Kyser v. Kasson Twp

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 15, 2010

STATE OF MICHIGAN

SUPREME COURT

EDITH KYSER,

Plaintiff-Appellee,

v No. 136680

KASSON TOWNSHIP,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MARKMAN, J.

At issue here is: (1) whether the rule articulated in Silva v Ada Twp, 416 Mich

153; 330 NW2d 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consequences” rule was superseded by the enactment of the exclusionary zoning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superseded by the exclusionary zoning provision, MCL 125.297a of the TZA, now MCL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.

I. FACTS AND HISTORY

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

2
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, 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 NW2d 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 (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

3
community.” Id. Thus, the destruction of defendant’s plan and the disruption to the

community “constitutes a ‘very serious consequence.’” Id. at 774. We then granted

defendant’s application for leave to appeal. 483 Mich 982 (2009).

II. STANDARD OF REVIEW

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 NW2d 716 (2008).

III. ANALYSIS

A. JUDICIAL REVIEW OF ZONING

Zoning constitutes a legislative function. Schwartz v City of Flint, 426 Mich 295,

309; 395 NW2d 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 NW 727 (1938). Because

1
MCL 125.3201(1) provides:

A local unit of government may provide by zoning ordinance for the
regulation of land development and the establishment of 1 or more districts
within its zoning jurisdiction which regulate the use of land and structures
to meet the needs of the state’s citizens for food, fiber, energy, and other
natural resources, places of residence, recreation, industry, trade, service,
and other uses of land, to ensure that use of the land is situated in
appropriate locations and relationships, to limit the inappropriate
overcrowding of land and congestion of population, transportation systems,
and other public facilities, to facilitate adequate and efficient provision for
transportation systems, sewage disposal, water, energy, education,
recreation, and other public service and facility requirements, and to
promote public health, safety, and welfare.

4
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 NW2d

831 (1984). Recognizing that zoning is a legislative function, this Court has repeatedly

stated that it “‘does not sit as a superzoning commission.’” Macenas v Village of

Michiana, 433 Mich 380, 392; 446 NW2d 102 (1989) (citation and emphasis omitted);

Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 430-431; 86 NW2d 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. 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. 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 NW2d 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. 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

5
Mich at 309, quoting Norwood Builders v City of Des Plaines, 128 Ill App 3d 908, 917;

471 NE 2d 634 (1984), quoting Exch Nat’l Bank v Cook Co, 25 Ill 2d 434, 440; 185

NW2d 250 (1962). A zoning ordinance is presumed to be reasonable. Brae Burn, 350

Mich at 432. 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

2
Although the standard of review for zoning regulations and decisions is
characterized as a “reasonableness” test, it bears analogy to the “rational basis” standard
of review that is used to test the constitutionality of legislation where there are no
“suspect” factors or “fundamental rights” involved or where “heightened scrutiny” is
otherwise inapposite. Phillips v Mirac, Inc, 470 Mich 415, 432-433; 685 NW2d 174
(2004). In TIG Ins Co, Inc v Dep’t of Treasury, 464 Mich 548, 557-558; 629 NW2d 402
(2001), this Court defined “rational basis” review as follows:

“Rational basis review does not test the wisdom, need, or
appropriateness of the legislation, or whether the classification is made with
‘mathematical nicety,’ or even whether it results in some inequity when put
into practice.” Crego v Coleman, 463 Mich 248, 260; 615 NW2d 218
(2000). Rather, it tests only whether the legislation is reasonably related to
a legitimate governmental purpose. The legislation will pass
“constitutional muster if the legislative judgment is supported by any set of
facts, either known or which could reasonably be assumed, even if such
facts may be debatable.” Id. at 259-260. To prevail under this standard, a
party challenging a statute must overcome the presumption that the statute

6
 B. “NO VERY SERIOUS CONSEQUENCES” RULE

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. This rule appears to have originated in City of North Muskegon v Miller,

249 Mich 52, 54; 227 NW 743 (1929), which addressed whether a zoning ordinance

could prohibit a landowner from drilling for oil on his property. This Court observed:

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. Village of Terrace Park v. Errett [12
F2d 240 (CA 6, 1926)]. [Id. at 57.][3]

is constitutional. Thoman v Lansing, 315 Mich 566, 576; 24 NW2d 213
(1946).
3
Errett involved a zoning ordinance that prohibited gravel mining in a suburb of
Cleveland, Ohio. The United States Court of Appeals for the Sixth Circuit asserted:

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 wholly deprives the owner of land of its valuable
mineral content. [Id. at 243.]

The Sixth Circuit neither discussed nor applied what emerged in Miller as the “no
very serious consequences” rule. Instead, it considered the diminishment of property
value if gravel mining was prohibited as a relevant factor in determining whether the
zoning ordinance constituted a reasonable exercise of the police power. Id. at 242. The
court concluded that the ordinance was not such an exercise. It is worth noting that
Errett was decided seven months before the landmark decision of Village of Euclid v
Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926), in which the United
States Supreme Court established the standard of review for adjudicating due process

7
In defining the applicable test, Miller stated that “a zoning ordinance [must] be

reasonable, and the reasonableness becomes the test of its legality.” Id. This Court

further explained that a zoning ordinance must be “‘reasonably necessary for the

preservation of public health, morals, or safety . . . where such necessity appears either

from existing conditions or reasonable anticipation of future growth and development.’”

Id. at 58, quoting Errett, 12 F2d at 241.

Viewed in context, the “no very serious consequences” rule of Miller was not a

rule, but a definition of one factor to consider when assessing whether a zoning ordinance

was reasonable. Rather than applying this rule to the zoning ordinance in that case, this

Court held that the zoning ordinance was unreasonable because the restriction on the

property’s use rendered the property practically worthless. Id. at 57. Accordingly, we

determined that the zoning ordinance, as applied, was “unreasonable and confiscatory,

and therefore illegal.” Id. at 59.4

claims against zoning ordinances-- the reasonableness standard. Before Euclid, the states
had been divided as to whether zoning constituted a constitutional exercise of the police
power. Euclid held that it was. 1 Salkin, American Law of Zoning (5th ed), § 2:21.
4
Once this Court concluded that the zoning ordinance was unreasonable as
applied, it turned its attention to a companion drilling ordinance, holding that it was
reasonable because the proposed drilling could potentially contaminate the city’s water
supply. Id. at 62-63. Although there was evidence that the landowner could avoid this
danger, we held that “it is not within our province to regulate the action of the city
officials when they act within their legal rights.” Id. at 63. It is unclear whether we also
applied the “no very serious consequences” rule to the drilling ordinance. Admittedly,
potentially contaminating the city’s water supply constitutes a “very serious
consequence.” However, potential contamination of the water supply would also be
independently sufficient to conclude that the drilling ordinance was reasonable.

8
 For almost three decades, Miller was viewed as standing for two propositions,

neither of which embodied a “no very serious consequences” rule. First, if “the property

involved was unfit for the use to which it was restricted, [then] the ordinance was

unreasonable and confiscatory and, therefore, illegal.” Pleasant Ridge v Cooper, 267

Mich 603, 606; 255 NW 371 (1934); Hammond v Bloomfield Hills Bldg Inspector, 331

Mich 551, 557; 50 NW2d 155 (1951); Ervin Acceptance Co v City of Ann Arbor, 322

Mich 404, 408; 34 NW2d 11 (1948); Oschin v Redford Twp, 315 Mich 359, 363; 24

NW2d 152 (1946). Second, a zoning ordinance must be “reasonable in its operation,”

and an “arbitrary action or the unreasonable exercise of authority may not be justified.”

