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Ottawa County judge rules against blueberry farms
Healthy blueberries like this don't grow near roads where salt applications have damaged and killed bushes. Five Ottawa County growers sued the county, but a judge ruled against them. An appeal is pending which claims the governement should compensate growers for "taking" their property.
Just because blueberry bushes were damaged or killed when de-icing salt drifted from Ottawa County roads does not mean the government must pay for "taking" the damaged property under the rules of eminent domain, an Ottawa County judge has ruled.
The ruling, by Ottawa County Circuit Court Judge Edward R. Post, means that five blueberry farmers who sued the Ottawa County Road Commission will not be compensated for damages, at least not yet. An appeal is pending.
"We will appeal to the Michigan Court of Appeals," said Stephen Afendoulis, the attorney for Blueberry Heritage Farms Inc., Brady Farms Inc., Carini Farms Inc., David Reenders Blueberries LLC and Reenders Blueberries LLC.
"I have great respect for Judge Post," Afendoulis said, "but I respectfully disagree with his conclusions. We're not disputing the authority of the county to salt the roads. That's their job. All we're saying is that if you decide that 36,000 tons of salt is what you need to keep the roads clear, you are rendering large portions of farmland unfit for production, and that is a taking."
The suit was filed by the farmers after years of damage and an alleged increase of salt use by the county, particularly along U.S. Route 31 and Michigan Route 45, as the population around Grand Haven, and all of Ottawa County grow.
There's no dispute between the growers and the county that damage has been done. In fact, in the 2004 Ottawa County Michigan State University Extension (MSUE) Annual Report, researchers confirmed the growers' worst fears.
"The use of road salt for de-icing major highways in West Central Michigan is the main factor responsible for bud kill in blueberry fields adjacent to major highways in Ottawa County," the report said. "Our diagnostic indicated that in Ottawa County alongside U.S. 31, bud kill in front (100 feet away) of the road was on average 86 percent. However, some fields suffered up to 100 percent bud kill."
Armed with that documentation, the farmers met several times with the road commission and other interested parties, which came up with a plan in September, 2004, to reduce salt use by 25 percent county-wide in three years, and 75 percent in "designated environmentally sensitive areas."
That plan was embraced by farmers as a good start, but in January, the farmers filed suit for the damage already done. And despite the county's continuing efforts, Afendoulis said, a government taking is a government taking.
"The issue raised by the county was that the taking was not permanent, but blueberry bushes don't come back," he said. "If you spread salt in the winter, it ruins the next year's crop. So every year there's salt spread, it ruins the next year's crop."
In essence, the growers claim that salt, having rendered cropland adjacent to highways useless for blueberries or any other crop, constitutes a government taking for which they should be compensated. The judge disagreed.
"This court also finds that Plaintiff's injury is not unique ... because the blueberry crop is not the only crop susceptible to road salt," Post said in his decision. "If Plaintiff's blueberry loss were unique, then the losses of lawn grass, sugar maple trees, red maple trees, tulip trees or other roadside vegetation would be unique as well. That would clearly open the floodgates of litigation where property owners would demand compensation for every incidental vegetation loss from the inconvenience of owning property adjacent to highways ... ."
That argument doesn't hold much salt with Afendoulis, however.
"You cannot compare a maple tree along the side of the road or grass burns with the loss of millions of dollars worth of crops," he said.
The judge also said in his ruling that the "element of direct and immediate intrusion is missing" because the "Road Commission exercised its legitimate power in maintaining safe highways during the winter by spraying road salt on the highways, not directly on Plaintiff's properties."
The legitimacy of salting roads has never been questioned, Afendoulis said.
"We're not telling the road authority that we have the right to make a decision on how much salt to use," he said. "That's their call. But when they exercise that right in a way that takes the value of private property, the owners need to be compensated. Salting is a legitimate act. Building also is legitimate, but when it takes property, there is a constitutional provision that requires the government to pay the private owner for what they take."
Should the farmers win the case on appeal, Afendoulis said, the only issue left to decide will be fair compensation to the farmers, and that could be in the millions of dollars.
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