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K & K Constr., Inc. v. Department of Natural Resources

ELR Citation: 28 ELR 21156
Nos. 106712, 575 N.W.2d 531/(Mich., 03/24/1998)

The court holds that a lower court erroneously limited its taking analysis to only one of four contiguous lots owned by developers who were denied a permit to fill wetlands on their property. The court first holds that, at the least, all four of the developer's parcels of property should be considered in the taking analysis. In this case it is neither realistic nor fair to consider only parcel one for purposes of the taking analysis. Parcels one, two, and four are bound together through their contiguity, the unity of the developers' ownership interest in all three of these parcels, and the proposed comprehensive development scheme. Contiguity and common ownership create a common thread tying these three parcels together for the purposes of the taking analysis. In addition, the developers forged a connection between parcels one, two, and four through the proposed development scheme and permit applications. It would be inappropriate to allow the developers to sever this connection now that it makes their legal argument stronger. The court then remands the issue of whether parcel three is sufficiently connected tothe other parcels to conclude that all four parcels should be considered in the taking analysis.

The court then holds that when all of parcels one, two, and four are considered, it is clear that there was not a categorical taking of the developers' property. Land in the present case was not left economically idle. The developers were not prohibited from developing the remaining upland of parcel one as well as almost all of parcels two and four. While the commercial value of the land may have been reduced by the restrictions placed on it by the Wetland Protection Act, it was not rendered worthless or economically idle. The court further remands the case to the trial court to reevaluate the case under the three-part balancing test. The trial court should compare the value removed from the developer's land and calculate what value remains.

Counsel for Plaintiffs
Robert L. Bunting Jr.
Law Offices of Robert L. Bunting Jr.
113 Commonwealth Cir., Grand Prairie TX 75052

Counsel for Defendant
Stanley Pruss, Ass't Attorney General
Attorney General's Office
Natural Resources Division
Knapps Office Ctr.
300 S. Washington St., Ste. 530, Lansing MI 48913
(517) 335-1488

Before Mallett, Brickley, Boyle, Weaver, and Kelly, JJ.