Hitchman v Oakland Twp, 329 Mich 331, 335; 45 NW2d 306 (1951); Redford Moving &

Storage Co v Detroit, 336 Mich 702, 707; 58 NW2d 812 (1953); Grand Trunk R Co v

Detroit, 326 Mich 387, 398; 40 NW2d 195 (1949).

The “no very serious consequences” rule resurfaced in the late 1950s in two

opinions, Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537 (1957), and

Certain-teed Prod Corp v Paris Twp, 351 Mich 434; 88 NW2d 705 (1958). In both

cases, Justice BLACK, citing Miller, applied the rule without articulating any due process

considerations with regard to whether the zoning ordinance was reasonable.5 Also in

5
In Beardslee, Justice BLACK issued a “concurring” opinion, although it was
actually the majority opinion because three justices joined this opinion; only two justices
joined Justice SMITH’s asserted “lead” opinion. Later, in Certain-teed, Justice BLACK’s
opinion is presented as a “concurring in part and dissenting in part” opinion. However,
again, three justices joined Justice BLACK’s opinion and only one joined Justice
EDWARDS’ asserted “lead” opinion while another concurred in the result of the lead
opinion.

9
both cases, the rationale for the rule seemed predicated on the ideas that natural resources

can only be extracted from where they are found and that a local government cannot zone

beneath the surface.6 Additionally, in both cases the threshold question was viewed as

whether the proposed mining operations would create an enjoinable nuisance.7

In Beardslee, 349 Mich at 301, the defendant landowner was enjoined from

surface mining gravel on a parcel of land that was not zoned for that use. While the

“lead” opinion upheld the zoning ordinance because it was “reasonable,”8 Justice BLACK

6
Other than Miller and Errett, Justice BLACK does not cite authority for the
proposition that a local government cannot zone beneath the surface; neither Miller nor
Errett appears to stand for this proposition. Rather, a local government is empowered to
establish zoning ordinances to regulate land development and to “regulate the use of land
and structures to meet the needs of the state’s citizens for . . . natural resources . . . .”
MCL 125.3201(1). There are no apparent distinctions in the law between regulating
surface and subsurface lands. Nevertheless, even assuming that a local government
cannot zone beneath the surface, it can still regulate the surface, including any land use
and structures on the surface that may be created in support of subsurface mining.
7
Although nuisance is obviously one harm that zoning regulations seek to prevent,
since at least Euclid, zoning laws have never been confined to only preventing nuisances.
Euclid, 272 US at 387-388.
8
In response to the argument in Beardslee that a landowner has a “‘legal right to
exploit natural resources where they may be found,’” Justice SMITH stated:

Attractive though the argument may seem upon its first reading, it
must be obvious that a logical application of its principle would be
destructive of all zoning. For in each case the particular parcel has, it is
always asserted, some peculiar utility: it is an ideal spot for a motel, or a
factory, or a junk yard, or what not. It has that contiguity to traffic, that
peculiar topographical structure, that supply of water or shade, which
makes it unique. Yet, just as the surface user desired by the owner must
give way, at times, to the public good, as must the subsurface exploitation.
In each case the question is whether, on the peculiar facts before us, the
ordinance is a reasonable regulation in the interests of the public good, or

10
in his majority opinion rejected this theory and upheld the trial court’s ruling on the

theory that the gravel mining operation would create a public nuisance. Id. at 310-311.

He explained that he could not uphold the ordinance on the alternate constitutional

ground supported by the “lead” opinion because of “concern over the implications of

zoning the depths distinguished from zoning the surface,” and cited the “no very serious

consequences” rule in Miller and Errett. Id. at 310-311.

In Certain-teed, 351 Mich at 439, the plaintiff was denied a permit to mine and

manufacture gypsum in a 500-foot area zoned for various industrial uses, including

gypsum mining, and was denied a permit to extend the industrial zone by 750 feet. The

first issue was whether the defendant township erred by rejecting the plaintiff’s proposed

construction of a manufacturing facility within the industrial zone and its requested

extension of 750 feet for the same purpose. Id. at 445-446. The second issue was

whether the zoning ordinance could prohibit subsurface mining if there was minimal

surface interference within areas zoned for agricultural use. Id. In his majority opinion,

Justice BLACK agreed with the “lead” opinion that the ordinance did not prohibit the

plaintiff’s proposed mining operation. However, concerned about a zoning ordinance

that attempted to regulate subsurface mining, he stated:

As an ordinance enacted pursuant to our township rural zoning act
projects its regulatory tentacles toward nether regions, the proponent side of
the “debatable question” is progressively weakened and the contestant
voice is correspondingly strengthened. This I think was made clear by the
warning rule of City of North Muskegon v. Miller, 249 Mich 52. To sustain

whether it is an arbitrary and whimsical prohibition of a property owner’s
enjoyment of all of the benefits of his title. [Id. at 303.]

11
 the ordinance in such case there must be some dire need which, if denied
the ordained protection, will result in “very serious consequences.” So, and
if the ordinance in its proposed application to mining fails to meet the
test . . . , the result must be a judicial determination of constitutional
unreasonableness. [Id. at 466-467.]

This represents the first occasion in which the “no very serious consequences” rule was

offered as a constitutional test of reasonableness, and as a sufficient test of

reasonableness. While Justice BLACK concluded that the zoning ordinance did not

prohibit mining, he was not convinced that the mining operation would not create an

enjoinable nuisance, even though the landowner presented evidence that it could avoid

this. Id. at 468. However, unlike in Miller, in Certain-teed, this Court allowed the

landowner to proceed with its mining operation provided that it would not create an

enjoinable nuisance. Id. at 470-473.9 Therefore, in contrast to Miller, the rule as applied

in Certain-teed made it considerably more difficult for a local government to regulate the

extraction of natural resources.

After Certain-teed, the “no very serious consequences” rule was not applied again

until Silva, over 20 years later. In Silva, we asserted that we were reaffirming the rule

originally articulated in Miller and Certain-teed. Under this rule, “[t]he party challenging

the zoning has the burden of showing that there are valuable natural resources and that no

‘very serious consequences’ would result from the extraction of those resources.” Silva,

416 Mich at 162. We explained that the basis for the “no very serious consequences”

9
We then remanded to the trial court for ongoing judicial supervision of the
plaintiff’s mining operation, id. at 472-473, and indicated that an injunction might be
necessary if the mining operation became a future nuisance. Id. at 470-471.

12
rule, or the “more rigorous standard of reasonableness,” was the “important public

interest in extracting and using natural resources” and that “[n]atural resources can only

be extracted from the place where they are located and found.” Id. at 158-159.

