taking claim in Michigan

2014As Justice O’Connor noted in her concurrence in Palazzolo v Rhode Island, 533 US 606, 633 ; 121 S Ct 2448 ; 150 L Ed 2d 592 (2001), “the regulatory regime in place at the time the claimant acquires the property at issue helps to shape the reasonableness of those expectations.” Notice of the regulation cannot absolutely bar a taking claim, but should be taken into account.

2014As Justice O’Connor noted in her concurrence in Palazzolo v Rhode Island, 533 US 606, 633 ; 121 S Ct 2448 ; 150 L Ed 2d 592 (2001), “the regulatory regime in place at the time the claimant acquires the property at issue helps to shape the reasonableness of those expectations.” Notice of the regulation cannot absolutely bar a taking claim, but should be taken into account.

2020See also Kafka v Montana Dep’t of Fish, Wildlife & Parks, 348 Mont 80, 93 ; 2008 MT 460 ; 201 P3d 8 (2008) (“Property interests themselves are not defined by the [federal] Takings Clause, or for that matter by [the state’s taking clause]” but by “ ‘ “background principles” and “rules and understandings” [that] focus on the nature of the citizen’s relationship to the alleged property, such as whether the citizen had the rights to exclude, use, transfer, or dispose of the property.’ ”) (citations omitted); Cheatham v Pohle, 789 NE2d 467, 473 (Ind, 2003) (“The plaintiff has no property to be take

2020See also Kafka v Montana Dep’t of Fish, Wildlife & Parks, 348 Mont 80, 93 ; 2008 MT 460 ; 201 P3d 8 (2008) (“Property interests themselves are not defined by the [federal] Takings Clause, or for that matter by [the state’s taking clause]” but by “ ‘ “background principles” and “rules and understandings” [that] focus on the nature of the citizen’s relationship to the alleged property, such as whether the citizen had the rights to exclude, use, transfer, or dispose of the property.’ ”) (citations omitted); Cheatham v Pohle, 789 NE2d 467, 473 (Ind, 2003) (“The plaintiff has no property to be take

2016The McCarthy court noted that although some lower federal courts have followed the Eastern Enterprises plurality’s taking analysis, those courts “have done so only where a specific private property interest is retroactively affected.” McCarthy, 626 F3d at 285-286 . -11- from asserting generalized substantive due process claims.

2012The McCarthy court noted that although some lower federal courts have followed the Eastern Enterprises plurality’s taking analysis, those courts “have done so only where a specific private property interest is retroactively affected.” McCarthy, 626 F3d at 286 .

2016Id. at 1221-1222 .

2012Id. at 1223 .

2010Relying on the discussion of the requirement of finality in the context of a taking claim in Paragon, 452 Mich. at 578-579 , 550 N.W.2d 772 , plaintiffs, the trial court, and the Court of Appeals majority appear to have proceeded on the assumption that Paragon 's ripeness and finality rules can never apply to an ostensibly "facial" attack on a zoning ordinance, i.e., one premised on an exclusionary zoning theory.

2010Relying on the discussion of the requirement of finality in the context of a taking claim in Paragon, 452 Mich at 578-579 , plaintiffs, the trial court, and the Court of Appeals majority appear to have proceeded on the assumption that Paragon’s ripeness and finality rules can never apply to an ostensibly “facial” attack on a zoning ordinance, i.e., one premised on an exclusionary zoning theory.

2008Although plaintiff cites Penn Central Transportation Co v New York City, 438 US 104 ; 98 S Ct 2646 ; 57 L Ed 2d 631 (1978), plaintiff provides no analysis for this argument, merely stating, conclusorily, that “Plaintiffs reasonable investment-backed expectations (per the Ordinance) were denied due to Defendants’ conduct.” Plaintiff dedicates only one sentence in a 50-page brief to analysis of alleged error in rejecting the taking claim.

2008Although plaintiff cites Penn Central Transportation Co v New York City, 438 US 104 ; 98 S Ct 2646 ; 57 L Ed 2d 631 (1978), plaintiff provides no analysis for this argument, merely stating, conclusorily, that “Plaintiffs reasonable investment-backed expectations (per the Ordinance) were denied due to Defendants’ conduct.” Plaintiff dedicates only one sentence in a 50-page brief to analysis of alleged error in rejecting the taking claim.

1998The court rejected the defendants’ argument, explaining that it was illogical to “require Loveladies to convey to the public the rights in the 38.5 acres in exchange for the right to develop 12.5 acres, and then to include the value of the grant as a charge against the givers.” Id. at 1181 .

1998The court rejected the defendants' argument, explaining that it was illogical to "require Loveladies to convey to the public the rights in the 38.5 acres in exchange for the right to develop 12.5 acres, and then to include the value of the grant as a charge against the givers." Id. at 1181 .

2025In Tyler v Hennepin Co, Minnesota, 598 US 631 ; 143 S Ct 1369 ; 215 L Ed 2d 564 (2023), the Supreme Court of the United States addressed the same situation that faced this Court in Rafaeli and reached broadly the same conclusion—that a county’s retention of money remaining after the foreclosure sale of a condominium was a classic taking in violation of constitutional protections.

2022Although Williamson may, at first glance, seem to support plaintiffs’ argument regarding their delay in seeking to add a federal takings claim, this Court has stated in Bruley v City of Birmingham, 259 Mich App 619, 631 ; 675 NW2d 910 (2003): Williamson, therefore, stands for the proposition that a party cannot bring a federal Taking Clause claim in federal court until its state claims are resolved.

