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Road project jeopardizes preserved farmland
A sharp curve has been thrown at Michigan's farmland preservation efforts, and standing in the batter's box are Larry and Brigette Leach, who put their farm near Climax into the state's Purchase of Development Rights program, which they thought guaranteed it would remain farmland forever. But a Kalamazoo County road project threatens to invoke eminent domain and take 10 acres in a different direction.
As closing credits roll across the black-and-white movie's sunset, the hero's farm has been saved at long last thanks to the heroism of the beleaguered farmer - rocking on his front porch with a shotgun across his lap. His passion for the land won the day despite eminent domain's evil deeds, personified through a black-hatted sheriff or banker or railroad lawyer.
Outside theatres, however, most people lose their fight with a government determined to take private property for "the greater public good."
Interpretation of what is good - and healthy American skepticism about government efforts to do the right thing - have real-life boundaries that are seldom as simple as black and white, though. Historically, government must negotiate "just compensation" before it moves forward with condemnation. But in 2006, when a Connecticut city government tried to take private property for private development - and was backed up by the U.S. Supreme Court - the shotguns came out again. States all over the country, including Michigan, passed laws designed to stop such action.
But the "fight against city hall" genre didn't go away with attempts to pass black-and-white laws. Eminent domain in its original form and intent remains a basic right of government, leaving landowners pale when they're the ones on the porch.
Black-and-white doesn't apply in the case of Kalamazoo County farmers and their fight with the road commission over eminent domain, though. This is a much more colorful story, complicated by the land's enrollment in state farmland preservation programs.
Shotguns and legal documents
Fighting this fight - with legal documents, but so far no shotgun on her lap - is Brigette Leach, a Michigan Farm Bureau board member, and her husband Larry, who put 532 acres near Climax into Michigan's Purchase of Development Rights (PDR) easement in 2001. The program allows farmers to sell their development rights to the state in exchange for the state's promise that it will remain farmland forever. Next door is a neighbor's 600-acre parcel of farmland preserved permanently through an agreement with the American Farmland Trust. Both are legally binding, relatively simple black-and-white agreements.
The Kalamazoo County Road Commission, however, has proposed that a three-mile stretch of road be built through Leach's farm and other properties, and has made a purchase offer - through the county's perceived right of eminent domain - to the Leaches and other landowners who would be affected.
But the landowners - and that apparently includes the state - don't want the road to dissect legally preserved farmland, and have stopped cooperating with condemnation proceedings, Brigette Leach said.
"After the road commission flagged the area, that was the end of our cooperation," she said. "We told them they could take no soil borings and do no surveying until the issue is settled, because we believe that after the county made us an offer, we have no right to negotiate whether we sell or not. The road commission doesn't seem to answer to anybody, and they have a heavy hand when it comes to buying property through eminent domain."
The road commission will ultimately answer to the Michigan Attorney General, who has been asked to render an informal opinion about the situation by the Michigan Department of Agriculture (MDA), which administers the PDR program.
"At this point, the MDA has taken the position that it is opposed to the road project," said Rich Harlow, program manager with MDA's Farmland Preservation Office. "But because nothing like this has come up before, there's a lot we don't know. So we're waiting for the attorney general's opinion."
Really good reasons
Other states, however, already know how to handle issues such as these, said Scott Everett, director of the Michigan office of the American Farmland Trust.
"One reason we have 80-some farms preserved in Michigan is because we think it does provide eminent domain protection," he said. "It does in other states. In order to condemn, there must be no alternatives and some really good reasons to condemn legally preserved farmland. We don't want to lose this fight, because I dare say that farmers, whether they have preserved land or not, have a lot at stake on this issue. If the local road commission is able to put a road through a preserved farm, it will make it 10 times easier to take preserved land in the future. If there was no choice in this case, then maybe the county could take it. But I'm supremely confident that is not the case here."
Everett is correct about the choices, according to John Byrnes, interim managing director of the Kalamazoo County Road Commission. In fact, there were six different proposals originally scripted, he said.
"One of the proposals was to rebuild the road where it sits now," he said, "but there is a series of curves and turns that are a problem. Then we had to think about the road alignment, to make them into 55-mile-per-hour curves, and that started to impact other properties."
Byrnes said after required environmental assessments and extensive background work that goes into any road project, the county was left with three alternatives, all of which ran through the Leaches' farm. Proposal Six, Byrnes said, was determined to be the most efficient.
As the county went ahead with Proposal Six, which affects about 10 acres of Leach's protected property, it was informed by the Leaches and other property owners about farmland preservation programs (Leach said the engineering firm representative had never heard of PDRs before), and "did some back-tracking on the legalities" of taking preserved property under eminent domain, Bynes said.
"We believe there is a clause that says if the project is for the public benefit, it can be sold or released," Byrnes said. "So we made an offer on the property, but the Leaches said they didn't believe they were in a position to sell it. So that's where we sit. We're waiting for the attorney general's opinion."
Further complicating the matter is the fact that the project is being funded in large part with federal funds, although it remains unclear if the feds knew the land was under permanent easement when the funds were released. However, Byrnes said, with federal funding comes federal demands.
"If we were to get the federal money, they wanted the curves fixed," Byrnes said.
That argument didn't hold much weight with Everett.
Vacant land
"I think that what the road commission is trying to accomplish is deplorable," he said. "The winding roads in that area wind because they're curving around good farmland. This is a very rural area with no congestion, and little economic development, and roads in the area are not designed for people in a rush. And the fact that the farmland has been preserved adds a greater component of the project being bad. Preservation means that you can't do anything on it that adversely affects its value as agriculture, but I'm sure that the road commission doesn't understand that this land is fully developed."
That idea is apparently not on the minds of the road commission or the engineering firm working for the road commission, Leach said.
"The engineering firm and the appraisal firm consistently refers to the farm as vacant land," she said. "They need to admit that this is a fully developed unit of production, and not vacant in any way. They wouldn't just take down a factory that was in their way, so why do they want to take fully-developed and legally preserved farmland?
Questions such as that will have to wait for the attorney general's opinion, because there is very limited legal precedent in Michigan, said Michigan Farm Bureau Legal Council David VanderHaagen.
"It seems that if a unit of government is going to exercise its power over the public interest in property, it will need to find a specific statutory mandate for its exercise of eminent domain," he said. "There's also the question if a local unit of government ought to be able to exercise eminent domain over the sovereign state. We have no Michigan authority, but others have said that a little prince can't condemn the king's property."
That's a different movie, of course, but the concept is the same. And for the Leaches, the issue is pretty much black-and-white.
"This is prime farmland, and it needs to be preserved in large blocks in order to keep up the infrastructure," Brigette Leach said. "I wouldn't care even if it were bad farmland, because it's still farmland, and it's still been in continuous production. I mean, why did we preserve it for our daughter Kelly, who may want to farm here for another 60 years, if it's just going to be cut up by a road that nobody wants and that really isn't needed?
Leach also said a new road will increase safety problems for farmers attempting to cross it, and could be a serious detriment to future farmers who sell their development rights in hopes of preserving farmland.
"Of course our concern is for our own property," Leach said, "but what kind of precedent could this set? I'm concerned that it will set back the entire farmland preservation effort in Michigan."
Before the closing credits roll on this story, farmers and farmland preservationists alike hope there will be a happy ending. But if the road commission prevails, the ending will leave farmers with long-term concerns for future generations wondering if it's time to get out the shotgun and sit in the rocking chair.
If so, don't forget to wear a white hat.
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