Additionally, we expressed concern with an “‘ordinance that wholly deprives the owner

of land of its valuable mineral content.’” Id. at 160, quoting Errett, 12 F2d at 243. Thus,

the Silva rule made it even more difficult than Certain-teed for a local government to

limit the extraction of natural resources through zoning ordinances.10

In sum, the “no very serious consequences” rule originated in Miller as but a

single factor in determining whether a zoning ordinance that regulates the extraction of

natural resources is reasonable. The “rule” was not mentioned again for 30 years until

Beardslee and Certain-teed, in which it was transformed from one factor in the test of

reasonableness into a sufficient test of reasonableness. Furthermore, in Beardslee and

Certain-teed, the “very serious consequences” were confined to enjoinable nuisances,

although a landowner could nevertheless proceed under judicial supervision if the

nuisance could be avoided. Then, after another 20 years, the rule reemerged in Silva, and

was transformed to signify that “zoning regulations which prevent the extraction of

natural resources are invalid unless ‘very serious consequences’ will result from the

proposed extraction,” and without consideration being given to judicial supervision.

10
Justice RYAN, concurring in part and dissenting in part, observed that the
Court’s decision was unlike the decision in Certain-teed because the plaintiffs in the
earlier case “were not given carte blanche to develop natural resources, and the Court’s
opinion explicitly contemplated that in the future an injunction shutting down the mining
operation might be proper.” Id. at 165.

13
Silva, 416 Mich at 156. As the rule evolved, it has become progressively more difficult

for a local government to regulate the extraction of natural resources by zoning

ordinances.

C. CONSTITUTIONAL REQUIREMENTS

The first question we must address is whether the “no very serious consequences”

rule is a constitutional requirement where a zoning ordinance purports to limit or prevent

the extraction of natural resources. As already discussed, a zoning ordinance or decision

is considered valid, i.e., does not violate the Due Process Clause, if it meets the test of

“reasonableness.” That is, a zoning ordinance is presumed to be reasonable, and a person

challenging such an ordinance carries the burden of overcoming this presumption by

proving that there is no reasonable governmental interest being advanced by the

ordinance. Brae Burn, 350 Mich at 432. While the “no very serious consequences” rule

may have originated with Miller as a factor to consider in determining the reasonableness

of a zoning ordinance, its later applications were not based on traditional due process

considerations. From a review of these cases, the central theme that gave rise to the “no

very serious consequences” rule is that natural resources can only be extracted from

where they are located. Errett, 12 F2d at 243. Two premises emerged: that prohibiting a

landowner from extracting natural resources “‘wholly deprives the owner of land of its

valuable mineral content,’” Silva, 416 Mich at 159-160, quoting Errett, 12 F2d at 243,

and that “[p]reventing the extraction of natural resources harms the interests of the

public . . . .” Silva, 416 Mich at 160.

14
 The first of these premises implies that extracting natural resources is somehow a

“preferred” land use that defines a more valuable or profitable use of the property than

other types of land use.11 However, a zoning ordinance is not unreasonable just because

a prohibited land use is more profitable than the land uses allowed by the zoning

ordinance. See Brae Burn, 350 Mich at 432-433.12 With regard to the value or

profitability of land, there is no obvious difference in kind between being prevented from

extracting resources and being prevented from using the land in any other way. A wide

11
In effect, the “no very serious consequences” rule transformed natural resource
extraction into a preferred land use, a doctrine that this Court expressly rejected in Kropf
v Sterling Hts, 391 Mich 139; 215 NW2d 179 (1974). In Silva, Justice RYAN, in dissent,
opined that the majority had effectively overruled Kropf. In response, Justice LEVIN
observed that Kropf involved the “validity of zoning ordinances in general,” and did not
specifically address the no “very serious consequences” rule. Silva, 416 Mich at 161.
Ironically, to support its conclusion that the “no very serious consequences” rule-- a rule
that creates a preferred land use-- sets forth a constitutional test, the dissent relies on the
due process concerns raised in Kropf. Post at 3. While the dissent quotes Kropf in this
regard, it neglects to include the last three sentences of the paragraph:

When First Amendment rights are being restricted we require the
state to justify its legislation by a “compelling” state interest. With regard
to zoning ordinances, we only ask that they be “reasonable”. And, as we
have stated, they are presumed to be so until the plaintiff shows differently.
[Kropf, 391 Mich at 158.]

Thus, while this Court explained various due process concerns of zoning regulations, the
test used in Kropf was nevertheless based on reasonableness, as is our holding in the
instant case.
12
Where a zoning ordinance goes too far, it may be deemed to be a “taking” of
private property that requires just compensation under the United States and Michigan
constitutions, US Const, Am V; Const 1963, art 10, § 2. Bevan v Brandon Twp, 438
Mich 385, 389-390; 475 NW2d 37 (1991). In Michigan, to establish a taking, “[t]he
owner must show that the property is either unsuitable for use as zoned or unmarketable
as zoned.” Id. at 403, citing Kirk v Tyrone Twp, 398 Mich 429, 444; 247 NW2d 848
(1976). There are no “taking” claims in this case.

15
array of land uses that are viewed as reasonable in general, including uses that are well-

suited to a particular property, can be excluded on the basis of a zoning ordinance,

provided that the ordinance is reasonable. When compared with any other unique, and

potentially valuable, attributes of a particular property-- its location, its view, its size or

configuration, its terrain, its lakes and ponds and wildlife-- minerals on a property do not

render it any more unique or valuable in a way that would justify elevating mineral

extraction to a specially protected land use by judicial decree. There is simply no basis in

the zoning laws of our state, or in our constitution, for judicially adopting such a

distinction.

The second premise-- that the public is harmed by preventing the extraction of

mineral resources-- presumes that the natural resources are in demand by the public. The

flaw of the “no very serious consequences” rule is that it is built on the premise that such

resources are always in demand by the public, and, therefore, unless there are “very

serious consequences,” local governments must always defer to the property owner where

a zoning regulation affects natural resource extraction. Indeed, in the instant case, the

trial court specifically determined that large quantities of gravel were available from

other sources within the township and that this supply would last well into the “latter part

of the 21st century.” Accordingly, the trial court “conclude[d] that the public interest in

[plaintiff’s] gravel is not high.” Despite this, the trial court was compelled under the “no

very serious consequences” rule to enjoin defendant from enforcing what the court

otherwise would have viewed as a reasonable zoning ordinance.

16
 Further, on the basis of a presumed public demand for resources, the “no very

serious consequences” test essentially elevates one particular aspect of the “public

interest” above all competing aspects, enabling a single consideration to trump all other

considerations unless there are “very serious consequences.” Through this means, the

“no very serious consequences” rule redefines what constitutes the “public interest” and

compels communities to allow land uses that may be viewed as contrary to the “public

interest.” However, all that the constitution’s Due Process Clause compels is that a

zoning ordinance be reasonably designed and administered to protect the public health,

safety, and welfare of the community, and that fair procedures be accorded to participants

in the process. Brae Burn, 350 Mich at 431-432. We are unable to discern in the

constitution any obligation that such a rule be specifically interposed in the zoning

process. While the “public interest” in mineral extraction is undeniably one aspect of the

overall “public interest,” we are not persuaded that the constitution compels either that it

be accorded specific weight, or that a particular balancing invariably be undertaken, in

the public’s calculations of what is “reasonable” and what is in the “public interest.” The

proper consideration of these many “public interests” is best left to the Legislature and

local communities rather than the judiciary.13

13
As additional justification for the rule, the dissent relies on language in Silva, in
which this Court reasoned that “[p]reventing the extraction of natural resources harms the
interests of the public as well as those of the property owner by making natural resources
more expensive.” Silva, 416 Mich at 160. However, neither Silva nor the dissent cites
any legal authority for the proposition that a constitutional standard that is less deferential
to the zoning authority is required whenever a regulation makes a natural resource, or any
other product, more or less expensive.

