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Michigan Supreme Court Lansing, Michigan

Opinion
SUPREME COURT EDITH KYSER, Plaintiff-Appellee, v KASSON TOWNSHIP, Defendant-Appellant.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 15, 2010 STATE OF MICHIGAN

No. 136680

BEFORE THE ENTIRE BENCH MARKMAN, J. At issue here is: (1) whether the rule articulated in Silva v Ada Twp, 416 Mich 153; 330 NW2d 663 (1982), which held that a zoning ordinance is unreasonable if the person challenging the ordinance can show that there are natural resources on the property and that "no very serious consequences" would result from extracting such resources, is constitutionally required; (2) whether the "no very serious consequences" rule violates the constitutional separation of powers; and (3) whether the "no very serious consequences" rule was superseded by the enactment of the exclusionary zoning provision, MCL 125.297a, of the Township Zoning Act (TZA).

We hold that the rule of Silva is not a constitutional requirement and, in fact, violates the constitutional separation of powers. Further, we conclude that the rule is superseded by the exclusionary zoning provision, MCL 125.297a of the TZA, now MCL 125.3207 of the Zoning Enabling Act (ZEA). Accordingly, we reverse the Court of Appeals and remand to the trial court for further proceedings. I. FACTS AND HISTORY Defendant, Kasson Township, is heavily underlain with gravel and sand, with over 50 percent of the township being either mostly or moderately suited for gravel mining. In 1988, there were seven gravel mines operating in the township, and over the following six years, there were seven rezoning applications submitted to the township board to allow for additional gravel mining, resulting in both litigation and the establishment of new mining operations. In response, the township took several steps to address its overall mining policy, culminating in the establishment of a gravel mining district in accordance with the ZEA, encompassing 6 of the township's 37 square miles. Plaintiff, Edith Kyser, owns a 236-acre parcel adjacent to the township's gravel mining district. As with the gravel deposits within the mining district, 115.6 acres of plaintiff's property contain a large deposit of outwash gravel, which is the most commercially valuable type. Plaintiff filed an application to rezone her property to allow for gravel mining, but defendant denied the application, asserting that to do otherwise would undermine Kasson Township's comprehensive zoning plan and prompt additional rezoning applications from similarly situated property owners. Plaintiff then filed this

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action, claiming that her "due process" rights had been violated by this decision because gravel mining would cause "no very serious consequences" in accordance with Silva. The trial court determined that large quantities of gravel were available from other sources within the township, and because the testimony showed that this existing supply would last well into the "latter part of the 21st century," the trial court "conclude[d] that the public interest in [plaintiff's] gravel is not high." Nevertheless, applying the "no very serious consequences" rule, the trial court examined the consequences alleged by defendant pertaining to traffic safety, traffic noise, impact on surrounding property values, impact on residential development, and the influence on additional rezoning applications. The court concluded that a mining operation on plaintiff's property would result in no "very serious consequences" and enjoined enforcement of the zoning ordinance. On appeal, the Court of Appeals affirmed, concluding that plaintiff had established that no "`very serious consequences'" would result from her proposed mining. 278 Mich App 743, 760; 755 NW2d 190 (2008). The Court of Appeals dissent reasoned that applying the rule without considering the effect on the township's zoning plan essentially nullified the plan because the "only effective limitations on transforming the entirety of Kasson Township into a gravel mine would be the existence of gravel on a given parcel of property and the property owner's own interest in mining." Id. at 773 (opinion by DAVIS, J.). Additionally, it observed that the gravel district had been formed as a "result of intensive planning efforts . . . to prevent . . . uncontrolled intrusion of mining into any part of the township that would support it, irrespective of the consequences to the 3

community." Id. Thus, the destruction of defendant's plan and the disruption to the community "constitutes a `very serious consequence.'" Id. at 774. We then granted defendant's application for leave to appeal. 483 Mich 982 (2009). II. STANDARD OF REVIEW This case presents issues of constitutional and statutory interpretation, which we review de novo. Dep't of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008). III. ANALYSIS A. JUDICIAL REVIEW OF ZONING Zoning constitutes a legislative function. Schwartz v City of Flint, 426 Mich 295, 309; 395 NW2d 678 (1986). The Legislature has empowered local governments to zone for the broad purposes identified in MCL 125.3201(1).1 This Court has recognized zoning as a reasonable exercise of the police power that not only protects the integrity of a community's current structure, but also plans and controls a community's future development. Austin v Older, 283 Mich 667, 674-675; 278 NW 727 (1938). Because
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MCL 125.3201(1) provides:

A local unit of government may provide by zoning ordinance for the regulation of land development and the establishment of 1 or more districts within its zoning jurisdiction which regulate the use of land and structures to meet the needs of the state's citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land, to ensure that use of the land is situated in appropriate locations and relationships, to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities, to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements, and to promote public health, safety, and welfare.

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local governments have been invested with a broad grant of power to zone, "it should not be artificially limited." Delta Charter Twp v Dinolfo, 419 Mich 253, 260 n 2; 351 NW2d 831 (1984). Recognizing that zoning is a legislative function, this Court has repeatedly stated that it "`does not sit as a superzoning commission.'" Macenas v Village of

Michiana, 433 Mich 380, 392; 446 NW2d 102 (1989) (citation and emphasis omitted); Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 430-431; 86 NW2d 166 (1957). Instead, "[t]he people of the community, through their appropriate legislative body, and not the courts, govern its growth and its life." Brae Burn, 350 Mich at 431. We reaffirm these propositions. However, the local power to zone is not absolute. When the government exercises its police power in a way that affects individual constitutional rights, a citizen is entitled to due process of law. Id. at 437. The Due Process Clause is included in Const 1963, art 1,

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Michigan Law