Whittaker Gooding Co. v. Scio Tp. Zoning Bd. of Appeals

• Citation: 117 Mich.App. 18,323 N.W.2d 574
• Decision Date: 01 September 1982
• Docket Number: Docket No. 56395
• Parties: WHITTAKER GOODING COMPANY, a Michigan corporation, Plaintiff-Appellant, v. SCIO TOWNSHIP ZONING BOARD OF APPEALS, and Scio Township Planning Commission, Defendants-Appellees. 117 Mich.App. 18, 323 N.W.2d 574
• Court: Court of Appeal of Michigan — District of US

Page 574

323 N.W.2d 574

WHITTAKER GOODING COMPANY, a Michigan corporation, Plaintiff-Appellant, v. SCIO TOWNSHIP ZONING BOARD OF APPEALS, and Scio Township

Planning Commission, Defendants-Appellees.

Docket No. 56395.

117 Mich.App. 18, 323 N.W.2d 574

Court of Appeals of Michigan.

Submitted Jan. 13, 1982.

Decided June 8, 1982.

Released for Publication Sept. 1, 1982.

[117 MICHAPP 19] Leonard K. Kitchen, Dexter, for plaintiff-appellant.

Reading & Etter, Ann Arbor, for defendants-appellees.

Before HOLBROOK, P. J., and J. H. GILLIS and HOEHN, ^* JJ.

HOLBROOK, Presiding Judge.

Plaintiff brought an action in Washtenaw Circuit Court for modification of a conditional use zoning permit granting him by the Scio Township Board of Trustees. The [117 MICHAPP 20] township (hereinafter defendant) moved for partial summary judgment. The circuit court granted defendant's motion and plaintiff appeals as of right.

Plaintiff owns a gravel pit in Scio Township located in a conditional use zoning area. Plaintiff approached the Scio Township Planning Commission for a conditional use permit. The commission recommended that the Scio Township Board of Trustees disapprove the permit application. The board of trustees followed this recommendation. Plaintiff appealed to the Scio Township Zoning Board of Appeals and was given a limited conditional use permit for a term of five years. Plaintiff then brought an action in the Washtenaw County Circuit Court for an order of superintending control requesting that at least eight different limitations in the permit be deleted.

Plaintiff alleged three grounds for its complaint: (1) the board of appeals' decision is arbitrary and capricious, (2) the board's decision reflects bias against the plaintiff, and (3) the board's decision violates the Michigan Environmental Protection Act of 1970. Primarily, plaintiff seeks an extension of the permit's five-year term.

Plaintiff's amended complaint contained a claim under the Environmental Protection Act (EPA), M.C.L. Secs. 691.1201-691.1207; M.S.A. Secs. 14.528(201)-14.528(207). Defendant moved for partial summary judgment against plaintiff's EPA claim, pursuant to GCR 1963, 117.2(1), for failure to state a claim upon which relief can be granted. The circuit court granted defendant's motion.

First it is claimed that summary judgment was improperly granted against plaintiff's claim under the Environmental Protection Act. Next, and last, it is claimed that the circuit court should have received new evidence in reviewing plaintiff's appeal.

[117 MICHAPP 21] Const.1963, art. 4, Sec. 52 provides:

"The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."

In response, the Legislature enacted the Environment Protection Act of 1970, M.C.L. Secs. 691.1201-691.1207; M.S.A. Secs. 14.528(201)-14.528(207). The EPA provides that parties may bring actions for declaratory and equitable relief against any other party, including the state or one of its political subdivisions,

" * * * for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction." M.C.L. Sec. 691.1202(1); M.S.A. Sec. 14.528(202)(1).

The plaintiff argues that prohibiting the mining of a natural resource, in this case gravel, can be a form of environmental impairment of the resource under the EPA. Neither party contests the fact that the gravel which plaintiff wishes to continue to mine is a natural resource.

The issue presented is one of first impression. This is not surprising, however, as Michigan's EPA was recently enacted in 1970, was the first legislation of its kind, and was designed to allow the courts to develop a new area of common law dealing with environmental quality. Ray v. Mason County Drain Comm'r., 393 Mich. 294, 304, 306, n 10 & accompanying text, 224 N.W.2d 883 (1975).

Although the constitution initially declares that [117 MICHAPP 22] both conservation and development are of paramount public concern, the constitution does not state that the public concern is to promote the development of natural resources. While the constitution provides for the protection of resources themselves, the plaintiff wishes to provide for the protection of developers of resources. Further, the EPA provides for suits to be brought only "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction". The EPA does not provide for suits to be brought for the protection of the development of natural resources. Section 4 of the EPA, M.C.L. Sec. 691.1204(1); M.S.A. Sec. 14.528(204)(1), provides that the courts may impose equitable relief "to protect the air, water and other natural resources". The section does not provide for equitable relief to protect the development of or exploration for any resource.

The Supreme Court has stated that, to make a prima facie case under the EPA, the plaintiff must show that the defendant's conduct has, or is likely to, "pollute, impair or destroy the air, water or other natural resources". Ray, supra, 393 Mich. at 309, 224 N.W.2d 883. Plaintiff does not allege any pollution, impairment, or destruction of a natural resource; rather, plaintiff alleges that his exploitation, mining, and selling of a natural resource will be impaired.

The word "impair" in the EPA has been defined by this Court to mean " '[t]o weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner' ". Michigan United Conservation Clubs v. Anthony, 90 Mich.App. 99, 105-106, 280 N.W.2d 883 (1979). A zoning permit which prohibits a developer from mining every last bit of gravel in a pit would not seem to impair any natural resource. Indeed, the [117 MICHAPP 23] Supreme Court has stated that "if oil or gas development does not take place, the oil and gas will not be adversely impacted". West Michigan Environmental Action Council v. Natural Resources Comm. 405 Mich. 741, 759, 275 N.W.2d 538 (1979).

The EPA was designed to protect the natural resources themselves rather than an exploiter's mining of the resources. We therefore agree with the trial court and hold that a claim may not be brought under the EPA against a party whose actions have inhibited a plaintiff from mining a natural resource.

Plaintiff asserts in addition, however, that its pit contains the only known commercially usable deposit of gravel of the same specifications in the Scio Township area. If plaintiff is not allowed to remove all of the gravel from its pit, builders in the area will have to have gravel trucked in from other areas. The trucks bringing the gravel, argues plaintiff, will cause the burning of diesel oil when future loads of gravel are trucked into the area. Not only will oil, a natural resource, be depleted, but the air will be polluted from...