17
 Plaintiff asserts that the “no very serious consequences” rule is simply a “species”

of the reasonableness standard. However, we believe that the rule represents a very

significant departure from that standard. Under the rule, a zoning ordinance will be

struck down unless “very serious consequences” will result from the extraction of natural

resources, without regard to whether the ordinance constitutes a reasonable means of

addressing the harm that a mining operation might impose on the community. Silva, 416

Mich at 156. Thus, rather than presuming that a zoning ordinance is valid, the rule

requires just the opposite presumption: that a zoning ordinance pertaining to the

regulation of natural resource extraction is invalid and to be upheld if the ordinance is the

only means to avoid the “very serious consequences” that would otherwise result.

Moreover, even though the rule as set forth in Silva specifies that the party challenging

the ordinance carries the burden of proof, in practice, he or she must merely demonstrate

that no “very serious consequences” will result from the extraction of resources. Id. at

162. The party need not show that the ordinance is unreasonable, which is the only

showing pertinent to the constitution. Once the challenger has made a preliminary

showing that “no very serious consequences” will obtain, the burden shifts to the

community to prove otherwise, i.e., to demonstrate that the proposed mining will, in fact,

cause “very serious harm” to the community. Otherwise, the ordinance is rendered null

and void, and the proposed mining can proceed. It is simply not enough that the

community demonstrate that its zoning ordinance is “reasonable.”14 For these reasons,

14
The dissent claims that we conclude “without analysis” that the cases holding

18
we do not believe that the “no very serious consequences” rule is simply a variation upon

the “reasonableness” test, and therefore hold that the rule is not a constitutional

requirement.15

that the “no very serious consequences” rule was constitutionally mandated were
erroneously decided, and that we are “ignor[ing]” the constitutional underpinnings of the
rule. Considering that this opinion fully examines the rule’s evolution, as well as its
various rationales, we do not view this criticism as well-founded. Indeed, it is the dissent
that fails almost completely to explain why the “no very serious consequences” rule is
one of “constitutional dimensions.” While the dissent argues that the rule is grounded in
due process, it ignores the fact that the rule as applied in Silva constitutes a significant
departure from the traditional reasonableness test-- a test that is clearly grounded in the
“constitutional dimensions” of due process.
15
For the reasons set forth above, we believe that the cases that have held that the
“no very serious consequences” rule is constitutionally mandated were wrongly decided.
Although application of the doctrine of stare decisis is generally the preferred course of
action by this Court, for it “‘promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial decisions, and contributes to
the actual and perceived integrity of the judicial process,’” it is not an inexorable
command. Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting
Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998).
“Indeed, these same values are also furthered by judicial decisions that are neutrally
grounded in the language of the law, by a legal regime in which the public may read the
plain words of its law and have confidence that such words mean what they say and are
not the exclusive province of lawyers.” Robertson v Daimler Chrysler Corp, 465 Mich
732, 756; 641 NW2d 567 (2002). This is especially true with regard to judicial decisions
interpreting constitutional provisions. Indeed, the policy of stare decisis “is at its weakest
when we interpret the Constitution because our interpretation can be altered only by
constitutional amendment or by overruling our prior decisions.” Agostini v Felton, 521
US 203, 235; 117 S Ct 1997; 138 L Ed 2d 391 (1997). In fact, it is “‘our duty to re-
examine a precedent where its reasoning or understanding of the Constitution is fairly
called into question.’” Robinson, 462 Mich at 464 (citations omitted). We further
believe that overruling these cases will not result in “practical, real-world dislocations.”
Id. at 466. For these reasons, we overrule those cases that have held that the “no very
serious consequences” rule is constitutionally mandated.

19
 D. SEPARATION OF POWERS

The second question we must consider is whether the “no very serious

consequences” rule violates the constitutional separation of powers. The fundamental

principles of separation of powers are embodied in Michigan’s Constitution. Const 1963,

art 3, § 2 of the Michigan Constitution provides:

The powers of government are divided into three branches:
legislative, executive and judicial. No person exercising powers of one
branch shall exercise powers properly belonging to another branch except
as expressly provided in this constitution.

In Commonwealth of Massachusetts v Mellon, 262 US 447, 488; 43 S Ct 597; 67 L Ed

1078 (1923), the United States Supreme Court explained the concept of separation of

powers:

The functions of government under our system are apportioned. To
the legislative department has been committed the duty of making laws; to
the executive the duty of executing them; and to the judiciary the duty of
interpreting and applying them in cases properly brought before the courts.
The general rule is that neither department may invade the province of the
other and neither may control, direct or restrain the action of the other.

As stated, zoning involves the exercise of a legislative function. Schwartz, 426 Mich at

309. While it may be appropriate for this Court to review statutes and ordinances to

discern whether there is a rational basis for such laws, this Court does “not substitute our

judgment for that of the legislative body charged with the duty and responsibility in the

premises.” Brae Burn, 350 Mich at 431.

In Silva, this Court established the “no very serious consequences” rule “[b]ecause

of the important public interest in extracting and using natural resources.” Silva, 416

Mich at 158. In effect, this judicially created rule established a statewide public policy

20
that prefers natural resource extraction to alternative public policies. However, Const

1963, art 4, § 52 of the Michigan Constitution 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. [Emphasis added.]

Michigan’s constitution directs the Legislature, not the judiciary, to provide for the

protection and management of the state’s natural resources.16 As observed in Devillers v

Auto Club Ins Ass’n, 473 Mich 562, 589; 702 NW2d 539 (2005), policy-making is at the

core of the legislative function.17 By preferring the extraction of natural resources to

competing public policies, the “no very serious consequences” rule usurps the

responsibilities belonging to both the Legislature and to self-governing local

communities.

Additionally, the “no very serious consequences” rule requires courts to engage in

an expansive and detailed analysis of land-use considerations as to which they have no
16
While the dissent relies on the first sentence of Const 1963, art 4, § 52, to
support its view that the ‘no very serious consequences’ rule of Silva is constitutionally
mandated, it dismisses the second sentence that directs the Legislature to protect the
state’s natural resources. Furthermore, the dissent does not explain how a rule that
always favors the recovery of natural resources, even when such resources are not in high
demand, is in accord with Const 1963, art 4, § 52, which declares that both conservation
and development are paramount public concerns. Const 1963, art 4, § 52 is an obviously
hortatory provision of the Constitution, and its exhortations implicate multiple objectives
that may often be in conflict.
17
This Court has the authority to establish and modify the common law. Const
1963, art 3, § 7; see also Placek v Sterling Hts, 405 Mich 638, 656-657; 275 NW2d 511
(1979). However, at least outside the realm of the common law, policy decisions are a
legislative function. Devillers, 473 Mich at 589.

