The Battle WARWAR

for the Right of Way

City of Lansing v. Wolverine Pipeline Company:

Losing the Battle but Winning the War

Wolverine Round I– Mayor of the City of Lansing v Michigan Public

Service Commission, 470 Mich 154 (2004)

Michigan Public Service Commission– City of Lansing intervenes– Argues no jurisdiction under MCL 247.183

MCL 247.183(2)– “A utility as defined in 23 C.F.R. 645.105(m) may enter upon, construct,

and maintain utility lines and structures longitudinally within limited access highway rights-of-way in accordance with standards approved by the state transportation commission that conform to governing federal laws and regulations. The standards shall require that the lines and structures be underground and be placed in a manner that will not increase highway maintenance costs for the state transportation department. The standards may provide for the imposition of a reasonable charge for longitudinal use of limited access highway rights-of-way. The imposition of a reasonable charge is a governmental function, offsetting a portion of the capital and maintenance expense of the limited access highway, and is not a proprietary function. The charge shall be calculated to reflect a 1-time installation permit fee that shall not exceed $1,000.00 per mile of longitudinal use of limited access highway rights-of-way with a minimum fee of $5,000.00 per permit. All revenue received under this subsection shall be used for capital and maintenance expenses incurred for limited access highways.”

ROUND I: City Wins– MPSC: Denied Motion– COA: City Wins– Supremes:

• City Wins• Under MCL 247.183, utilities must have local consent before

work can begin (but not necessarily at the time of the MPSC application)

If you can’t beat the game by the rules, change the rules of the game.

The “Wolverine Bill”– Senate Bill 522– 2005 Public Act 103

MCL 247.183(2):– “A utility as defined in 23  C.F.R.  CFR 645.105(m) may enter

upon, construct, and maintain utility lines and structures, including pipe lines, longitudinally within limited access highway rights‑of‑way and under any public road, street, or other subsurface that intersects any limited access highway at different grade, in accordance with standards approved by the state transportation commission and the Michigan public service commission that conform to governing federal laws and regulations and is not required to obtain the consent of the governing body of the city, village, or township as required under subsection (1).” (Amendments in bold)

ROUND 2: City is TKO’d– City of Lansing v Wolverine Pipeline Company, 275

Mich App 423 (2007) (lv denied)

Statute v Constitution– Raised but ducked in Round I– Squarely presented in Round II

Const 1963, art 7, sec 29– “No person, partnership, association or corporation, public or

private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village; or to transact local business therein without first obtaining a franchise from the township, city or village. Except as otherwise provided in this constitution the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.”

3 Clauses– “Utility Consent Clause”– “Franchise Clause”– “Reasonable Control Clause”

The Court of Appeals held:– “From a plain reading, it is clear that [1963 Const, art

7,] § 29 addresses three distinct areas. First the “consent” clause of § 29 prohibits the use of “the highways streets, alleys or other public places of any…city…” by utilities for their facilities without the consent of the…city….Second, the “franchise” clause prohibits a utility from transacting local business without first obtaining a franchise from the…city….Third, the “reasonable control” clause reserves the right of reasonable control of…streets…to…cities….”

…and there’s a conflict between the Statute and the Constitution:– “MCL 247.183(2) appears to directly conflict with

§29.”

…and the City still loses.Why?– Judicial Alchemy

• “Under Const 1963, art 7, sec 22, cities are granted the ‘power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.’ Because a city's general authority to adopt resolutions and ordinances is subject to the constitution and law, and a city's authority to grant or withhold consent to use its highways, streets, alleys and other public places can only be exercised through an ordinance or resolution, it follows that a city's ability to grant or withhold consent is also subject to the constitution and laws. Consequently, when and are read in conjunction, the Legislature has the authority to limit the manner and circumstances under which a city may grant or withhold consent under.”

The problem?– The “Reasonable Control Clause” is qualified– the

“Utility Consent Clause” is not.• “[T]he authority reserved to local units of government to

exercise reasonable control over the enumerated subject areas is explicitly made “subject to the other provisions of the Constitution.” City of Taylor v Detroit Edison, 475 Mich 109, 116 (2006)

– The distinction is clear (and intentional)

The solution?– Graft the language of sec 22 (“subject to the

constitution and law”) onto all of sec 29.– Possible argument for the “Reasonable Control

Clause,” which says “subject to the other provisions of this constitution,” but not (we argued) for the “Utility Control Clause,” which contains no such qualifier.

The Result?

We lost.– Or did we?– We lost the battle in Round 2, but we won the war– We got TKO’d, but there’s still no pipeline