Order Michigan Supreme Court
Lansing, Michigan
March 13, 2009 Marilyn Kelly,
Chief Justice
136680 & (89)(90)(93) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
EDITH KYSER, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 136680
COA: 272516
Leelanau CC: 04-006531-CZ
KASSON TOWNSHIP,
Defendant-Appellant.
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On order of the Court, the motions for leave to file briefs amicus curiae are
GRANTED. The application for leave to appeal the May 6, 2008 judgment of the Court
of Appeals is considered, and it is DENIED, there being no majority in favor of granting
leave to appeal.
WEAVER, J., is not participating in this case because she has a past and current
business relationship with Kasson Township Supervisor Fred Lanham and his family.
CORRIGAN, J. (dissenting).
Today’s decision denies this Court the opportunity to inquire about the
justification for past decisions of this Court that have read into the law provisions that
were never placed there by the Legislature itself. As a consequence, the general rule of
judicial deference to the decisions of local zoning authorities has been altered with regard
to the extraction of natural resources, and the judiciary has been afforded a considerably
greater role in questioning the judgments of such authorities and effectively acting as a
super zoning commission.
I respectfully dissent from the order denying defendant’s application for leave to
appeal. I would grant leave to appeal because I believe that this Court should examine
the unconstitutional implications of the “very serious consequences” rule first adopted in
Silva v Ada Twp, 416 Mich 153 (1982).
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Defendant Kasson Township denied plaintiff Edith Kyser’s application to rezone
her property for gravel mining. Defendant asserted that granting plaintiff’s application
would undermine its comprehensive zoning scheme and engender applications from
numerous other property owners for a similar rezoning of their properties. Plaintiff filed
suit, contending that defendant’s refusal violated her substantive due process rights
because gravel mining on her property would cause no “very serious consequences”
under Silva. After a bench trial, the Leelanau Circuit Court held that because plaintiff’s
request for rezoning would not result in very serious consequences, plaintiff could mine
gravel on her property. The Court of Appeals affirmed in a divided decision. Kyser v
Kasson Twp, 278 Mich App 743 (2008). Defendant now seeks leave to appeal to this
Court.
In Silva, the Court held that “zoning regulations which prevent the extraction of
natural resources are invalid unless ‘very serious consequences’ will result from the
proposed extraction.” Silva, supra at 156. The Silva Court characterized its holding as
“reaffirming” the rule of Certain-teed Products Corp v Paris Twp, 351 Mich 434 (1958).
Id. As Justice Ryan noted in his partial concurrence and dissent in Silva, however, “the
supposed ‘rule’ favoring the removal of natural resources unless ‘very serious
consequences’ would result was merely obiter dictum” in Certain-teed Products and an
earlier case on which the Silva majority also relied, City of North Muskegon v Miller, 249
Mich 52 (1929). Silva, supra at 165. Therefore, although ostensibly reaffirming the rule
of Certain-teed Products, the Silva Court adopted the “very serious consequences” rule
for the first time. In so doing, Silva created a new rule without fully grappling with the
unconstitutional implications of that rule.
In my view, this Court should reexamine the “very serious consequences” rule for
myriad reasons. First, the rule upsets the traditional separation of powers because it
compels courts to engage in an expansive review that essentially crafts state and local
zoning and environmental policy. This Court “does not sit as a superzoning
commission”; instead, “[t]he people of the community, through their appropriate
legislative body, and not the courts, govern its growth and its life.” Robinson v
Bloomfield Hills, 350 Mich 425, 430-431 (1957). In contrast, the “very serious
consequences” rule violates this Court’s well-established principle of not substituting
“our judgment for that of the legislative body charged with the duty and responsibility in
the premises.” Id. at 431. If a reviewing court wishes to follow the Silva rule, the court
must, in effect, substitute its opinion regarding the appropriateness of the designation at
issue for the opinion of the local zoning authority, thereby exercising a legislative
function.
Moreover, the rule stands in stark contrast to the traditional rules under which
plaintiff may challenge the validity of a zoning ordinance. According to the traditional
rules, plaintiff has the burden of proving, “first, that there is no reasonable governmental
interest being advanced by the present zoning classification itself . . . or secondly, that an
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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.” Kropf v
Sterling Hts, 391 Mich 139, 158 (1974). Under the “very serious consequences” rule,
however, the burden shifts from the plaintiff to the municipality. Plaintiff no longer must
“prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon
the owner’s use of his property.” Id. at 162 (quotation marks and citation omitted).
Instead, the municipality must convince the trial court that because the anticipated
consequences of allowing mining cannot be otherwise mitigated, it has a compelling
interest in preventing “very serious consequences” by denying a rezoning application.
The amici curiae briefs of the State Bar’s Public Corporation Law Section (PCLS),
the American Planning Association (APA), and the Michigan Association of Planning
(MAP) underscore the jurisprudential significance of the “very serious consequences”
rule. The PCLS argues that the subsequent enactment of MCL 125.3207, which prohibits
townships from excluding lawful land uses, has superseded the Silva Court’s “very
serious consequences” rule. The APA and the MAP also challenge two faulty
justifications often cited to support the Silva rule. They argue that the mere presence of
minerals on property is not so unusual that courts should elevate it above general land use
regulations. Moreover, the APA and the MAP note that the appropriate forum in which
to establish statewide natural resource management policies is the Legislature, not the
courts. Because our Legislature has yet to adopt any policy establishing mining or
extraction as a preferred land use, the Silva Court erred when it legislated that policy by
judicial decree.
Accordingly, I would grant leave to appeal to examine the unconstitutional
implications of the “very serious consequences” rule.
YOUNG, J., joins the statement of CORRIGAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 13, 2009 _________________________________________
p0310 Clerk