21
particular expertise. To assess the myriad factors that are relevant to land-use planning in

hundreds of communities across this state requires a decision-making process for which

the judicial branch is the least well-equipped among the branches of government. Such

decision-making entails the solicitation of a broad range of disparate views and interests

within a community, premised upon widely different visions of that community’s future

and widely varying attitudes toward “quality of life” considerations, and then a balancing

of these views and interests in ways that are not easily susceptible to judicial standards.

Indeed, in the instant case, a substantial portion of the trial court’s decision consisted of

its review of potential “very serious consequences” raised by defendants and an

assessment that none of those consequences, in its judgment, were serious enough to

prohibit mining on the property. The court also reviewed potential configurations of the

township’s gravel mining district and alternative boundaries, opining that it “is not at all

clear that [the] district is necessarily the ideal district,” and that adding to the district

“from time to time is not necessarily a bad idea.” However, the trial court also

questioned how it could prevent a large portion of the township from “becoming a gravel

pit,” and asserted that “some thought about ‘where does this end’ probably would be a

good idea.” In essence, although the trial court undertook conscientiously to do what this

Court has directed it to do, the court’s deliberations illustrate the kind of balancing of

factors, line-drawing, policy judgments, and exercise of discretion that belong to

legislative bodies exercising the constitution’s “legislative power.” See Brae Burn, 86

Mich at 431. As this case demonstrates, the “no very serious consequences” rule

22
unavoidably requires a trial court to arrogate unto itself responsibilities akin to that of a

super-zoning commission. Id. at 430-431.

Ironically, the “no very serious consequences” rule itself potentially creates “very

serious consequences” because the rule effectively compels that mineral extraction

zoning decisions be made on a case-by-case basis, without methodical consideration

being given to other long-term concerns inherent in land-use planning. See Greater Bible

Way Temple of Jackson v City of Jackson, 478 Mich 373, 389; 733 NW2d 734 (2007)

(“A decision whether to rezone property does not involve consideration of only a

particular or specific user or only a particular or specific project; rather, it involves the

enactment of a new rule of general applicability, a new rule that governs all persons and

all projects.”). This ad hoc and piecemeal approach to rezoning undermines the efforts of

local governments to provide stable land-use development. In Schwartz, 426 Mich at

313, this Court observed in this regard:

Even if the practice [of judicial rezoning] did not offend the
separation of powers, the judiciary’s zoning track record is not good. See,
generally, Babcock, The Zoning Game Revisited (1985). Zoning, by its
nature, is most uniquely suited to the exercise of the police power because
of the value judgments that must be made regarding aesthetics, economics,
transportation, health, safety, and a community’s aspirations and values in
general. By the same token, zoning, which requires linedrawing that
oftentimes “by its nature [is] arbitrary,” . . . is uniquely unsuited to the
judicial arena.

In the case at bar, the township planned its gravel district with the community’s active

participation, and balanced the economic considerations that gravel mining brought to the

community with the impact of such mining on the local “quality of life.” However, the

“no very serious consequences” rule may well dictate rezoning large portions of the

23
township that have been placed outside the mining zone, thereby defeating the township’s

own exercises in deliberation, planning, and balancing.

It is the role of the Legislature to establish natural resources policy, and the role of

local legislative bodies to plan for and regulate land use in their communities in

accordance with the directions of the Legislature. Because the “no very serious

consequences” rule compels the judiciary to interject itself inappropriately by second-

guessing these legislative decisions, we believe that this rule is incompatible with the

constitutional separation of powers.

E. ZONING ENABLING ACT

Moreover, the Legislature itself superseded the rule of Silva by enacting the

exclusionary zoning provision, MCL 125.297a.18 Determining whether a statute

preempts the common law is a matter of legislative intent. Millross v Plum Hollow Golf

Club, 429 Mich 178, 183; 413 NW2d 17 (1987). Where legislation is comprehensive,

providing “‘in detail a course of conduct to pursue and the parties and things affected,

and designates specific limitations and exceptions,’” then there is a legislative intention

that a statute preempt common law. Hoerstman Gen Contracting, Inc v Hahn, 474 Mich

66, 74; 711 NW2d 340 (2006), quoting Millross, 429 Mich at 183.

18
The trial in Silva was concluded in March 1979. Silva v Ada Twp, 99 Mich
App 601, 604; 298 NW2d 838 (1980). That same month, the Legislature amended the
TZA to include the exclusionary zoning provision, MCL 125.297a. See 1978 PA 637.
Consequently, in Silva, this Court did not consider the amended zoning enabling statute
because the case was tried under the earlier statute.

24
 MCL 125.297a is now recodified in nearly identical form as MCL 125.3207 under

the ZEA,19 which provides:

A zoning ordinance or zoning decision shall not have the effect of
totally prohibiting the establishment of a land use within a local unit of
government in the presence of a demonstrated need for that land use within
either that local unit of government or the surrounding area within the state,
unless a location within the local unit of government does not exist where
the use may be appropriately located or the use is unlawful.

MCL 125.3207 prohibits municipalities from enacting any zoning ordinance “totally

prohibiting” a given land use if a “demonstrated need” exists for that use, unless there is

no location where the use may be “appropriately located,” the use is “unlawful.”

Fundamental to determining whether the exclusionary zoning provision supersedes

the “no very serious consequences” rule is assessing the provision in the context of the

whole ZEA. The ZEA establishes the framework for a local government to create a

comprehensive zoning plan to promote the public health, safety, and welfare of the

community. MCL 125.3201(1) empowers local legislative bodies to zone for a broad

range of purposes and addresses the establishment of land-use districts. In particular,

MCL 125.3203(1) pertains to the development of a land-use plan and provides:

The zoning ordinance shall be based upon a plan designed to
promote the public health, safety, and general welfare, to encourage the use
of lands in accordance with their character and adaptability, to limit the
improper use of land, to conserve natural resources and energy, to meet the
needs of the state’s residents for food, fiber, and other natural resources,

19
Until 2006, there were three separate zoning enabling acts in Michigan: one for
city and village zoning, one for township zoning, and one for county zoning. In 2006, the
Legislature enacted the ZEA, 2006 PA 110, effective July 1, 2006, which consolidated
the zoning enabling authority for all local governments. MCL 125.3101 et seq.

25
 places of residence, recreation, industry, trade, service, and other uses of
land, to insure that uses of the land shall be situated in appropriate locations
and relationships, to avoid the overcrowding of population, to provide
adequate light and air, to lessen congestion on the public roads and streets,
to reduce hazards to life and property, to facilitate adequate provision for a
system of transportation, sewage disposal, safe and adequate water supply,
education, recreation, and other public requirements, and to conserve the
expenditure of funds for public improvements and services to conform with
the most advantageous uses of land, resources, and properties. The zoning
ordinance shall be made with reasonable consideration to the character of
each district, its peculiar suitability for particular uses, the conservation of
property values and natural resources, and the general and appropriate trend
and character of land, building, and population development.

