The Michigan Supreme Court was asked to review case law that had formulated a rule from the due process clause of the state constitution to apply to gravel mining, by which that use must be allowed unless there were “very serious consequences” from the mining. Plaintiff’s application to mining was denied because it would interfere with the Township’s “Comprehensive Zoning Plan” and would invite similar applications. Plaintiff sought review, citing the “very serious consequences” (“VSC”) Rule, the present incarnation of which arose out of Silva v. Ada Twp, 416 Mich 153; 330 NW2d 663 (1982). Both the trial court and the Michigan Court of Appeals found for plaintiff. Defendant Township sought review.
The Supreme Court said it reviewed the constitutional and statutory interpretations of the state’s zoning enabling legislation on a de novo basis, upholding a broad grant of legislative zoning power to local governments, though the grant was not unlimited and must be exercised “reasonably.” In Silva, that court established a reasonableness test for natural resource extraction by which the VSC Rule emerged, due to the nature of the diminishing resource, and the possibility that the denial of exploitation may render the property worthless.
The Court traced the history and application of the VSC Rule before and after Silva, where restrictions on such mining were deemed invalid unless very serious consequences would emerge. The Court reconsidered the Rule in the light of the “reasonableness test” which derived from the due process clause and determined that gravel mining was not a preferred use and the land use restrictions on such mining were not unreasonable merely because they would not allow a more profitable use. All the due process clause compels with regard to the zoning ordinance, according to the Court, was that the ordinance be reasonably designed and administered to protect public health, safety and welfare and treat participants fairly. The determination of reasonableness and public interest are best left to the state legislature and local community. The VSC Rule is not a “species” of reasonableness, but would presume a zoning ordinance is unreasonable and therefore unconstitutional if it denies such exploitation without a showing of such consequences.
Moreover, the Court determined the application of the Rule violates the separation of powers, as local governments determine land use policy through the legislative act of adopting or amending zoning ordinances, for which the Court is prohibited from substituting its judgment. The Michigan Constitution leaves it to the legislature as well to determine natural resource policy; thus the VSC rule usurps the apportionment of constitutional powers and places the Court in the position of making determinations in cases where courts have no specialized expertise, and doing so in a case-by-case basis. Finally, the rule is at odds with the state’s zoning enabling legislation which apportions such matters to local government determination. The Court remanded the case to the trial court for review of the ordinance in the line of “reasonableness,” as opposed to the VSC Rule.
The decision in this case, although it continues to apply substantive due process and “reasonableness,” does away with the judicially-created preference for gravel mining as a matter of constitutional law.
Kyser v. Kasson Twp., 2010 WL 2787954 (7/15/2010)
The opinion can be accessed at: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/SCT/20100715_S136680_114_kyser-op.pdf
The American Planning Association submitted an amicus brief in this case
Thanks to Ed Sullivan of Garvey Shubert Barer in Portland, Oregon for providing this abstract.
Read more about the case here
