Tom Barwin’s office on the second floor of Ferndale’s city hall is a tour through the intellectual, political, athletic, and managerial influences that make up a proven career in progressive public administration. Gail Sheehy vies for space on the bookshelves with economic texts. John Kennedy is well represented in the hanging art. There are achievement awards, particularly from the Detroit marathon, which Barwin has run and finished twice. Democratic Governor Jennifer M. Granholm appears in a framed picture. So does former conservative Republican Governor John Engler.

Nothing suggests that this quiet corner of city hall is the war room, and that Ferndale’s tall, slim, blue-eyed city manager the commanding general for the most aggressive attack ever on an increasingly controversial public agency, the Southeast Michigan Council of Governments. Mr. Barwin leads a new legal charge against SEMCOG because he is convinced its decision-making process, which represents 147 local governments in seven counties, is worsening the region’s severe sprawl.

Backed by his city council, an influential church-based citizen group, and attorneys with long careers in public interest litigation, Mr. Barwin wants to reverse the region’s raging engines of growth by turning them away from the farm fields they are rapidly converting to subdivisions and strip malls and redirecting them back towards city centers. He believes his group’s pioneering lawsuit can do this by correcting an imbalance of power in the 51-member SEMCOG executive committee, which controls hundreds of millions of transportation tax dollars. The suit, filed in Wayne County Circuit Court last year, received its first hearing on August 12. It claims that the committee is controlled by suburban governments, which benefit from SEMCOG’s public spending decisions, and is leaving Detroit and its inner ring of suburbs, including Ferndale, out of the money. 

The suit’s cornerstone is the fact that sprawl is mostly a result of massive government financial intrusion into free markets. A soon-to-be-published study by the Michigan Land Use Institute found that local and state governments provide nearly $13 billion annually in grants, loans, tax breaks, subsidies, bonds, infrastructure projects, and other economic development programs in Michigan. Most of that is invested outside of cities. Mr. Barwin says that bias is particularly apparent in southeastern Michigan, where SEMCOG controls $600 million in annual transportation and infrastructure spending.

“The makeup of the SEMCOG executive committee is so tilted toward disinvestments from the central city and older suburbs toward green field development it doesn’t even pass the straight face test,” Mr. Barwin told the Great Lakes Bulletin News Service. “We have a basic fundamental, discriminatory, structural problem and not much is going to change in how this region develops until it is fixed.”

Structural Discrimination
The lawsuit argues that SEMCOG gives much greater consideration to building roads for people who drive and live in the largely white and wealthy outer suburbs and discriminates against the poor, minorities, and disabled people who must rely on the region’s inadequate public transit systems. Neither Mr. Barwin nor his colleagues say the discrimination is willful in the same way that southern restaurant owners denied service to African Americans. Rather, they say the accumulated decisions about transportation spending reflect the structure of SEMCOG’s executive committee.

The City of Ferndale, the church-based activist group MOSES (Metropolitan Organizing Strategy Enabling Strength), attorney Richard Bernstein, and several other co-plaintiffs are basing their case, which Circuit Judge John H. Gillis Jr. is hearing, on state civil rights law. SEMCOG, the plaintiffs assert, is violating the law by denying minorities and disabled citizens in Detroit and the inner suburbs, who rely heavily on mass transportation, the ability to live their lives as easily as people with cars.

Mr. Bernstein, who is both a plaintiff and co-counsel, and attorney Gary Benjamin of Michigan Legal Services, frame the legal issues around the state’s Elliott-Larsen Civil Rights Act, which prohibits discrimination against persons with disabilities, and two state constitutional guarantees: Equal protection and the right to travel.

Their analysis of SEMCOG’s executive committee membership indicates it is heavily stacked with delegates from newer suburbs, while Detroit and the older suburbs, which have much higher minority populations, have relatively few delegates. Detroit’s 920,000 residents earn only three votes on the committee, while fast-growing Livingston County, with only 172,000 residents, has four votes. Monroe County, which has 12,000 less people than Livingston County, also has four votes; the same is true of St. Clair County. Oakland County has nine votes — 25 percent fewer than Wayne County’s — but Oakland has 40 percent fewer residents than Wayne.

The attorneys assert that the disparity is largely due to race. The 2000 Census identified less than 1,000 African Americans living in Livingston County, well under 1 percent of the population. Macomb, Monroe, and St. Clair counties are less than 3 percent black. Detroit is 82 percent African American; most of Wayne County’s 200,000 other African Americans live in inner-ring suburbs.