These provisions reveal the comprehensive nature of the ZEA. It defines the fundamental

structure of a zoning ordinance by requiring a zoning plan to take into account the

interests of the entire community and to ensure that a broad range of land uses is

permitted within that community. These provisions empower localities to plan for, and

regulate, a broad array of land uses, taking into consideration the full range of planning

concerns that affect the public health, safety, and welfare of the community. Burt Twp v

Dep’t of Natural Resources, 459 Mich 659, 665-666; 593 NW2d 534 (1999).20 Perhaps

most significantly, these provisions enable localities to regulate land use to meet the

state’s needs for natural resources. In our judgment, it follows that the Legislature

20
In Bevan v Brandon Twp, 438 Mich 385, 398; 475 NW2d 37 (1991), this Court
recognized that there is a broad array of land uses that a local government may regulate:

While all of the legitimate state interests that may justify zoning
have not been identified, the United States Supreme Court has indicated
“that a broad range of governmental purposes and regulations satisfies these
requirements.” Nollan v California Coastal Comm [483 US 825, 834-835;
107 S Ct 3141; 97 L Ed 2d 677 (1987)].

26
intended that localities would be responsible for regulating the extraction of natural

resources within their boundaries.

Additionally, the ZEA specifically limits localities’ powers. For instance, the

exclusionary zoning provision, MCL 125.297a, now MCL 125.3207, applies to all land

uses within the community and precludes the zoning power from completely prohibiting

a lawful land use where there is a demonstrated need for that land use within a

jurisdiction. The ZEA also imposes other limitations. For example, there is a provision

that limits the regulation of adult foster care facilities and family or group child-care

homes. MCL 125.3206. Another provision sets forth a detailed approach to protect and

preserve open spaces. MCL 125.3506. There is also a provision that protects agricultural

land by allowing for the creation of a development rights ordinance. MCL 125.3507 et

seq. Notably, the ZEA specifically excludes areas that the Legislature intended to

regulate through other means. MCL 125.3205(1), for example, explicitly makes local

zoning subject to the Electric Transmission Line Certification Act, MCL 460.561 et seq.

That same provision specifically limits a county or township from regulating or

controlling “the drilling, completion, or operation of oil or gas wells or other wells drilled

for oil or gas exploration purposes,” and also limits them from exercising jurisdiction

over “the issuance of permits for the location, drilling, completion, operation, or

abandonment of such wells.” MCL 125.3205(2). Notably, there are no similar

provisions that limit or exempt the exercise of local zoning power over other natural

resources, such as gravel.

27
 Thus, the ZEA is a comprehensive law that empowers localities to zone, sets forth

in detail the development of zoning plans within a community, and specifically limits the

zoning power in particular circumstances. The Legislature clearly intended for localities

to regulate land uses, including the extraction of natural resources other than oil and gas.

Under the ZEA, a locality may not totally prohibit a lawful land use within its

jurisdiction, providing that there is a demonstrated need for that land use and there is an

appropriate location. By contrast, the “no very serious consequences” rule allows natural

resources extraction without consideration of these same factors. Under the ZEA, the

Legislature requires localities to establish comprehensive land-use plans. The “no very

serious consequences” rule, however, dilutes this achievement by overlaying on the law a

judicially created case-by-case rule that is incompatible with the idea of a sustained and

comprehensive long-term plan. And unlike the ZEA, the “no very serious consequences”

rule dictates that a single consideration, the extraction of natural resources, will always

carry the highest priority in the land-use process, no matter how this is viewed by the

community in which the use occurs, and no matter how thorough and how nuanced the

local land-use plan is in reconciling the full range of relevant factors and interests. The

Silva rule creates a “one-size fits all” policy in a realm in which it is especially important

that the unique circumstances of each locality be carefully assessed. In at least these

ways, the “no very serious consequences” rule is, in our judgment, incompatible with the

ZEA, and accordingly it is superseded by the ZEA.

28
 IV. CONCLUSION

The “no very serious consequences” rule is not a “species” of the reasonableness

test and thus is not a requirement of the constitution’s Due Process Clause; its adoption

violates the constitution’s separation of powers; and, by the enactment of the

exclusionary zoning provision of the ZEA, the Legislature has superseded the rule. The

constitution only requires that a zoning ordinance be reasonable, regardless of whether

the ordinance does or does not regulate the extraction of natural resources. Moreover, an

ordinance is presumed to be reasonable, and the burden is upon the party challenging the

ordinance to overcome this presumption by demonstrating that there is no reasonable

governmental interest being advanced.

In this case, both the trial court and the Court of Appeals analyzed the zoning

ordinance through the prism of the “no very serious consequences” rule, rather than the

“reasonableness” test. We therefore reverse the judgments of the Court of Appeals and

the trial court and remand to the trial court for further proceedings not inconsistent with

this opinion.

CORRIGAN, YOUNG, and HATHAWAY, JJ., concurred with MARKMAN, J.

29
 STATE OF MICHIGAN

SUPREME COURT

EDITH KYSER,

Plaintiff-Appellee,

v No. 136680

KASSON TOWNSHIP,

Defendant-Appellant.

KELLY, C.J. (dissenting).

The “very serious consequences” test derives from constitutional due process

considerations. I believe that it does not violate the constitutional separation of powers

principle and has not been superseded by the exclusionary zoning statute.1 Accordingly,

I would affirm the judgment of the Court of Appeals.

THE VERY SERIOUS CONSEQUENCES TEST DERIVES FROM

CONSTITUTIONAL DUE PROCESS CONCERNS

The very serious consequences test originated over 80 years ago in City of North

Muskegon v Miller.2 This Court observed that “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

1
MCL 125.297a.
2
249 Mich 52; 227 NW 743 (1929).
will follow therefrom.”3 Recognizing that restrictions on mineral extraction differ from

other land-use restrictions, this Court went on to state that “‘[l]egislatures may not, under

the guise of the police power, impose restrictions that are unnecessary and unreasonable

upon the use of private property or the pursuit of useful activities.’”4

Nearly 30 years later, this Court made clear that the very serious consequences test

is a constitutional test for reasonableness that must be applied when the extraction of

minerals is involved. In Certain-teed Prod Corp v Paris Twp, we stated that if an

ordinance is applied to mining and fails to meet the very serious consequences test, “the

result must be a judicial determination of constitutional unreasonableness.”5 Certain-

teed solidified the test as a test of constitutional dimensions in Michigan.

In Silva v Ada Twp, this Court reaffirmed that Miller and Certain-teed state the

appropriate constitutional standard for determining the reasonableness of zoning that

prevents the extraction of valuable minerals.6 Silva recognized that the very serious

consequences test is important because the prevention of mineral extraction has a

uniquely confiscatory character. Also, the public has a particular interest in having

valuable minerals. The Court observed that “[n]atural resources can only be extracted

3
Id. at 57.
4
Id. at 58 (citation omitted).
5
Certain-teed Prod Corp v Paris Twp, 351 Mich 434, 467; 88 NW2d 705 (1958)
(emphasis added).
6
Silva v Ada Twp, 416 Mich 153, 159; 330 NW2d 663 (1982).

