Man the barricades!

Last week, lawyers for the city of Detroit and the Detroit International Bridge Co. were again in court, this time arguing over who has legal control of a section of 23rd Street the bridge company has fenced off and paved over as part of the controversial Gateway Project.

It seems like a lot of taxpayer money is being spent by repeatedly dispatching Detroit Law Department attorneys to keep the bridge company from taking city property the city doesn't want it to have — and claims the company has no legal right to. On the other hand, we have to admit that's a better option than engaging in the kind of armed conflict a bridge company lawyer suggested could result if the city were to just go ahead and attempt to reclaim what it says rightfully belongs to the citizens of Detroit.

To be honest, News Hits was under the impression that the bridge company's taking of 23rd Street was no longer an issue. After all, Wayne County Circuit Court Judge Prentis Edwards ruled in February that the company had violated terms of its contract with the Michigan Department of Transportation regarding aspects of the public-private Gateway Project, and that anything the company had constructed atop 23rd Street had to be removed.

What we didn't realize until sitting through a hearing in the courtroom of Wayne County Circuit Judge Kathleen MacDonald last Friday was that the issue of who actually controls a portion of 23rd Street in southwest Detroit wasn't addressed in the ruling Edwards issued and the State Court of Appeals subsequently upheld.

In fact, Edwards' ruling stated specifically that the bridge company's rights to 23rd Street were not an issue before his court. "This court does not make any conclusions on the subject of the legal status of 23rd Street," he wrote.

We could claim that our confusion was justified because Edwards also ruled that the bridge company had to abide by agreed-upon plans for the plaza, and those plans always showed 23rd Street remaining open.

But the law, it seems, can work in strange ways.

In making his ruling, Edwards failed to find credence in the company's claim that it wasn't obligated to follow design plans that it had previously agreed to and were approved by the Federal Highway Administration, the Michigan Department of Transportation, the U.S. Department of Homeland Security and the Southeast Michigan Council of Governments.

As often seems to be the case with the bridge company owned by Grosse Pointe trucking tycoon Manuel "Matty" Maroun, the company unilaterally made substantial changes to the plan and then subsequently asked permission to do so.

"The president of the DIBC sent a letter to MDOT on Aug. 20, 2009 seeking consent to change the design relating to 23rd Street," Edwards wrote. "At the time that letter was sent, DIBC had already closed and occupied 23rd Street. DIBC has constructed substantial roads and ramps following unapproved designs."

So, the issue Edwards dealt with had to do with the company's unapproved construction that directly affected contractual agreements involving 23rd Street, not the control of the street itself.

That is an issue Judge Macdonald will decide.

On the surface, it seems like a no-brainer. We are all familiar with the practice of eminent domain, which allows, say, a government entity like the city of Detroit to take control of private property in order to pursue a project that benefits the public as a whole.

But what we have in this case is just the opposite: A private company attempting to take control of public property. It is similar to the issue of the bridge company taking control of a swath of Riverside Park, another matter that is still being fought out in the courts even though one judge has already ruled in favor of the city and ordered the company to tear down a fence it erected and vacate the city-owned property.

As it has in the past, the company is relying on its status as a "federal instrumentality," granted because the Ambassador Bridge it owns provides a conduit for international commerce.

It should be noted that the federal government, which is a defendant in an associated case brought by the owner of property housing a bait shop near the truck plaza, is arguing that the company really isn't a federal instrumentality.

But bridge company lawyer William Seikaly contended in court last week that the federal government doesn't really get to decide who may or may not be one of its instruments. That is a matter for courts to determine, Seikaly said, and the Michigan Supreme Court has already ruled in favor of the bridge company on that one.

Specifically, when it comes to constructing facilities involved with the moving of traffic across the bridge, the company doesn't have to abide by such regulations as city of Detroit zoning ordinances.

That state Supreme Court decision, however, did not address property rights, city of Detroit attorney Eric Gaabo argued in court last week. And even the federal government doesn't have the power to simply seize property belonging to the city without going through the proper legal process. And if the federal government itself doesn't have that power, how could the bridge company be allowed to assume control of 23rd Street without the city's permission?

Like we said, deciding that one would appear to be an easy call. But in the hands of the bridge company's skilled attorneys, nothing is all that easy.

In this case, Seikaly raised a number of issues.

Particularly pertinent, it seems, was his insistence that the city lost its right to control 23rd Street when the federal government approved including it in a "sterile zone" in which the entire truck plaza — which includes a duty-free store and fueling pumps — was fenced off for security purposes.

Gaabo called the company's arguments circular. It is trying to say the city abandoned 23rd Street, and because it was abandoned the city has no right to object to the bridge company fencing it off and paving over it. But the reason the company can claim it was abandoned, at least in part, is due to the fact that public access to the street was eliminated when the company fenced it off.

"The city never waived its rights," said Gaabo. "It never abandoned the street. It never stopped insisting that they get off it."

At one point, Gaabo suggested that, in theory anyway, the city would have been within its rights to just go in and tear down the fence.

It's a good thing that didn't happen, responded Seikaly, saying that if any city employees tried to tear down the fence they "would be met by armed guards. Probably somebody would be shot."

We chalked that claim up to a particularly dramatic bit of rhetorical flourish. But who knows? Maybe the company really does think it is sovereignty unto itself, or that the Department of Homeland Security would shed blood to protect the company's interests, not just in the case of terrorist attack but also from Department of Public Works employees wielding bolt cutters.

Fortunately for any city workers who, theoretically anyway, may have been put in harm's way, Seikaly got the judge to order that the city refrain from tearing down the fence until she makes a ruling on the matter.

News Hits is edited by Curt Guyette. Contact him at 313-202-8004 or [email protected]
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