Judge Rules in Favor of Blueberry Growers Claim Against MDOT, County

GRAND RAPIDS, Mich., June 21 /PRNewswire/ — A group of six blueberry growers in Ottawa County is hopeful that they will be compensated for crop damage after a Circuit Court judge ruled in favor of their claim that road salt used to treat roads adjacent to the farm land has caused the damage.

Although the ruling is likely to be appealed, it is a significant victory for the plaintiffs, who first brought action against the Ottawa County Road Commission and the Michigan Department of Transportation in 2004.

Growers said the damage to crops has become increasingly significant in past years, extending hundreds of feet into the fields when excess salt becomes wind-borne. The growers believe the increased crop damage coincides with the 1,200 percent increase in the amount of salt the county uses to treat roads.

The increased use of salt is documented in county records, which show a total of 36,000 tons used in the winter of 2002-03, compared to less than 3,000 tons in 1988-89.

The suit was originally brought against Ottawa County Road Commission and the Michigan Department of Transportation in 2004. In addition to maintaining county-owned roads, the OCRC contracts with the MDOT to maintain state-owned trunk lines within the county.

Varnum attorney Steve Afendoulis brought this case for the growers claiming that the government’s actions represented a partial taking of the farmers’ property without just compensation in violation of the farmers’ constitutional rights. This cause of action is commonly referred to as an inverse condemnation claim. The inverse condemnation claim, filed against OCRC was dismissed by Judge Post in 2005. The Blueberry farmers tried to appeal that decision, but the Michigan Court of Appeals ruled that the appeal was premature and needed to be brought after all issues in the companion case against the State of Michigan were decided.

The most recent decision was in the companion case against the State. The Ottawa County Circuit judge ruled in favor of the State on the claim that the State’s actions represented a partial taking of the farmers property without just compensation. This ruling was consistent with the court’s previous decision. The court ruled in favor of the farmers, however, on the farmers’ claim that the road salt represented a trespass-nuisance. As a result, the State of Michigan will be held liable to the damages caused by road salt to the blueberry crops.

The court’s decision reads in part: “This Court finds that plaintiffs have satisfied the elements for a trespass nuisance claim. This Court holds that the intrusion of road salt onto plaintiffs’ property is the “natural and likely necessary result” of the defendant’s conduct, and that defendant “set in motion” this intrusion by placing the salt on the road. A trespass-nuisance claim was not brought against the county because a previous Supreme Court case ruled that the government Immunity laws precluded such a claim. Pohutski v. City of Allen Park, 465 Mich 675 (2002).

Court Rules provide that the State is permitted to take an immediate appeal of this adverse decision. Attorney Afendoulis expects that both the adverse ruling on the constitutional claims and the favorable ruling on the trespass-nuisance claim are likely headed to the Supreme Court because of the significance of this potential precedent.

“The societal issues presented are important,” Afendoulis pointed out. “This case represents a classic conflict between the rights of government and the rights of private citizens to enjoy their property for its intended purposes. The government has an easement along the road to be used for maintaining the improved portion of the road. The salt damage, however, goes far beyond the government easement. When the government’s actions render large sections of a farmers’ property unfit for farming purposes, we believe that constitutes a taking by the government of private property without just compensation in violation of these farmers’ constitutional rights.”

Afendoulis emphasized that the farmers are not the ones that should be making the decision as to how much salt should be used.

“That is a decision that is most appropriately left with the governmental entities charged with the responsibility of maintaining the roads,” Afendoulis said. “We believe there are better and more environmentally safe ways to maintain the roads, but we understand that’s not our call. But when the government makes that call and the natural consequence of those decisions is the destruction of a farmers’ crops, the government should be held responsible.”

(Steve Afendoulis is available for comment on this story. Contact Tamara Bergstrom at 616-336-6631 for arrangements.)

Established in 1888, Varnum is one of the leading firms in Michigan and the Midwest. With more than 160 attorneys in six offices, the firm offers services in a full range of practice areas. The firm’s web site is located at http://www.varnumlaw.com/.

Varnum, Riddering, Schmidt & Howlett LLP

CONTACT: Tamara K. Bergstrom of Varnum, Riddering, Schmidt & HowlettLLP, +1-616-336-6631

Web site: http://www.varnumlaw.com/