SEMCOG: We’re Legal
Mr. Barwin argues that if SEMCOG’s executive committee more fairly represented older cities and suburbs, spending for mass transit projects would increase dramatically. Fully a third of the region’s five million residents — young people, the elderly, people with disabilities, and the poor — do not drive. Yet SEMCOG directs just $145 million a year to the region’s two limited bus systems. Meanwhile, the agency may spend more than $1 billion just to widen I-75 from 8 Mile Road to M-59, and billions more to widen highways across the outer suburbs.

SEMCOG’s executives declined to be interviewed for this article. In the agency’s court filings, SEMCOG asserts that it is doing everything the law requires and is conducting its business fairly and equitably. The agency’s lawyers, from Miller, Canfield, Paddock, and Stone, say that if Detroit is so concerned about SEMCOG’s action why didn’t the city join Ferndale’s case? Last winter Detroit rejected MOSES’ efforts to recruit it as a co-plaintiff after city lawyers concluded that SEMCOG was not violating the state civil rights law.

And, SEMCOG’s attorneys add, the agency has been around for 36 years. Certainly that is enough time for plaintiffs to have filed such a case. So what is so egregious about SEMCOG’s actions now, the lawyers ask, to prompt a legal attack? SEMCOG urged Judge Gillis to dismiss the case. A decision is expected by October.

A Battle-Tested Team
Nevertheless, SEMCOG has reason to be nervous. Mr. Barwin has assembled a battle-tested group of lieutenants. Mr. Bernstein, a 30-year-old Birmingham resident, is an elected member of the Wayne State University Board of Governors and has been blind from birth — which has turned him into an experienced and passionate advocate for people with disabilities.

“Do municipalities have to provide a basic level of transportation for all people?” he asks. “The system that exists does not provide that basic level of services. If you can’t drive, and you can’t afford someone to drive for you, you don’t have a life here. And that, we argue, violates provisions under the civil rights act and is illegal under the law.”

Mr. Benjamin, the lead counsel, is 53 and has been fighting for the little guy for more than 30 years. He was co-counsel in the famous eminent domain case that sought to stop General Motors from flattening Detroit’s Poletown neighborhood to make way for a Cadillac assembly plant. Benjamin lost in the state Supreme Court in 1981; ironically, last month the current, conservative state Supreme Court essentially reversed that decision in a different, unrelated case.

“The law is very clear,” Mr. Benjamin said. “All this may sound complicated but I’m telling you, the complaint didn’t take long to draft.”

MOSES, with more than 70 member congregations in metropolitan Detroit, brings genuine political muscle to the case. Vicki Kovari, a 49-year-old mother of two, represents the church-based group. Among many other accomplishments, Ms. Kovari led the development of 60 low income single family units in southwest Detroit, founded a housing redevelopment corporation there, and dispersed $300,000 in home repair grants to low income families. Her wide ranging work, along with that of other organizations in southwest Detroit, helped to turn the long-stagnant area into the fastest growing community in the city.

“I see the issue of public transit as one way to begin to build regional momentum to attack urban sprawl and concentrated poverty and find regional solutions to regional problems,” said Ms. Kovari, who in 2002 was awarded a two-year, $130,000 Ford Foundation leadership grant for her work.  “I also see transportation as a unifying issue, one that has the potential to bring city and suburban congregations together by benefiting both.”

Contesting A Historic Pattern
As an organization ostensibly overseen by local government representatives and dedicated to serving their interests, SEMCOG is designed in theory to help leaders come together on important decisions that help the region thrive. In practice it rarely works that way. Delegates sent by local governments to sit on SEMCOG committees are principally loyal to their own constituents at home.

In government everything turns on marshalling votes. The basic path for deciding where SEMCOG spends money ends with the agency’s five-year regional transportation plan, which lays out all the projects and their priority. It begins when SEMCOG’s local government members nominate projects. They are discussed and given a priority by the organization’s transportation advisory committee, which makes recommendations to the executive committee. The executive committee ultimately decides when, where, and how much to spend. Not surprisingly, federal and independent studies of how regional planning organizations actually behave have shown that the real activity and leadership exert themselves at this stage, as the executive director, their staff, and a select group of governing board members take command.

Ms. Kovari, a dogged researcher, discovered in SEMCOG’s papers clear evidence that the  transportation advisory committee has been controlled almost exclusively by representatives of rural and suburban areas. Except for the mayor of Taylor, every chair of the influential committee over the last decade has represented either a rural community or a newer, auto-dependent suburb like Canton Township. Generally, the committee’s vice-chairman succeeds the chairman, but when Mr. Barwin was vice-chairman two years ago, SEMCOG nixed his chairmanship because he wasn’t an elected official.

