Kyser v. Kasson Twp., Docket No. 136680.

CourtSupreme Court of Michigan
Citation786 N.W.2d 543,486 Mich. 514
Docket NumberCalendar No. 1.,Docket No. 136680.
PartiesEdith KYSER, Plaintiff-Appellee,v.Kasson TOWNSHIP, Defendant-Appellant.
Decision Date15 July 2010

486 Mich. 514
786 N.W.2d 543

Edith KYSER, Plaintiff-Appellee,
Kasson TOWNSHIP, Defendant-Appellant.

Docket No. 136680.
Calendar No. 1.

Supreme Court of Michigan.

Argued Nov. 3, 2009.
Decided July 15, 2010.

786 N.W.2d 544


786 N.W.2d 545
Olson, Bzdok & Howard, P.C. (by Christopher M. Bzdok and Michael C. Grant), for plaintiff.

Gerald A. Fisher and Running, Wise & Ford, P.L.C. (by Richard W. Ford and Thomas A. Grier), for defendant.

Bauckham, Sparks, Lohrstorfer, Thall & Seeber, PC (by John H. Bauckham), for Amici Curiae Michigan Townships Association.

Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Carol A. Rosati), for Amici Curiae Public Corporation Law Section.
786 N.W.2d 546
Richard K. Norton, for Amici Curiae American Planning Association and the Michigan Association of Planning.

Warner Norcross & Judd LLP (by Kenneth W. Vermeulen, John J. Bursch, and Ga~ tan Gerville-RZache), for Amici Curiae Michigan Aggregates Association.

Berry Reynolds & Rogowski, PC (by Susan K. Friedlaender), for Amici Curiae Michigan Paving & Materials Company and the Edward C. Levy Company.

Plunkett Cooney (by Mary Massaron Ross), for Amici Curiae Michigan Municipal League and the Michigan Municipal League Liability & Property Pool.

At issue here is: (1) whether the rule articulated in Silva v. Ada Twp., 416 Mich. 153, 330 N.W.2d 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rule violates the constitutional separation of powers; and (3) whether the “no very serious consequences” rule was superseded by the enactment of the exclusionary zoning provision, MCL 125.297a, of the Township Zoning Act (TZA).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 Further, we conclude that the rule is superseded by the exclusionary zoning provision, MCL 125.297a of the TZA, now MCL 125.3207 of the Zoning Enabling Act (ZEA).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.


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 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,

786 N.W.2d 547
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 N.W.2d 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, 755 N.W.2d 190 (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 community.” Id. Thus, the destruction of defendant's plan and the disruption to the community “constitutes a ‘very serious consequence.’ ” Id. at 774, 755 N.W.2d 190. We then granted defendant's application for leave to appeal. 483 Mich. 982, 764 N.W.2d 267 (2009).


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 N.W.2d 716 (2008).


Zoning constitutes a legislative function. Schwartz v. City of Flint, 426 Mich. 295, 309, 395 N.W.2d 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 N.W. 727 (1938). Because 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 N.W.2d 831 (1984). Recognizing that zoning is a legislative function, this Court has repeatedly stated that it “ ‘does not sit as a superzoning commission.’ ”

786 N.W.2d 548
Macenas v. Village of Michiana, 433 Mich. 380, 392, 446 N.W.2d 102 (1989) (citation and emphasis omitted); Brae Burn, Inc. v. Bloomfield Hills, 350 Mich. 425, 430-431, 86 N.W.2d 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, 86 N.W.2d 166. 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, 86 N.W.2d 166. The Due Process Clause is included in Const. 1963, art. 1, § 17 of the Michigan Constitution and provides in pertinent part: “No person shall ... be deprived of life, liberty or property, without due process of law....” “The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective.” Shavers v. Attorney General, 402 Mich. 554, 612, 267 N.W.2d 72 (1978). The level of the governmental interest that is sufficient depends on the nature of the affected private interest. See id. at 613 n. 37, 267 N.W.2d 72. When the individual interest concerns restrictions on the use of property through a zoning ordinance, the question is “ ‘ “whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare.” ’ ” Schwartz, 426 Mich. at 309, 395 N.W.2d 678, quoting Norwood Builders v. City of Des Plaines, 128 Ill.App.3d 908, 917, 84 Ill.Dec. 105, 471 N.E.2d 634 (1984), quoting Exch. Nat'l Bank v. Cook Co., 25 Ill.2d 434, 440, 185 N.E.2d 250 (1962). A zoning ordinance is presumed to be reasonable. Brae Burn, 350 Mich. at 432, 86 N.W.2d 166. Starting with such a presumption, the burden is upon the person challenging such an ordinance to overcome this presumption by proving that there is no reasonable governmental interest being advanced by the zoning ordinance. Id. Stated another way, the challenger must demonstrate “that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property.” Id. Under this standard, a zoning ordinance will be struck down only if it constitutes “an arbitrary fiat, a whimsical ipse dixit, and ... there is no room for a legitimate difference of opinion concerning its [un]reasonableness.” Id.2

786 N.W.2d 549

The “no very serious consequences” rule constitutes an exception to the “reasonableness” test for assessing the constitutionality of zoning regulations and provides that “regulations which prevent the extraction of natural resources are invalid unless ‘very serious consequences' will result from the proposed extraction.” Silva, 416 Mich. at 156, 330 N.W.2d 663. This rule appears to have originated in City of North Muskegon v. Miller, 249 Mich. 52, 54, 227 N.W. 743 (1929), which addressed whether a zoning ordinance could prohibit a landowner from drilling for oil on...

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