2
from the place where they are located and found.”7 In addition to the necessity of

protecting individual property rights, this Court pointed to the public interest in natural

resource development as a justification for the higher standard: “Preventing the extraction

of natural resources harms the interests of the public as well as those of the property

owner by making natural resources more expensive.”8

This Court further explained the substantive due process concerns for zoning

regulations in Kropf v City of Sterling Hts:

A plaintiff-citizen may be denied substantive due process by the city
or municipality by the enactment of legislation, in this case a zoning
ordinance, which has, in the final analysis, no reasonable basis for its very
existence. The power of the city to enact ordinances is not absolute. It has
been given power by the State of Michigan to zone and regulate land use
within its boundaries so that the inherent police powers of the state may be
more effectively implemented on the local level. But the state cannot
confer upon the local unit of government that which it does not have. For
the state itself to legislate in a manner that affects the individual right of its
citizens, the state must show that it has a sufficient interest in protecting or
implementing the common good, via its police powers, that such private
interests must give way to this higher interest. Different degrees of state
interest are required by the courts, depending upon the type of private
interest which is being curtailed.[9]

It is significant that in 1963, before this Court’s decision in Silva, Michigan’s

citizens adopted a new constitution that affirmed the importance of the development of

7
Id. at 159.
8
Id. at 160.
9
Kropf v City of Sterling Hts, 391 Mich 139, 157-158; 215 NW2d 179 (1974)
(emphasis added). Although the test used in Kropf was based on reasonableness, it was
framed in terms of substantive due process. Kropf did not consider the very serious
consequences test. Silva, 416 Mich at 161.

3
natural resources: “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.”10

The majority opinion dismisses over 80 years of precedent holding that minerals

on property implicate unique due process concerns. It reverses course, observing that

there is simply “no basis in the zoning laws of our state, or in our constitution, for

judicially adopting such a distinction.”

To the contrary, the power of courts to interpret and enforce constitutional rights

and policies by placing limits on the government’s exercise of its police power is well

established.11 The majority opinion fails to adequately explain on what grounds it

overrules the line of cases since Miller that held that the very serious consequence test

derives from the Due Process Clause of the constitution.12 It fails to follow established

precedent, concluding instead that the test is not a constitutional requirement. In so

10
Const 1963, art 4, § 52. This section goes on to direct the Legislature to protect
the state’s natural resources. This command does not diminish the declaration that the
conservation and development of natural resources is of paramount importance to the
people of the state of Michigan. The special status that the constitution gives natural
resources only strengthens Silva’s conclusion that a higher standard applies to mineral
extraction because natural resources are different from other types of private interests.
11
Delta Charter Twp v Dinolfo, 419 Mich 253, 273; 351 NW2d 831 (1984)
(stating that “line drawing is a legislative function, but certainly there can be no argument
against the well-understood rule of law that the task of deciding whether the line itself is
reasonably related to the object of the line drawing is a judicial function”).
12
Const 1963, art 1, § 17 (“No person shall be . . . deprived of life, liberty or
property, without due process of law.”).

4
doing, it ignores the constitutional underpinnings of the test set forth in Silva and the fact

that the Due Process Clause is the bedrock upon which the test was built.

Notably, the majority opinion does not adequately consider whether the doctrine

of stare decisis warrants overruling the constitutional underpinnings of the Silva opinion.

Such consideration is essential. If the very serious consequences test is derived from the

Due Process Clause, as this Court has continuously held, then the Legislature does not

have the power to displace the test.13

This Court should not disregard stare decisis by gutting the long line of

constitutional jurisprudence behind the very serious consequences test and leave only the

bare shell of Silva intact. This would eviscerate the whole concept behind stare decisis

by selectively overruling parts of the case, leaving the rest and declaring no harm done.14

13
See People v Salsbury, 134 Mich 537, 546; 96 NW 936 (1903) (explaining that
the Legislature cannot instruct a court on how to interpret the constitution because the
judicial power, which includes the power to interpet the constitution, is held exclusively
by the courts); See also Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich
608, 614; 684 NW2d 800 (2004) (stating that the judicial branch is the final authority to
“accord meaning to the language of the constitution . . . .”); Dickerson v United States,
530 US 428, 437; 120 S Ct 2326; 147 L Ed 2d 405 (2000) (holding that “Congress may
not legislatively supersede our decisions interpreting and applying the
Constitution . . . .”).
14
See People v Gardner, 482 Mich 41, 85; 753 NW2d 78 (2008) (KELLY, J.,
dissenting) (explaining that the purpose behind stare decisis is to promote predictability
“by making it more difficult to apply the doctrine selectively.”); Paige v Sterling Hts, 476
Mich 495, 533; 720 NW2d 219 (2006) (opinion by CAVANAGH, J.) (stating that “‘absent
the rarest circumstances, [the Court] should remain faithful to established precedent’”)
(emphasis omitted); Gardner, 482 Mich at 85 (KELLY, J., dissenting) (holding that there
must be “some special justification” for overruling earlier precedent, and this requires
more than a conviction that the challenged precedent was wrongly decided).

5
This is also contrary to the requirements of Robinson v Detroit and the most fundamental

principles of stare decisis.15 Even if I would have reached a different conclusion had I

helped decide Silva and considered the test for the first time, I am now bound to follow

and apply it.16

The majority neglects to show how Silva defies practical workability. It fails to

consider whether overturning it will work an undue hardship on those who have relied on

it. Rather, without explanation, it states that overruling it will not cause “‘practical, real-

world dislocations.’” (Citation omitted.) I would not so casually discard over 80 years of

jurisprudence. If the majority is intent on sending Miller and its progeny to the grave, it

should give them a proper burial. Having been provided no substantial justification for

overruling this precedent, I would affirm this Court’s previous decisions holding that the

very serious consequences test derives from constitutional due process concerns.

15
Robinson v Detroit, 462 Mich 439, 464-465; 613 NW2d 307 (2000). Robinson
requires this Court to examine a number of things before overruling precedent. First, it
must determine that an earlier decision was wrongly decided. Next, it must consider (1)
whether the decisions defies practical workability, (2) whether reliance interests would
work an undue hardship if the decision were overturned, and (3) whether changes in the
law or facts no longer justify the decision.

See also Petersen v Magna Corp, 484 Mich 300; 773 NW2d 564 (2009). (opinion
by KELLY, J.) (extensively discussing the doctrine of stare decisis and advocating for a
test giving greater deference to past precedent). I remain committed to the stare decisis
factors I pronounced in Petersen, and I believe that those factors should be adopted by
this Court. Nevertheless, the stare decisis test enunciated in Robinson is currently
recognized by a majority of the Court.
16
See Hubbard v United States, 514 US 695, 716; 115 S Ct 1754; 131 L Ed 2d
779 (1995) (Scalia, J., concurring) (explaining that a past decision should not be
overruled without more grounds than that it was wrongly decided).

6
 THE VERY SERIOUS CONSEQUENCES TEST DOES NOT VIOLATE

THE SEPARATION OF POWERS PRINCIPLE

I disagree with the majority that the very serious consequences test violates the

principle of separation of powers. Essential to this analysis is whether the test is derived

from constitutional due process, which I discussed in the previous section. Because this

Court held previously that it does, and because I believe this holding should not be

disturbed, it follows that the principle of separation of powers is not violated.

Legislative power is not absolute and is limited by the constitution.17 The

Michigan Constitution cautions that “No person exercising powers of one branch shall

exercise powers properly belonging to another branch except as expressly provided in

this constitution.”18

I agree with the majority that zoning involves the exercise of a legislative function.

