Preview:

STATE OF MICHIGAN
COURT OF APPEALS


LENAWEE COUNTY, Plaintiff-Appellant, v DAVID WAGLEY and BARBARA WAGLEY, Defendants-Appellees, and BANK OF LENAWEE and PAVILLION MORTGAGE, Defendants. _________________________________________ LENAWEE COUNTY, Plaintiff-Appellant, v ROBERT D. GARDENER and MICHELE A. GARDENER, Defendants-Appellees, and SKY BANK and UNITED BANK & TRUST, Defendants. _________________________________________ LENAWEE COUNTY, Plaintiff-Appellant,

UNPUBLISHED March 22, 2007

No. 268819 Lenawee Circuit Court LC No. 05-001960-CC

Docket No. 268820 Lenawee Circuit Court LC No. 05-001961-FC

-1-


v MARY HALSTEAD, Defendant-Appellee, and LENCO CREDIT UNION and ALDEN STATE BANK, Defendants. ________________________________________ LENAWEE COUNTY, Plaintiff-Appellant, v ROBERT L. SELLERS, SR., Defendant-Appellee, and UNITED MORTGAGE COMPANY, Defendant. ________________________________________ LENAWEE COUNTY, Plaintiff-Appellant, v RICHARD F. BARON, MARY SHARON BARON, and BARON FAMILY TRUST DATED DECEMBER 30, 1992, Defendants-Appellees.

Docket No. 268821 Lenawee Circuit Court LC No. 05-001962-CC

Docket No. 268822 Lenawee Circuit Court LC No. 05-00200-CC

Docket No. 268823 Lenawee Circuit Court LC No. 05-002001-CC

Before: Sawyer, P.J., and Fitzgerald and Donofrio, JJ. PER CURIAM. -2-

In these consolidated appeals plaintiff Lenawee County appeals by leave granted a January 18, 2006, "Order Requiring a Total Taking" of defendants' property in these condemnation actions under the Uniform Condemnation Procedures Act (UCPA), MCL 213.51 et seq. The trial court denied plaintiff's motion for reconsideration. We reverse and remand. These cases arise out of the expansion and improvement of Lenawee County Airport, including a lengthening of the runway. Plaintiff determined that it was necessary to acquire certain parcels of property to implement the runway improvement. Of import to this matter, it was determined that plaintiff needed to acquire avigation easements over defendants' properties. The easements were deemed necessary because defendants' residential properties are located in a Runway Protection Zone ("RPZ"), a trapezoidal shaped area that "begins 200 feet beyond the end of the area useable for takeoff and landing," and is maintained to "enhance the protection of people and property on the ground."1 Essentially, the easements required that defendants provide plaintiff with the right to maintain the airspace above a certain height on defendants' properties free from obstructions, and the right to create such noise, fumes, and particulates as may be inherent for using the airspace for airport purposes. Plaintiff presented each defendant with a good faith offer to acquire the necessary avigation easement. Defendants refused the offers, and plaintiff initiated the present actions seeking condemnation of the properties. In response, each defendant filed substantially similar motions grounded in MCL 213.54(1) " to compel a total taking." Defendants argued that their residences were located in a RPZ and that FAA regulations required that the homes be razed and the sites cleared, resulting in destruction of the value or utility of the remainder of the parcels. In response to defendants' motion, plaintiff argued that the question of whether the practical value or utility of defendants' properties has been destroyed was a question of fact for a jury. Plaintiffs also argued that defendants presented no evidence regarding any reduction in value of their properties and presented evidence that other residential properties encumbered by avigation easements generally have a reduction in value of approximately 6%. Plaintiff also noted that defendants' properties were currently encumbered by avigation easements. Following hearings on defendants' motion, the trial court granted the motion. In its January 18, 2006, order, the court stated in part: The Court has reviewed the briefs and materials submitted by the parties and entertained oral argument. The Court has determined that the Federal Aviation Administration regulations required the removal of Defendants' home as a result of its location in a Runway Protection Zone as a matter of law. Therefore, no issue of fact exists because the acquisition of the portion of the parcel of property actually needed by Plaintiff destroys the practical value or utility of the

1

Federal Aviation Administration ("FAA") Policy and Procedures Memorandum, 5300.1B, issued February 5, 1999,

Download LENAWEE COUNTY V RICHARD F BARON.pdf

Michigan Law