There are three main issues regarding takings: (1) what constitutes a taking; (2) what constitutes a public use; and (3) what constitutes just compensation. The current members of this Court have discussed the last two questions in Hathcock (the public-use question) and Silver Creek Drain Dist v Extrusions Division, Inc, 468 Mich 367 (2003) (the compensation question). In both of these cases, this Court looked to the common understanding of the disputed terms, whether "public use" or "just compensation." In both cases, this Court found that the terms were technical legal terms that should be interpreted in light of the meaning that those sophisticated in the law would have given those terms at the time of enactment. Silver Creek, 468 Mich at 376; Hathcock, 471 Mich at 470-71.
In K & K Const, Inc, in contrast, there was no discussion about the common understanding of those sophisticated in the law about whether regulatory takings are compensable and whether the denominator-parcel approach is appropriate. If this Court were to grant leave in this case, it should make the common understanding an explicit issue and solicit amicus briefs. The question of whether the general public or just a few unfortunate individuals should pay for the cost of regulations like the one at issue here is fundamental, and the question should be properly examined by this Court.
In order to understand the K & K Const, Inc opinion, a discussion of federal regulatory takings law is necessary. Michigan case law, both before and after 1963, will then be discussed.
