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Opinion Date: 07/15/2010
e-Journal Date: 07/19/2010
Full Text Opinion

Practice Area(s):   Municipal
Constitutional Law

Issues: Zoning; Schwartz v. City of Flint; Brae Burn, Inc. v. Bloomfield Hills; The "no very serious consequences" rule related to extracting natural resources; Silva v. Ada Twp.; City of N. Muskegon v. Miller; Village of Terrace Park v. Errett (6th Cir.); Bloomfield Twp. v. Beardslee; Certain-teed Prod. Corp. v. Paris Twp.; Whether the "no very serious consequences" rule is constitutionally required; Due process; Const. 1963, art. 1, § 17; Shavers v. Attorney Gen.; The "reasonableness" test for assessing the constitutionality of zoning regulations; Whether the "no very serious consequences" rule violates the "separation of powers"; Const. 1963, art. 3, § 2; Const. 1963, art. 4, §52 (directing the Legislature to provide for the protection and management of the state's natural resources); Whether the rule was superseded by the enactment of the exclusionary zoning provision (MCL 125.297a) of the Township Zoning Act (TZA) (now recodified in nearly identical form as MCL 125.3207 under the Zoning Enabling Act - ZEA); Preemption of the common law by a statute; Millross v. Plum Hollow Golf Club; Hoerstman Gen. Contracting, Inc. v. Hahn; MCL 125.3201(1); MCL 125.3203(1); Stare decisis
Court: Michigan Supreme Court
Case Name: Kyser v. Kasson Twp.
e-Journal Number: 46329
Judge(s): Markman, Corrigan, Young, Jr., and Hathaway; Dissent - Kelly and Cavanagh; Not participating - Weaver

Holding the Silva "no very serious consequences" rule is not a constitutional requirement, it violates the constitutional separation of powers, and was superseded by the exclusionary zoning provision (MCL 125.297a) of the TZA (now MCL 125.3207 of the ZEA), the court reversed the Court of Appeals judgment affirming the trial court's ruling enjoining enforcement of the defendant-township's zoning ordinance and remanded the case to the trial court. Over 50% of the township is either mostly or moderately suited for gravel mining. There were seven gravel mines operating in the township in 1988, and over the next six years there were seven rezoning applications submitted to allow for more gravel mining. The township established a gravel mining district in accordance with the ZEA, encompassing 6 of its 37 square miles. Plaintiff owned a 236-acre parcel adjacent to the gravel mining district, and 115.6 acres of her property contained a large deposit of the most commercially valuable type of gravel. She applied to rezone her property to permit gravel mining, but the township denied the application, asserting to do otherwise would undermine its comprehensive zoning plan and prompt more rezoning applications from similarly situated property owners. Plaintiff sued, arguing her due process rights were violated by the township's decision because gravel mining would cause "no very serious consequences" in accordance with Silva. Although the trial court determined the public interest in plaintiff's gravel was not high, it applied the rule and concluded a mining operation on her property would result in no very serious consequences. The court concluded the "no very serious consequences" rule was not a "species" of the "reasonableness" test used to assess the constitutionality of zoning regulations and thus, not a requirement of the Due Process Clause. Further, adoption of the rule violated the separation of powers where the Constitution directs the Legislature, not the judiciary, to provide for the protection and management of the state's natural resources and by "preferring the extraction of natural resources to competing public policies," the rule "usurps the responsibilities belonging to both the Legislature and to self-governing local communities." The court also concluded by enacting the ZEA, the Legislature superseded the rule. "The constitution only requires that a zoning ordinance be reasonable, regardless of whether the ordinance does or does not regulate the extraction of natural resources." An ordinance is presumed reasonable and the burden is on the party challenging it to overcome this presumption by showing there is no reasonable governmental interest being advanced. Because both the Court of Appeals and the trial court analyzed the zoning ordinance at issue "through the prism of the 'no very serious consequences' rule, rather than the 'reasonableness' test," the court reversed and remanded the case to the trial court.


The dissent concluded the "very serious consequences" test derived from constitutional due process considerations, did not violate the separation of powers, and was not superseded by the exclusionary zoning statute. The dissenting justices stated the majority opinion dismissed "over 80 years of precedent holding that minerals on property implicate unique due process concerns," and did not adequately consider whether stare decisis warranted overruling the constitutional underpinnings of Silva. Because the dissenting justices believed the very serious consequences test derived from constitutional due process, it followed the separation of powers principle was not violated. They also did not believe the test was superseded by the ZEA, noting, inter alia, both the TZA and ZEA were silent about the test. The dissenting justices would affirm the Court of Appeals judgment.

Full Text Opinion

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