Thursday, February 4, 2016

Did the State of Michigan inversely condemn the entire City of Flint?: Environmental justice meets the Takings Clause

A complaint filed in mid-January by plaintiffs in Michigan's Court of Claims alleges a novel, and intriguing claim.  Taken to its limits, the class action essentially alleges that the State of Michigan inversely condemned the entire City of Flint, or some large portion thereof, by knowingly transferring the city to a water source contaminated with lead.  

At first, the action may seem far-fetched.  But is it? This story from the New York Times seems to indicate that everyone who can get out of Flint is doing just that.  The only people staying are those too poor to leave.  As the NYT writes:

Because the drinking water flowing from their pipes is contaminated, tens of thousands of people here may have been exposed to lead and other toxic chemicals. Untold numbers of them are desperate to leave. But few see a way to pick up and move to a place where the water that flows from the taps is clean and safe.

So, imagine owning an apartment complex in Flint.  What is the value of that property if everyone leaves?  Is it any different if the only people who stay are those too poor to leave?

What about a home owner?  Is anyone choosing to move to Flint these days?  Is there any marketability in a residential home?  Will the lead in the water permanently taint the real estate market?  What if the only people who want to live in Flint are those who can't afford to live anywhere else?

What do others think?  Is it a viable claim?  Personally, I think it has legs if it gets the right judge; the case has received surprisingly little media attention.  It seems to me that, if the case is made right, the State of Michigan might just have just bought itself the entire City of Flint.

The claim is brought under the Michigan constitution's takings clause.  Michigan courts have held that "the two elements of an inverse condemnation claim are (1) ‘that the government's actions were a substantial cause of the decline of his property's value, and (2) that the government abused its legitimate powers in affirmative actions directly aimed at the plaintiff's property."  Hinojosa v. Dep't of Nat. Res., 263 Mich. App. 537, 549, 688 N.W.2d 550, 557 (2004).

The evolution of this case will be interesting to follow.

Download Flint Inverse Condemnation Complaint (See Complaint at 35, Count IV).

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Obviously the second leg of the inverse condemnation claim fails, as the government didn't take "affirmative actions directly aimed at the plaintiff's property."

Posted by: TokyoTom | Feb 9, 2016 3:33:04 AM

That is certainly the hard element to prove; I don't think it is "obvious" they would lose under the extraordinary facts here, though.

Posted by: Stephen R. Miller | Feb 10, 2016 9:53:29 AM

Was the decision to change water sources an "affirmative action" aimed at the plaintiff's property?

Posted by: Dave Alexander | Feb 11, 2016 11:13:50 AM

Only time will tell. I looked at the case law in Michigan briefly; courts are pretty stingy in finding an "affirmative act" but I didn't find any cases--in my cursory review--where facts approached those here.

Posted by: Stephen R. Miller | Feb 11, 2016 2:50:17 PM