France Stone Co., Inc. v. Charter Tp. of Monroe

• Decision Date: 31 August 1992
• Docket Number: No. 90-CV-73409-DT.,90-CV-73409-DT.
• Citation: 802 F. Supp. 90
• Parties: The FRANCE STONE COMPANY, INC., an Ohio Corporation, Plaintiff, v. CHARTER TOWNSHIP OF MONROE, a Michigan Municipal Corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

802 F. Supp. 90

The FRANCE STONE COMPANY, INC., an Ohio Corporation, Plaintiff, v. CHARTER TOWNSHIP OF MONROE, a Michigan Municipal Corporation, Defendant.

No. 90-CV-73409-DT.

United States District Court, E.D. Michigan, S.D.

August 31, 1992.

COPYRIGHT MATERIAL OMITTED

James E. Wynne, Butzel Long, Detroit, Mich., for plaintiff.

M. Francis Ortiz, Charles T. Harris, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., for defendant.

OPINION

GADOLA, District Judge.

Background

Plaintiff France Stone Company owns 200.92 acres of land, all of which abut a federal and state trunk line highway known as US-24, which is also known as Telegraph Road, in Monroe Township, Monroe County, Michigan. This property is known as the "Denniston Farm".

There exists at this site approximately 46,000,000 tons of minable dolomite¹ after taking into account non-minable areas on the property intended by plaintiff to be used for setbacks, roads, berms, et cetera. The 46,000,000 tons of minable dolomite meet all the road building specifications of the Michigan Department of Transportation.

The property is less than two miles from plaintiff's existing dolomite quarry on Dunbar Road. The Dunbar quarry has been in profitable operation continuously since 1906. Sales from the Dunbar quarry have historically totalled 1.0 to 1.1 million tons per year in modern times, and such sales have consistently resulted in an operating profit for decades. Anticipated sales of dolomite from the Denniston Farms property would be approximately equivalent to those obtained from the Dunbar quarry. It satisfactorily appears that the Dunbar quarry will exhaust its dolomite this year and will then be closed.

Monroe Township is located in central Monroe County, just south and west of the City of Monroe. The township includes residential, agricultural, commercial and industrial land uses.

The Denniston Farm is presently zoned for agricultural use, and is actively farmed. The property is bounded by land zoned for residential and agricultural use.

In 1985 plaintiff sought rezoning of the Denniston Farm from "agricultural" to "heavy industrial", in order to establish a quarry for the mining of dolomite. Under the township's zoning ordinance, mining (operation of a quarry) can only be undertaken on land which is zoned "heavy industrial" (H.I.) and even in an H.I.-zoned district, the quarry can only operate as a "special approved use". Thus, under the zoning ordinance of the defendant, Township of Monroe, plaintiff is required to, first of all, obtain a rezoning from "agricultural" to "heavy industrial", and then in addition obtain a permit from the township board allowing the operation of a quarry on the "heavy industrial" zoned land, as a "special approved use" thereon.

To support its application to rezone the Denniston Farm, plaintiff in 1987 completed and submitted an Environmental Impact Statement (EIS) containing assertions as to why, in plaintiff's estimation, the proposed quarry would cause no very serious consequences to the township. The township's consultant reviewed the EIS and recommended that the application be denied.

After conducting hearings, in March 1990 the defendant township's Planning Commission recommended to the Township Board that plaintiff's rezoning request be denied. The Monroe County Planning Department also recommended to the Township Board that plaintiff's rezoning request be denied.

In April 1990, following hearings, the Monroe Township Board denied plaintiff's rezoning request. Following denial of plaintiff's rezoning request, this litigation followed, in which plaintiff claims (1) that defendant's failure to grant plaintiff's request for rezoning its property to permit the extraction of natural resources constitutes a denial of substantive due process under Michigan law and (2) that defendant's failure to prevent the rezoning has resulted in either a temporary or a permanent taking of plaintiff's mineral rights, entitling plaintiff to recover damages.

This court has previously, in granting plaintiff's motion for a partial summary judgment, determined that the mineral deposits of dolomite on plaintiff's land constitute a valuable natural resource.

A non-jury trial of the remaining issues herein has been conducted by the court and the court now issues this opinion to resolve the issues tried herein.

I. PLAINTIFF'S CLAIM THAT DEFENDANT'S FAILURE TO GRANT PLAINTIFF'S REQUEST FOR REZONING ITS PROPERTY TO PERMIT THE EXTRACTION OF NATURAL RESOURCES CONSTITUTES A DENIAL OF SUBSTANTIVE DUE PROCESS UNDER MICHIGAN LAW.

