Local Zoning Control Weakened for Natural Resource Extraction

This case had a negative impact on environmental protection in Michigan. The majority opinion instituted a new rule which severly limited a local government’s ability to protect its natural resources. Instead of the traditional assumption that zoning ordinances are presumed valid, the majority created a rule that natural resources extraction could only be prevented by zoning if “very serious consequences” would occur. The majority based its opinion on the policy argument that there is an important public interest in extracting and mining natural resources, while ignoring the important public interest in protecting them. The dissenting opinion would have kept the same standard for natural resouce extraction zoning ordinances as exist for all other zoning ordinances, and explicitly recognized the scarcity and finite nature of our natural resouces and the need to protect them from exploitation.

This case was overturned in the 2010 case of Kyser v. Kasson Twp, 786 N.W.2d 543 (Mich. 2010), but its “very serious consequences” rule was re-instituted by the passage of HB 4746 into law in July 2011.

This Michigan Supreme Court case involves two companion cases that raise the same question: when is a zoning regulation that prevents the extraction of natural resources valid? In the first case, the owners of an 80-acre parcel in an area zoned for specialized farming and single-family residences wanted to strip-mine the land for gravel. In the second case, a mining company wanted to remove silica sand from an area zoned for residential use. In both cases, the landowners were not allowed to mine their land, and local zoning authorities denied their applications to rezone the properties. The Court of Appeals upheld both zoning decisions. The Supreme Court held that the Court of Appeals had not used the proper standard for evaluating the regulations. A zoning regulation that prevents the extraction of natural resources is only valid if “very serious consequences” will result from the extraction. Because the Court of Appeals failed to apply this standard, the Supreme Court sent the cases back to the Court of Appeals for re-consideration.

In the first companion case, the owners of an 80-acre parcel in an area zoned for specialized farming and single-family residences wanted to strip-mine the land for gravel. In the second, a mining company wanted to mine silica sand from an area zoned for single-family residential dwellings. In both cases township zoning authorities denied the property owners permission to extract these resources. The property owners then sued the townships on the grounds that the denials were unconstitutional. The Court of Appeals upheld both zoning decisions.

What is the standard for determining the validity of zoning regulations that prevent the extraction of natural resources?

The majority (Justices Levin joined by Justices Williams, Fitzgerald, and Kavanagh) held that the Court of Appeals had used the wrong standard for determining when zoning regulations that prevent extraction of natural resources are valid. These zoning regulations are only valid if “very serious consequences” will result from the proposed extraction. In so holding, the majority stated that it was reaffirming prior Michigan Supreme Court decisions that had outlined the “very serious consequences” standard. The majority believed that this standard was justified for public policy reasons. In general, a zoning ordinance must be “reasonable” to be constitutional. The majority stated that a “more rigorous standard of reasonableness” is appropriate when the extraction of natural resources is involved because there is an important public interest in extracting and using natural resources. Unlike factories, mines cannot be moved, therefore restricting mining on a given piece of land means that more expensive and remote sources of the material will have to be found.

Justice Ryan, joined by Justice Coleman, concurred in part and dissented in part. Ryan disagreed with the majority’s embrace of the “very serious consequences” standard. He argued that this standard reverses the traditional rule that zoning ordinances are presumed to be valid, and is based not on prior holdings, but on dicta – that is, statements in prior cases that do not have the binding force of law. Finally, he argued that the “very serious consequences” standard runs counter to contemporary public policy and supports the “illusion that our scarce natural resources are infinite and renewable and therefore should be quickly exploited to the fullest extent.”