Do Ontario school boards have too much statutory power? A comparison of expropriation and eminent domain in Ontario and Michigan.

AuthorMarrelli, Mario

ABSTRACT: The authors discuss the comparative law of expropriation, particularly as exercised by school boards in Ontario and Michigan They suggest that the sweeping authority given to governments in Ontario to expropriate land should be reviewed and subjected to a stricter legal standard, possibly through a constitutionalization of a right to private property in Canada. In the United States, the Fifth Amendment protects an individual's right to private property and as such, the government must meet a much stricter standard before it lawfully takes an individual's land. Individuals in the United States who decide to litigate issues of expropriation when their land is targeted have a far greater chance of success.

TABLE OF CONTENTS I. Introduction II. Ontario A. The Law of Expropriation B. Emotional Attachment to the Home C. The Importance of Analyzing Expropriation for Educational Purposes D. The process by which sites for new schools are selected E. The process of expropriation for educational purposes III. Case Studies I A. The Expropriation of Homes for the Expansion of St. Joseph Morrow Park High School B. The Legal Implications of the Scott Park Expropriation C. The Issue of Lack of Physical Space and Access for French-Speaking Schools in the GTA D. Further Expropriation for Educational Purposes May Not be the Best Policy Solution for Ontario's Declining Enrollment nor the Lack of Access to French-speaking Schools IV. Michigan A. Operative Law B. Public Use 1. Kelo v. City of New London, Connecticut V. School Board Context A. Necessity 1. Livonia Township School District v. Wilson 2. Board of Education of City of Grand Rapids v. Baczewski VI. Case Studies II A. Proposed High School Site in Bonita Springs B. Proposed High School Site in Beaverton C. Expropriation and Eminent Domain Harming the Poor D. Scholarly Critique on Eminent Domain VII. Will a Constitutionalization of the Right to Private Property Solve the Problem of Excessive Power Given to School Boards to Expropriate Lands? VIII. Suggestions for Further Research IX. Conclusion I. INTRODUCTION

Expropriation (or eminent domain as it is known by our southern neighbors) can bring very different responses depending on the party in a legal dispute. An arm of the Ontario provincial government is likely to have a jovial predisposition because it can exercise its statutory powers under the Expropriations Act. (1) Provided your land is within the province's jurisdiction, it can in effect be lawfully taken under the guise of the greater public good. For landowners, expropriation brings a very different feeling, one that pigeonholes an individual into making one of two decisions. Either retain counsel and attempt to litigate the matter (likely leading to a judgment in favor of the government) or accept fair market value and move; this leads to a series of other issues that will be discussed in the later sections of this article. Normally, if the government serves an individual with a notice to expropriate, the land will likely be taken. In rare circumstances, having political clout increases the chances of preventing expropriation.

The law of expropriation in Ontario and eminent domain in the State of Michigan provide the legal parameters whereby a government can in effect take possession of private property for the benefit of the public. The focus of this article is to analyze the broad statutory power of school boards to expropriate land for educational purposes, which is namely to expand or build new schools. Through an analysis of American jurisprudence and statutory law regarding eminent domain used by American school boards for educational purposes, it will be shown that the time has come for a re-examination of the statutory power that has been bestowed on school boards through expropriation legislation. The constitutional entrenchment of a right to private property under the Constitution of the State of Michigan (2) and the U.S. Constitution (3) protects individuals' right to private property, forcing the government at either the state or local level to meet significantly high legal thresholds to take possession of property under eminent domain. Unfortunately, the citizens of Ontario are afforded no such constitutional protection of their right to private property.

This article will begin with a section explaining the law of expropriation in Canada generally, and some of the landmark decisions that have been issued on the subject. The issue of emotional attachment to the home and how it relates to the issue of educational expropriation regarding school boards will then be discussed. Next, the article will provide an examination as to why a comparison of educational expropriation adds to existing literature on the subject. Following, the article will move into a discussion of the process by which Ontario school boards select sites for expropriation and the statutory provisions that provide the legal justification for the expropriation. The Ontario portion of this article will then present the study of the expropriation currently taking place for the expansion of the St. Joseph Morrow Park Catholic Secondary School in Toronto. This study has been added in order to demonstrate that education boards have too much statutory power with respect to their ability to expropriate. The second study takes the form of a case commentary regarding the Scott Park expropriation in Hamilton, Ontario and is designed to illustrate two points. First, it demonstrates the immense power that statutes confer to school boards in their ability to expropriate. Second, it explains some of the future adverse legal implications that may occur as a result of the excessive expropriating power that education boards have. The Ontario portion of the article will conclude with a discussion of the issue of lack of space for French language schools in Toronto, in addition to a discussion of the adverse policy effects associated with excessive statutory power conferred on school boards to expropriate.

This article seeks to advocate for stronger protection of private property in Ontario, in addition to shedding light on the excessive statutory power that has been given to school boards. As part of this advocacy, relevant comparisons to the system of eminent domain in the United States, and particularly in Michigan, shall be drawn in order to better illustrate how stronger protection of land is carried out in practice. The Michigan portion of this article will begin with a discussion on the operative law of eminent domain in both the State of Michigan and more broadly in the United States as a whole. The Takings Clause of the Fifth Amendment to the U.S. Constitution (4) is the starting point in the understanding of how eminent domain operates in the American context. Specific Michigan statutes and legislation direct the parameters of the eminent domain power at the state level and regulate the procedural aspects pertaining to condemnation proceedings. Government agencies or bodies are required to meet strict public use and necessity requirements in order to succeed in taking private property for the public good. These concepts will all be discussed in detail throughout the article.

Moving beyond the operative standard of the relevant constitutional and statutory law, this article will further analyze the development of the common law over time which has shaped the contemporary understanding of eminent domain. The landmark U.S. Supreme Court case Kelo v. City of New London, Connecticut will be explored in detail. Kelo presents the Court's interpretation of the public use requirement of the Takings Clause of the Fifth Amendment. In addition, the cases of Livonia Township School District v. Wilson (6) and Board of Education of City of Grand Rapids v. Baczewski (7) will be investigated to shape the understanding of the necessity requirement of eminent domain, and will also provide insight at the local level to determine how school boards function in Michigan and the limitations on their takings powers.

Once the statutory and common law have been explored in depth and the context of eminent domain for the purposes of education has been established, scholarly insight will be considered in order to paint a picture as to how important the home is to the individual in a broad sense. This will help to demonstrate the importance of private property rights and the need for proper limitations on eminent domain and expropriation powers.

Set against the legal backdrop of the importance of private property rights, this article will shift its focus to applying the established principles to relevant case studies. These case studies tell the stories of legal disputes between school boards and private property owners in an attempt to highlight the differences of takings powers in Ontario and Michigan. It becomes clear that as a result of constitutional protection to private property, Michiganders and Americans alike are afforded significantly more protection than Ontarians and Canadians as a whole. This article will allude to these differences with the goal of advocating for a stricter burden to be instituted in the Ontario system of regulation to make it more difficult for government bodies to expropriate private property, particularly in the realm of expropriation for educational purposes. Examples of these cases are provided from communities in Florida and Oregon.

Theories pertaining to the abusive power of eminent domain will be addressed. Established scholarly positions proclaim that instances of eminent domain for the purposes of economic development continue to target and severely impact underrepresented communities such as the poor, racial minorities, and the politically weak. These critiques of eminent domain provide unique insights on the real and potential harm that can stem from the abuse of government taking of real property, furthering the position that limitations on these powers...

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