Silva v. Ada Tp.

• Decision Date: 27 August 1980
• Docket Number: Docket No. 45531
• Citation: 99 Mich.App. 601,298 N.W.2d 838
• Parties: A. Clare SILVA and Karen J. Silva, Plaintiffs-Appellants, v. TOWNSHIP OF ADA, Defendant-Appellee, and Carl Huisman and Cornelia Huisman, husband and wife, Albert John Dykstra, Timothy Holt and Karen Holt, husband and wife, Larry Osterink and DebbieOsterink, husband and wife, and James Vogt and Beverly Vogt, husband and wife,InterveningDefendants-Appellees. 99 Mich.App. 601, 298 N.W.2d 838
• Court: Court of Appeal of Michigan — District of US

Page 838

298 N.W.2d 838

A. Clare SILVA and Karen J. Silva, Plaintiffs-Appellants, v. TOWNSHIP OF ADA, Defendant-Appellee, and Carl Huisman and Cornelia Huisman, husband and wife, Albert

John Dykstra, Timothy Holt and Karen Holt, husband and wife,

Larry Osterink and DebbieOsterink, husband and wife, and

James Vogt and Beverly Vogt, husband and

wife,InterveningDefendants-Appellees.

Docket No. 45531.

99 Mich.App. 601, 298 N.W.2d 838

Court of Appeals of Michigan.

Aug. 27, 1980.

Released for Publication Dec. 9, 1980.

[99 MICHAPP 602] Robert W. Dilley, Grand Rapids, for plaintiffs-appellants.

Thomas J. Heiden, Grand Rapids, for Ada Tp.

Walter B. Freihofer, Grand Rapids, for all other defendants-appellees.

Before ALLEN, P. J., and WALSH and McDONALD, JJ. ^*

WALSH, Judge.

Plaintiffs challenge the constitutionality of the defendant township's zoning decision[99 MICHAPP 603] which prohibited the excavation of gravel on agriculturally zoned land.

Plaintiffs own an 80-acre parcel of land, bordered by Three Mile Road and Pettis Road, in Ada Township, Kent County, Michigan. In accordance with the township's Master Zoning Plan adopted in January, 1968, and reaffirmed in subsequent years, this land was classified as A-3 Agricultural. The permissible uses included, among others, general and specialized farming and single family residences. ¹ Its present use is divided, approximately evenly, between orchards (apple and cherry) and crops (corn and alfalfa). The property contiguous to plaintiffs' contains some agricultural and residential development and some land yet to be developed.

In February, 1978, plaintiffs entered into an agreement with the Northeast Gravel Company for the mining of gravel on the 80-acre parcel. Plaintiffs projected that over a period of 10 years, 860,000 cubic yards of gravel would be strip-mined, processed and transported.

In December, 1977, plaintiffs applied for the rezoning of the 80-acre parcel to the classification of P-1A "Planned Development-Natural Resources". After a public hearing, the Township Planning Commission recommended that the application be denied and the township board adopted this recommendation on March 27, 1978. On March 21, 1978, plaintiffs had filed a second [99 MICHAPP 604] application for rezoning, but it was treated as if it were the same as the first.

On June 2, 1978, plaintiffs filed a complaint in the Kent County Circuit Court alleging that the present zoning ordinance and defendant's refusal to grant the application for rezoning were unconstitutional because: (1) no reasonable governmental interest was being advanced; (2) plaintiffs were being arbitrarily and capriciously denied a legitimate use of the premises; (3) defendant's action amounted to a taking without just compensation, a denial of equal protection and a violation of due process. On November 15, 1978, a number of landowners intervened in this suit. At a trial spanning 6 days during the first three months of 1979, the circuit court examined 72 exhibits and heard testimony from 28 witnesses including plaintiffs, township and city officials, the landholders, agricultural experts, well drillers, gravel users and suppliers, appraisers, planners, a developer, a civil engineer and a golf course architect.

On April 25, 1979, the trial court entered judgment in favor of defendants. The court found that plaintiffs had failed to rebut the ordinance's presumption of validity and that the township's denial of the application for rezoning advanced reasonable governmental interests. The court concluded that plaintiffs' property can still be used for purposes for which it is reasonably adapted.

As an equity case, our review in this zoning matter is de novo. Kropf v. Sterling Heights, 391 Mich. 139, 163, 215 N.W.2d 179 (1974). On several occasions the Supreme Court has discussed the appropriate standards for examining the constitutionality of municipal zoning ordinances:

" 'The important principles require that for an ordinance to be successfully challenged plaintiffs prove:

" ' "(F)irst, that there is no reasonable governmental [99 MICHAPP 605] interest being advanced by the present zoning classification itself * * * or

" ' "(S)econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question." 391 Mich. 139, 158, 215 N.W.2d 179.

" 'The four rules for applying these principles were also outlined in Kropf. They are:

" '1. "(T)he ordinance comes to us clothed with every presumption of validity." 391 Mich. 139, 162, 215 N.W.2d 179, quoting from Brae Burn, Inc. v. Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166 (1957).

" '2. "(I)t is the burden of the party attacking to prove 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." 391 Mich. 139, 162, 215 N.W.2d 179, quoting Brae Burn, Inc.

" '3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted." 391 Mich. 139, 162-163, 215 N.W.2d 179.

" '4. "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases." 391 Mich. 139, 163, 215 N.W.2d 179, quoting Christine Building Co. v. City of Troy, 367 Mich. 508, 518, 116 N.W.2d 816 (1962).' " Ed Zaagman, Inc. v. Kentwood, 406 Mich. 137, 153-154, 277 N.W.2d 475 (1979), quoting Kirk v. Tyrone Twp., 398 Mich. 429, 439-440, 247 N.W.2d 848 (1976).

Plaintiffs maintain, however, that since the instant case involves the use of natural resources, a different set of standards should apply. This contention is founded on three Supreme Court cases which expressly favor the exploitation of natural resources. North Muskegon v. Miller, 249 Mich. 52, 227 N.W. 743 (1929); Bloomfield Twp. v. Beardslee, 349 Mich. 296, 84 N.W.2d 537 (1957), and Certain-Teed Products Corp. v. Paris Twp., 351 Mich. 434, 88 [99 MICHAPP 606] N.W.2d 705 (1958), are cited for the proposition that where an ordinance prohibits the extraction of minerals from the land, the burden of proof shifts to the municipality to demonstrate that the zoning law is reasonable ² and that a landowner may not be denied the right to extract minerals from his property through zoning ordinances unless it can be shown that consequences of the most serious nature will result from the process of extraction.

Plaintiffs claim that Zaagman, supra, and Kropf, supra, are inapposite here because they were limited to the issue of whether individuals were entitled to develop their lands for multiple family homes or mobile home parks in lands zoned for single family residences, and that they should have prevailed below because the township failed to present any proofs that it faced a "dire need" for protection from very serious consequences.

Plaintiffs' arguments are persuasive but more recent Supreme Court decisions have implicitly overruled the cases on which plaintiffs rely. In Zaagman, supra, the Supreme Court enunciated the applicable standards for determining the constitutional validity of all municipal zoning determinations. The Court made no mention of the continued viability of a separate standard for cases involving natural resources. More conclusively, in Kropf, supra, the Supreme Court expressly overruled this Court's decision in Bristow v. Woodhaven, 35 Mich.App. 205, 192 N.W.2d 322 (1971), which dealt with mobile home parks as a "preferred use" which shifted the burden of proof in a zoning case.

[99 MICHAPP 607] "Insofar as decisions of the Court of Appeals are based solely on the concept of "favored or preferred use" and the attendant shifting of burden of...