminent Domain, Dearborn, MI, Sept., 2002 “Challenges to the Necessity of a Taking”
  • CLE International, Regulatory Takings, Denver, CO, June, 2003 “Computation of Damages in Temporary Regulatory Takings”
  • State Bar of Michigan, Real Property Section, July, 2003, Roundtable discussion leader, “Avoiding Pitfalls in Condemnation Litigation”
  • CLE International, Eminent Domain, Raleigh, NC, August, 2003 “Federal Takings Litigation”
  • CLE International, Eminent Domain, Austin, TX, February, 2004 “Federal Condemnation”
  • American Bar Association, State and Local Government Law Section Annual Meeting, New Orleans LA, March, 2004, Hot Topics Discussion panel leader, “Necessity Issues in Condemnations”
  • CLE International, Eminent Domain, Dearborn, MI, June, 2004 “Computation of Damages in Temporary Regulatory Takings”
  • American Bar Association Annual Meeting, State and Local Government Law Section, Hot Topics discussion panel leader, Atlanta, Ga., August, 2005, “Necessity Challenges to Takings”
  • CLE International, Eminent Domain, Las Vegas, NV, April, 2005 “Federal Condemnations”, “Computation of Damages in Federal Temporary Regulatory Takings”, “Necessity Challenges to Takings”, “Ethics Discussion, Panelist”
  • CLE International, Eminent Domain, Dearborn, MI, October, 2005 “The Assemblage Doctrine as Applied to Eminent Domain Proceedings”
  • CLE International, Eminent Domain, Chicago, IL, November, 2005 “Calculation of Damages in Temporary Regulatory Takings”
  • ALI-ABA (American Law Institute-American Bar Association), Eminent Domain, San Diego, CA, January, 2006 “Event Occurring After the Date of Taking and Admissibility and Relevance to the Valuation Process”
  • American Bar Association, Annual Real Estate Symposium, San Diego, CA, May, 2006, Program Director and Moderator “The Public and Private Sector’s Role in Rebuilding Areas Impacted by Catastrophic Disasters”
  • CLE International, Eminent Domain, St. Louis, MO, March, 2007 “Federal Condemnation”
  • CLE International, National Eminent Domain Conference, Las Vegas, NV, April, 2007 “Litigating Environmental Domain Cases After Kelo”
  • American Bar Association, Real Property Section, Fall, 2007 CLE, Vancouver, British Columbia, September, 2007, Program Chair, Moderator, Panelist “Condemnation for Economic Development Purposes – American and Canadian Approaches”
  • National Business Institute, Road and Access Law: Successfully Handling Disputes, November, 2007 “Easement Law.”
  • CLE International, National Eminent Domain Conference, Orlando, FL, May, 2008 “Direct Testimony of Expert Witnesses in Eminent Domain Cases”
  • ALI-ABA, Eminent Domain National Conference, San Diego, CA, January, 2012 Speaker
  • American Bar Association, Real Property Section Annual Real Estate Symposium, New York, NY, May 2012, Moderator “Battle For Brooklyn”
  • American Bar Association, Annual Meeting, Chicago, IL, August, 2012, Speaker Arkansas Game and Fish v U.S., “Panelist A Divide and Conquer – The Subdivision Approach in Eminent Domain Valuation Litigation”
  • American Bar Association, Annual Meeting, San Francisco, CA, August, 2013, Presidential Showcase Seminar, Moderator “Planning and Takings in The Aftermath of Koontz”
  • CLE International, Ohio Eminent Domain Conference, Cleveland Ohio, October 2013, Program Chair and Presenter.
  • Michigan State Bar Association, Real Property Section, Homeward Bound CLE, December 2014, Panelist and Presenter “Avoiding Pitfalls In Eminent Domain Practice”
  • ALI-CLE, Eminent Domain National Conference, San Francisco, CA, February 2015, Speaker “Environmental Issues in Eminent Domain Actions”
  • CLE International, National Eminent Domain Seminar, Las Vegas, NV, December, 2016 – Program Chair Person
  • CLE International, National Eminent Domain Seminar, Las Vegas, NV, December, 2017 – Program Chair Person
  • International Right of Way Association, Petoskey, MI, Annual Eminent Domain Law Update Presenter, September 2018
  • CLE International, Eminent Domain National Seminar, Scottsdale, AZ, December 2018, Presenter, “Both Sides of the Taking”
  • International Right of Way Association, Petoskey, MI, Annual Eminent Domain Law Update Presenter, September 2019

Published Articles and Papers

Professional Affiliations

  • Chair, American Bar Association Section of Real Property, Land Use and Environmental Group
  • Adjunct Professor, University of Detroit Law School, since 2002
  • Adjunct Professor, Michigan State University College of Law, since 2009
  • Board Member, Owners’ Counsel of America, 2014-2017
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