Such power plays, and the representation of metropolitant planning organizations' committees and governing boards have long been a concern around the country. A 1994 study for the Federal Highway Administration of 74 MPOs, for instance, found that 68 had significant “central city under-representation.” According to a 1997 study by the Public Policy Institute of California, “in very few cases is MPO governing board voting power apportioned directly on the basis of population.”

At MOSES’s request, David Rusk, a former mayor of Albuquerque and a nationally recognized urban affairs expert, compared SEMCOG’s executive committee, which governs the agency, to the governing boards of eight other similar agencies in Midwestern and Eastern cities, including Cleveland, Cincinnati, and St. Louis. Rusk found that while Detroit had 20 percent of the region’s population, it had less than 5 percent of the representatives on the committee. Only Gary, Ind., another almost entirely African-American city, was as severely underrepresented.

“Segregation by race and economic status is caused, in part, by policies that encourage sprawl and urban disinvestments, which in this context means continued white flight,” Mr. Rusk concluded. “The decline of the core cities is now repeating itself in many inner ring suburbs that are now facing declining incomes, rising poverty, and slow- or no-growth tax bases. It is difficult to believe that the voting structure of SEMCOG had no effect on these numbers. Since Detroit has almost no clout, the policies of road building and encouraging sprawl have been followed in the Detroit metropolitan area to a very extreme degree.”

Can They Win?
The lawsuit against SEMCOG is the first of its kind brought against a metropolitan planning organization in a state court. If the plaintiffs win, the decision could achieve landmark status. But although the plaintiffs don’t acknowledge it, their case is a legal stretch. Indeed, other activists challenged the voting structure of similar agencies in federal court under the 14th Amendment’s guarantee of “equal protection.” But in a significant 1973 federal appellate decision in Hartford, Conn., advocates for voting equity lost. 

Whatever its outcome, the suit has already made a difference by revealing why there is such inequity in metro Detroit’s development patterns. On September 26, MOSES expects 7,000 people to rally for regional public transit — and call for restructuring SEMCOG — at the University of Detroit Mercy’s Calihan Hall. Like so many other steps citizens and some leaders are taking to try to improve the region’s economy and quality of life, the outcome of the case against SEMCOG is crucial to what Detroit becomes in this century.

This article is the second of a two-part series. Read part one here.

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WHAT HAPPENED

October 4, 2004
FERNDALE -- (AP) -- A judge today dismissed a lawsuit filed by this city and a coalition of mass transit advocates against the Southeast Michigan Council of Governments. Attorneys for the coalition recommended that the decision by Wayne County Judge John H. Gillis Jr. be appealed. The coalition contends that Detroit and inner ring suburbs are disproportionately underrepresented on the planning agency’s executive committee. As a result, the majority of the roughly $1 billion per year in state and federal transportation money allocated through SEMCOG ends up being spent on roads in the outer suburbs, Ferndale City Manager Tom Barwin said. “Apparently he decided that we did not prove the discrimination that we contend exists at SEMCOG, through their voting structure, was intentional,” Mr. Barwin said of the dismissal. “We have known all along that something of this magnitude would probably have to be determined at a higher, more sophisticated court.”   Sue Stetler, a spokeswoman for SEMCOG, called the lawsuit a distraction. “We’ve always been a proponent of transit,” she said. “This will just allow us to continue to do work to bring a balanced form of transportation to the region."

October 22, 2004
DETROIT --  A coalition of public transit advocates today filed a claim of appeal to overturn a lower court's decision earlier this month to dismiss their discrimination case against the Southeast Michigan Council of Governments. Circuit Judge John H. Gillis Jr. granted SEMCOG summary judgement to dismiss the case on October 4, ruling that the coalition failed to show how SEMCOG's executive board voting structure "burdened African Americans more harshly that members of other racial groups."  Gary Benjamin, the lead attorney for the coalition said he disagreed with the court's assessment. "We presented statistical evidence that clearly showed how the representation disparately affected the African American population and SEMCOG presented nothing to refute those statistical analyses."

Keith Schneider, a journalist and two-time winner of the George Polk Award for national reporting, is deputy director of the Michigan Land Use Institute. Reach him at keith@mlui.org. A version of this two-part article was published in the August 18, 2004 edition of Detroit’s Metro Times.