August 31, 2005, Introduced by Senator BROWN and referred to the Committee on Transportation.
A bill to amend 1980 PA 87, entitled
"The uniform condemnation procedures act,"
by amending section 4 (MCL 213.54), as amended by 1996 PA 474.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 4. (1) If the acquisition of a portion of a parcel of
property actually needed by an agency would destroy the practical
value or utility of the remainder of that parcel, the agency shall
pay just compensation for the whole parcel. The agency may elect
whether to receive title and possession of the remainder of the
parcel. The question as to whether the practical value or utility
of the remainder of the parcel of property is in fact destroyed
shall be determined by the court or jury and incorporated in its
verdict.
(2) If the acquisition of a portion of a parcel of property
actually needed by an agency would leave the remainder of the
parcel in nonconformity with a zoning ordinance, the agency, before
or after acquisition, may apply for a zoning variance for the
remainder of the parcel. In determining whether to grant the zoning
variance, the governmental entity having jurisdiction to grant the
variance shall consider the potential benefits of the public use
for which the property would be acquired, in addition to those
criteria applicable under the relevant zoning statute, ordinance,
or regulation. The agency must actually acquire the portion of the
parcel of property for the proposed public use for the zoning
variance to become effective for the remainder. If a variance is
granted under this subsection, the property shall be considered by
the governmental entity to be in conformity with the zoning
ordinance for all future uses with respect to the nonconformity for
which that variance was granted. However, if the property was also
nonconforming for other reasons, the grant of that variance has no
effect on the status of those other preexisting nonconformities. An
owner shall not increase the nonconformity for which a variance is
granted under this section without the consent of the governmental
entity. An agency has the same right to appeal action on a zoning
variance as would a property owner seeking a zoning variance. This
section does not deprive a governmental entity of its discretion to
grant or deny a variance.
(3) An agency or an agent or employee of an agency may enter
upon property before filing an action for the purpose of making
surveys, measurements, examinations, tests, soundings, and borings;
taking photographs or samplings; appraising the property;
conducting an environmental inspection; conducting archaeological
studies pursuant to section 106 of title I of the national historic
preservation
act, Public Law 89-665, 16 U.S.C.
USC 470f; or
determining whether the property is suitable to take for public
purposes.
The entry may shall
only be made upon
reasonable
notice
to the owner and at reasonable hours and shall not be made
unless written notice is provided to the owner not less than 30
days before the entry is made. Any entry made under this subsection
shall be conducted in compliance with the state constitution of
1963 and the constitution of the United States. An entry made
pursuant to this subsection shall not be construed as a taking. The
owner or his or her representative shall be given a reasonable
opportunity to accompany the agency's agent or employee during the
entry upon the property. The agency shall make restitution for
actual damage resulting from the entry, which may be recovered by
special motion before the court or by separate action if an action
for condemnation has not been filed. The term "actual damage" as
used in this subsection does not include, and an agency shall not
make restitution for, response activity, as defined in section
20101
of part 201 (environmental remediation) of the
natural
resources
and environmental protection act,
Act No. 451 of the
Public
Acts of 1994, being section 324.20101 of the Michigan
Compiled
Laws 1994 PA 451, MCL
324.20101, or diminution in the
value or utility of a parcel that is caused by the discovery of
information as the result of a survey, an appraisal, a measurement,
photography, or an environmental inspection made pursuant to this
section.
(4) If reasonable efforts to enter under subsection (3) have
been obstructed or denied, the agency may commence a civil action
in the circuit court in the county in which the property or any
part of the property is located for an order permitting entry. The
complaint shall state the facts making the entry necessary, the
date on which entry is sought, and the duration and the method
proposed for protecting the defendant against damage. The court may
grant a limited license for entry upon such terms as justice and
equity require, including the following:
(a) A description of the purpose of the entry.
(b) The scope of activities that are permitted.
(c) The terms and conditions of the entry with respect to the
time, place, and manner of the entry.
(5) An entry made under subsection (3) or (4) shall be made in
a manner that minimizes any damage to the property and any
hardship, burden, or damage to a person in lawful possession of the
property.
(6) As used in this section, "environmental inspection" means
the testing or inspection including the taking of samples of the
soil, groundwater, structures, or other materials or substances in,
on, or under the property for the purpose of determining whether
chemical, bacteriological, radioactive, or other environmental
contamination exists and, if it exists, the nature and extent of
the contamination.