Zoning is an exercise of the state’s police power, and the government has the authority to

restrict private conduct to promote public health, safety, morals, or the general welfare.19

17
Marbury v Madison, 5 US 137, 176; 2 L Ed 60 (1803) (“[t]he powers of the
legislature are defined, and limited; and that those limits may not be mistaken, or
forgotten, the constitution is written.”).
18
Const 1963, art 3, § 2.
19
1 Rathkopf’s The Law of Zoning and Planning (4th ed), § 1.101[2], p 1-6;
Village of Euclid v Ambler Realty Co, 272 US 365, 387; 47 S Ct 114; 71 L Ed 303 (1926)
(holding that zoning laws “must find their justification in some aspect of the police
power, asserted for the public welfare”).

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However, the Legislature may not pass a zoning ordinance that does not comport with the

requirements of substantive due process.20

If the constitution and a legislative act conflict, the constitution must govern. It is

within the inherent power of the judiciary to determine whether there is such a conflict.

As explained in Marbury v Madison:

It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and
the constitution apply to a particular case, so that the court must either
decide that case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution
is superior to any ordinary act of the legislature; the constitution, and not
such ordinary act, must govern the case to which they both apply.[21]

These principles have been embraced in Michigan since the beginning of its

system of government. It is this Court’s duty to uphold the constitution above any

legislative acts.22 Although the Legislative branch can exercise the police power, it

cannot also define the limits of that power. As Justice COOLEY explained:

20
Silva, 416 Mich at 157-158.
21
Marbury, 5 US at 177-178.
22
People ex rel Sutherland v Governor, 29 Mich 320, 324-325 (1874) (explaining
that the courts must determine whether a legislative act conflicts with the constitution,
and if it does, the constitution prevails).

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 It has long been a maxim in this country that the Legislature cannot
dictate to the courts what their judgments shall be, or set aside or alter such
judgments after they have been rendered. If it could, constitutional liberty
would cease to exist . . . .[23]

Only the courts can define the contours of constitutional rights. Because this

Court has consistently found the very serious consequences test to be grounded in the

Due Process Clause of the constitution, the test does not violate the separation of powers

principle.

THE EXCLUSIONARY ZONING STATUTE HAS NOT SUPERSEDED

THE VERY SERIOUS CONSEQUENCES TEST

Even assuming that the very serious consequences test were not constitutional in

nature and that the Legislature had the authority to displace it, I do not believe that it has

done so. I disagree with the majority that the test was superseded by the exclusionary

zoning statute. That statute was part of the Township Zoning Act (TZA).24 It is now

recodified in nearly identical form as MCL 125.3207 under the Zoning Enabling Act

(ZEA).25

Three things compel me to conclude that the ZEA does not displace the very

serious consequences test. First, both the TZA and the ZEA are silent regarding the test,

23
Id. at 325-326.
24
MCL 125.271 et seq.
25
MCL 125.3207 prohibits municipalities from enacting any zoning ordinance
“totally prohibiting” a given land use if a “demonstrated need” exists for that use, unless
either: (1) there is no location where the use may be “appropriately located”; or (2) the
use is “unlawful.”

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and there is every reason to believe that the Legislature was aware of the test when it

passed the statutes. Whether a statute “preempts, changes, or amends the common law is

a question of legislative intent,” and the Legislature “is presumed to know of the

existence of the common law when it acts.”26 We have repeatedly stated that “‘statutes in

derogation of the common law must be strictly construed, and will not be extended by

implication to abrogate established rules of common law.’”27

By the time the Legislature passed the exclusionary zoning statute in 1979, the

very serious consequences test had already been set forth in Miller and affirmed in

Certain-teed. Yet, the TZA makes no mention of the test, nor does it state a different

standard for gravel extraction; rather, it is completely silent on the issue.

Likewise, when the ZEA was enacted in 2006, it made no mention of the very

serious consequences test. If the Legislature wanted either statute to replace the test, why

did it not indicate that, given that it was presumed to know the common law? The courts

must construe statutes that are in derogation of the common law narrowly. Hence, we

should conclude that the Legislature’s failure to specifically address the very serious

consequences test or enact another standard for gravel extraction indicates its intention

not to displace the rule.

26
Wold Architects & Engineers v Strat, 474 Mich 223, 233-234; 713 NW2d 750
(2006).
27
Energetics, Ltd v Whitmill, 442 Mich 38, 51 n 20; 497 NW2d 497 (1993),
quoting Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 508; 309 NW2d
163 (1981) (citations omitted).

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 Second, the Legislature’s acquiescence implies that it has accepted the test. In the

27 years between the passage of the TZA and ZEA, courts across Michigan have

repeatedly applied the test in relative harmony with the statutes.28 Despite this ongoing

application and use of the test, the Legislature has not acted to invalidate it. If the

Legislature had wanted to alter it, there was ample opportunity, especially in 2006 with

the enactment of the ZEA.

The test has worked in this state for a long time now. I find it difficult to conclude

that the Legislature intended to displace it merely by implication when it enacted the

TZA or the ZEA. Because the Legislature did not indicate in either statute that it was

displacing the test, it appears to have acquiesced in it.29

Third, the very serious consequences test and the exclusionary zoning statute

cover different matters. The very serious consequences test applies to cases in which the

alleged harm affects a specific parcel. In the present case, the test is applicable to

plaintiff’s parcel of land. In contrast, the harm alleged in a claim under the exclusionary

zoning statute affects an entire geographic area.

28
See, e.g., Compton Sand & Gravel Co v Dryden Twp, 125 Mich App 383; 336
NW2d 810 (1983); American Aggregates Corp v Highland Twp, 151 Mich App 37; 390
NW2d 192 (1986); Velting v Cascade Charter Twp, unpublished opinion per curiam of
the Court of Appeals, issued May 5, 2005 (Docket No. 250946); France Stone Co, Inc v
Monroe Charter Twp, 790 F Supp 707 (ED Mich, 1992).
29
See Karaczewski v Farbman Stein & Co, 478 Mich 28, 53; 732 NW2d 56
(2007) (KELLY, J., dissenting) (listing a long line of cases where this Court has used
legislative acquiescence and explaining that “legislative acquiescence is one of the many
judicial tools a court properly uses when attempting to effectuate the intent of the
Legislature”).

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 Notably, it does not appear from the act’s language that a plaintiff who prevails

under the exclusionary zoning statute is necessarily entitled to rezoning of a specific

parcel. This is because the harm is to a geographic area. Because the statute and the rule

address different types of challenges to zoning ordinances and can be applied in harmony,

there is no basis for concluding that one supersedes the other.

CONCLUSION

The very serious consequences test is an ingrained part of Michigan jurisprudence.

It was born over 80 years ago from due process principles. While there are certainly

valid policy considerations for and against retaining it, this Court should not discard it

without better cause than has been shown in this proceeding.

Moreover, I believe that the Legislature is not empowered to invalidate the test,

and nothing clearly indicates that the Legislature has tried to do so. Accordingly, I would

affirm the judgment of the Court of Appeals.

CAVANAGH, J., concurred with KELLY, C.J.

WEAVER, J., did not participate in this case because she has a past and current

relationship with Kasson Township Supervisor Fred Lanham and his family.

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