2022Although Williamson may, at first glance, seem to support plaintiffs’ argument regarding their delay in seeking to add a federal takings claim, this Court has stated in Bruley v City of Birmingham, 259 Mich App 619, 631 ; 675 NW2d 910 (2003): Williamson, therefore, stands for the proposition that a party cannot bring a federal Taking Clause claim in federal court until its state claims are resolved.

2013We have found no other cases before this Court’s opinion in People v Gould, 384 Mich 71, 80 ; 179 NW2d 617 (1970), that discuss the appropriate taking standard in the larceny-from-the-person context.

2013We have found no other cases before this Court’s opinion in People v Gould, 384 Mich 71, 80 ; 179 NW2d 617 (1970), that discuss the appropriate taking standard in the larceny-from-the-person context.

2010In Hinojosa v Dep’t of Natural Resources, 263 Mich App 537 ; 688 NW2d 550 (2004), this Court discussed the distinction between claims for trespass-nuisance and unconstitutional taking.

2010In Hinojosa v Dep’t of Natural Resources, 263 Mich App 537 ; 688 NW2d 550 (2004), this Court discussed the distinction between claims for trespass-nuisance and unconstitutional taking.

2010Electro-Tech introduced its discussion of finality with the following observation from Williamson Co. Regional Planning Comm. v. Hamilton Bank of Johnson City, 473 U.S. 172 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (1985), about the conceptual distinction between the exhaustion of administrative remedies and the finality of the administrative decision: "The question whether administrative remedies must be exhausted is conceptually distinct ... from the question whether an administrative action must be final before it is judicially reviewable.

2010Electro-Tech introduced its discussion of finality with the following observation from Williamson Co. Regional Planning Comm. v. Hamilton Bank of Johnson City, 473 U.S. 172 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (1985), about the conceptual distinction between the exhaustion of administrative remedies and the finality of the administrative decision: "The question whether administrative remedies must be exhausted is conceptually distinct ... from the question whether an administrative action must be final before it is judicially reviewable.

2008Ligon v Detroit, 276 Mich App 120, 124 ; 739 NW2d 900 (2007) (a taking claim), citing Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 531; 695 NW2d 508 (2004).

2008Under this approach, a claim is viewed in `factual terms' and considered `coterminous with the transaction, regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; * * * and regardless of the variations in the evidence needed to support the theories or rights.'" [ Id. at 124 , 680 N.W.2d 386 quoting River Park, Inc. v. Highland Park, 184 Ill.2d 290, 307-309 , 234 Ill.Dec. 783 , 703 N.E.2d 883 (1998).] Thus, under Michigan's test, it is not dispositive that the evidence needed to prove the taking claim is

2008Under this approach, a claim is viewed in `factual terms' and considered `coterminous with the transaction, regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; * * * and regardless of the variations in the evidence needed to support the theories or rights.'" [ Id. at 124 , 680 N.W.2d 386 quoting River Park, Inc. v. Highland Park, 184 Ill.2d 290, 307-309 , 234 Ill.Dec. 783 , 703 N.E.2d 883 (1998).] Thus, under Michigan's test, it is not dispositive that the evidence needed to prove the taking claim is

2008This procedure is sufficient to provide plaintiff relief from an administrative agency decision and for claims not decided by the administrative agency. [ Womack-Scott, supra at 81 , 630 N.W.2d 650 (emphasis added).] As the Womack-Scott panel explained, this procedure permits a plaintiff filing a ZBA appeal in the circuit court to also obtain relief on a taking claim, even though the ZBA did not decide or take evidence on that claim.

2008Accordingly, constitutional issues that were not within the ZBA's jurisdiction can be raised in the circuit court with the ZBA appeal. "[N]o separate action is contemplated or allowed." Id.

2008As this Court held in Spiek v Dep’t of Transportation, 456 Mich 331 ; 572 NW2d 201 (1998), general effects cannot be used as the basis for a claim of a taking.

2008As this Court held in Spiek v Dep’t of Transportation, 456 Mich 331 ; 572 NW2d 201 (1998), general effects cannot be used as the basis for a claim of a taking.

2008Ligon v Detroit, 276 Mich App 120, 124 ; 739 NW2d 900 (2007) (a taking claim), citing Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 531; 695 NW2d 508 (2004).

2008Under this approach, a claim is viewed in `factual terms' and considered `coterminous with the transaction, regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; * * * and regardless of the variations in the evidence needed to support the theories or rights.'" [ Id. at 124 , 680 N.W.2d 386 quoting River Park, Inc. v. Highland Park, 184 Ill.2d 290, 307-309 , 234 Ill.Dec. 783 , 703 N.E.2d 883 (1998).] Thus, under Michigan's test, it is not dispositive that the evidence needed to prove the taking claim is

2008Under this approach, a claim is viewed in `factual terms' and considered `coterminous with the transaction, regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; * * * and regardless of the variations in the evidence needed to support the theories or rights.'" [ Id. at 124 , 680 N.W.2d 386 quoting River Park, Inc. v. Highland Park, 184 Ill.2d 290, 307-309 , 234 Ill.Dec. 783 , 703 N.E.2d 883 (1998).] Thus, under Michigan's test, it is not dispositive that the evidence needed to prove the taking claim is

2007See Loretto v Teleprompter Manhattan CATV Corp, 458 US 419, 421 ; 102 S Ct 3164 ; 73 L Ed 2d 868 (1982), and Tuthill Ranch, Inc v United *312 States, 381 F3d 1132, 1136 (Fed Cir, 2004).