A. Applicable Law

Under settled Michigan law, in the ordinary case of making a successful challenge to the validity of a zoning ordinance, the plaintiff has the burden of proving either firstly that there is no reasonable governmental interest being advanced by the zoning classification itself, or, secondly, that the ordinance is unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question. Ed Zaagman, Inc. v. Kentwood, 406 Mich. 137, 153-154, 277 N.W.2d 475 (1979); Kropf v. Sterling Heights, 391 Mich. 139, 158, 215 N.W.2d 179 (1974); Kirk v. Tyrone Township, 398 Mich. 429, 247 N.W.2d 848 (1976).

In such ordinary cases of challenges to zoning ordinances, the courts of the State of Michigan have enunciated four rules for applying the above-stated principles, set forth in, among other decisions, Ed Zaagman, Inc. v. Kentwood, supra, 406 Mich. at 153-154, 277 N.W.2d 475; Kropf v. Sterling Heights, supra, 391 Mich. at 175, 215 N.W.2d 179 and Kirk v. Tyrone Township, supra:

1. The ordinance is presumed to be reasonable and valid. Kropf v. Sterling Heights, supra, 391 Mich. at 162, 215 N.W.2d 179, quoting from Brae Burn, Inc. v. Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166 (1957).

2. The party attacking the ordinance has the burden of proving affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property.—it must appear that the clause attacked is an arbitrary fiat, a whimsical "ipse dixit", and that there is no room for a legitimate difference of opinion concerning its reasonableness. Kropf v. Sterling Heights, supra, 391 Mich. at 162, 215 N.W.2d 179.

3. To sustain an attack on a zoning ordinance, under the Michigan view, an aggrieved property owner must show that if the ordinance is in force the consequent restrictions on his property preclude its use for any purpose to which it is reasonably adapted. Kropf v. Sterling Heights, supra, 162-163, 215 N.W.2d 179.

4. Considerable weight will be given to the findings of the trial judge. Kropf v. Sterling Heights, supra, 163, 215 N.W.2d 179, quoting Christine Building Co. v. City of Troy, 367 Mich. 508, 518, 116 N.W.2d 816 (1962); Kirk v. Tyrone Township, supra, 398 Mich. at 439-440, 247 N.W.2d 848.

In this litigation, however, it is clear that an entirely different standard and rules regarding the validity of a zoning ordinance are applicable. The Michigan Supreme Court has decisively opined and ruled that a zoning regulation which would prevent the extraction of valuable natural resources is invalid unless "very serious consequences" will result from the proposed extraction.

Silva v. Ada Township, 416 Mich. 153, 156, 330 N.W.2d 663 (1982):

"We reaffirm the rule of Certain-teed Products Corp. v. Paris Township, 351 Mich. 434, 88 N.W.2d 705 (1958), that zoning regulations which prevent the extraction of natural resources are invalid unless `very serious consequences will result from the proposed extraction'". Silva, at 160, 330 N.W.2d 663:

"As the United States Court of Appeals for the Sixth Circuit said in Village of Terrace Park v. Errett, 12 F.2d 240, 243 (6th Cir.1926):

`There is—a substantial difference between an ordinance prohibiting manufacturing or commercial business in a residential district that may be conducted in another locality with equal profit and advantage, and an ordinance that wholely deprives the owner of land of its valuable mineral content.'"

In the Silva decision, the court reaffirmed the doctrine that zoning ordinances are presumed to be reasonable, and that a person challenging the ordinance has the burden of proving otherwise. Silva, supra, 158, 330 N.W.2d 663, citing Kropf, supra, 391 Mich. at 158, 215 N.W.2d 179, and Ed Zaagman, Inc. v. Kentwood, supra, 406 Mich. at 157, 277 N.W.2d 475. The Silva court then, however, went on to promulgate a decidedly different standard to be applied when enforcement of a zoning ordinance would prevent the extraction of natural resources. That standard, as set forth at pages 158-161 of 416 Mich., 330 N.W.2d 663 of Silva, is as follows:

"Zoning regulations seek to achieve a land use which serves the interest of the community as a whole. Because of the important public interest in extracting and using natural resources, this court has applied a more rigorous standard of reasonableness when the zoning would prevent the extraction of natural resources.

This court first noted that zoning which prevents the extraction of natural resources involves different considerations than zoning regulations generally in North Muskegon v. Miller, 249 Mich. 52, 57, 227 NW 743 (1929), which concerned a zoning ordinance preventing the drilling of oil wells:

`The courts have particularly stressed the importance of not destroying or withholding the right to secure oil, gravel or mineral from one's property, through zoning ordinances, unless some very serious consequences will follow therefrom. (emphasis supplied)'

In Certain-teed Products Corp. v. Paris Township, 351 Mich. 434, 467 88 N.W.2d 705, this court reaffirmed that zoning would not be sustained unless very serious consequences would result from the mining operations:

`To sustain the ordinance in such case there must be some dire need which, if denied the ordained protection, will result in very serious consequences'.

We again

...