Kyser v. Kasson Tp.

Decision Date13 March 2009
Docket NumberDocket No. 136680.,COA No. 272516.
Citation761 N.W.2d 692,483 Mich. 905
CourtMichigan Supreme Court
PartiesEdith KYSER, Plaintiff-Appellee, v. KASSON TOWNSHIP, Defendant-Appellant.
Order

On order of the Court, the motions for leave to file briefs amicus curiae are GRANTED. The application for leave to appeal the May 6, 2008 judgment of the Court of Appeals is considered, and it is DENIED, there being no majority in favor of granting leave to appeal.

WEAVER, J., is not participating in this case because she has a past and current business relationship with Kasson Township Supervisor Fred Lanham and his family.

CORRIGAN, J. (dissenting).

Today's decision denies this Court the opportunity to inquire about the justification for past decisions of this Court that have read into the law provisions that were never placed there by the Legislature itself. As a consequence, the general rule of judicial deference to the decisions of local zoning authorities has been altered with regard to the extraction of natural resources, and the judiciary has been afforded a considerably greater role in questioning the judgments of such authorities and effectively acting as a super zoning commission.

I respectfully dissent from the order denying defendant's application for leave to appeal. I would grant leave to appeal because I believe that this Court should examine the unconstitutional implications of the "very serious consequences" rule first adopted in Silva v. Ada Twp., 416 Mich. 153, 330 N.W.2d 663 (1982).

Defendant Kasson Township denied plaintiff Edith Kyser's application to rezone her property for gravel mining. Defendant asserted that granting plaintiffs application would undermine its comprehensive zoning scheme and engender applications from numerous other property owners for a similar rezoning of their properties. Plaintiff filed suit, contending that defendant's refusal violated her substantive due process rights because "gravel mining on her property would cause no "very serious consequences" under Silva. After a bench trial, the Leelanau Circuit Court held that because plaintiffs request for rezoning would not result in very serious consequences, plaintiff could mine gravel on her property. The Court of Appeals affirmed in a divided decision. Kyser v. Kasson Twp., 278 Mich.App. 743, 755 N.W.2d 190 (2008). Defendant now seeks leave to appeal to this Court.

In Silva, the Court held that "zoning regulations which prevent the extraction of natural resources are invalid unless `very serious consequences' will result from the proposed extraction." Silva, supra at 156, 330 N.W.2d 663. The Silva Court characterized its holding as "reaffirming" the rule of Certain-Teed Products Corp. v. Pans Twp., 351 Mich. 434, 88 N.W.2d 705 (1958). Id. As Justice Ryan noted in his partial concurrence and dissent in Silva, however, "the supposed `rule' favoring the removal of natural resources unless Very serious consequences' would result was merely obiter dictum" in Certain-Teed Products and an earlier case on which the Silva majority also relied, City of North Muskegon v. Miller, 249 Mich. 52, 227 N.W. 743 (1929). Silva, supra at 165, 330 N.W.2d 663. Therefore, although ostensibly reaffirming the rule of Certain-Teed Products, the Silva Court adopted the 'Very serious consequences" rule for the first time. In so doing, Silva created a new rule without fully grappling with the unconstitutional implications of that rule.

In my view, this Court should reexamine the `Very serious consequences" rule for myriad reasons. First, the rule upsets the traditional separation of powers because it compels courts to engage in an expansive review that essentially crafts state and local zoning and environmental policy. This Court "does not sit as a superzoning commission"; instead, "[t]he people of the community, through their appropriate legislative body, and not the courts, govern its growth and its life." Robinson v. Bloomfield Hills, 350 Mich. 425, 430-431, 86 N.W.2d 166 (1957). In contrast, the "very serious consequences" rule violates this Court's well-established principle of not substituting "our judgment for that of the legislative body charged with the duty and responsibility in the premises." Id. at 431, 86 N.W.2d 166. If a reviewing court wishes to follow the Silva rule, the court must, in effect, substitute its opinion regarding the appropriateness of the designation at issue for the opinion of the local zoning authority, thereby exercising a legislative function.

Moreover, the rule stands in stark...

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