SB-0693, As Passed Senate, November 9, 2005

SUBSTITUTE FOR

SENATE BILL NO. 693

     A bill to amend 1911 PA 149, entitled

"An act to provide for the acquisition by purchase, condemnation

and otherwise by state agencies and public corporations of private

property for the use or benefit of the public, and to define the

terms "public corporations," "state agencies" and "private

property" as used herein,"

by amending section 3 (MCL 213.23).

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 3. (1) Any public corporation or state agency is

authorized to take private property necessary for a public

improvement or for the purposes of its incorporation or  for public

purposes within the scope of its powers for  the  public use  or

benefit of the public and to institute and prosecute proceedings

for that purpose. When funds have been appropriated by the

legislature to a state agency,  or  a division  thereof or  of a

state agency, the office of the governor, or a division  thereof

of the office of the governor for the purpose of acquiring lands or

property for a designated public  purpose, such  use, the unit of a

state agency to which the appropriation has been made is authorized

on behalf of the people of the state of Michigan to acquire the

lands or property either by purchase, condemnation, or otherwise.

For the purpose of condemnation, the unit of a state agency may

proceed under  the provisions of this act. Any other public

corporation shall proceed only pursuant to its specific delegated

statutory powers of condemnation. Within its statutory delegated

powers of condemnation, a public corporation shall commence

proceedings under the uniform condemnation procedures act, 1980 PA

87, MCL 213.51 to 213.75.

     (2) The taking of private property by a public corporation or

a state agency for transfer to a private entity is prohibited

unless the proposed use of the land is invested with public

attributes sufficient to fairly deem the entity's activity

governmental by 1 or more of the following:

     (a) A public necessity of the extreme sort exists that

requires collective action to acquire land for instrumentalities of

commerce, including a public utility or a state or federally

regulated common carrier, whose very existence depends on the use

of land that can be assembled only through the coordination that

central government alone is capable of achieving.

     (b) The property or use of the property will remain subject to

public oversight and accountability after the transfer of the

property and will be devoted to the use of the public, independent

from the will of the entity taking it.

     (c) The property is selected on facts of independent public

significance or concern, including blight, rather than the private

interests of the entity to which the property is eventually

transferred.

     (3) As used in subsection (1), "public use" does not include

the taking of private property for the purpose of transfer to a

private entity for either general economic development or the

enhancement of tax revenue.

     (4) In a condemnation action, the burden of proof is on the

condemning authority to demonstrate, by the preponderance of the

evidence, that the taking of 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 is for a public use.

     (5) A taking of private property for public use, as allowed

under this section, does not include a taking for a public use that

is a pretext to confer a private benefit on a known or unknown

private entity.

     (6) Any existing right, grant, or benefit afforded to property

owners as of November 1, 2005, whether provided by the state

constitution of 1963, by this section or other statute, or

otherwise, shall be preserved and shall not be abrogated or

impaired by the 2005 amendatory act that added this subsection.

     Enacting section 1.  This amendatory act takes effect January

1, 2006.