For many years, the Michigan Supreme Court protected the rights of property owners to extract natural resources from their property. In Michigan, this often involves sand or gravel pits, timber, and oil and natural gas wells. Based on prior court decisions, local governments could not prohibit mining these resources as long as “no very serious consequences” would result. This was a very difficult standard for a city or township to meet. Based on this case law, property owners were successful in a number of cases in challenging local zoning ordinances that attempted to prohibit or limit mineral extraction.
In Kyser v Kasson Township, the Michigan Supreme Court decided that the “no very serious consequences rule” was not required by the Michigan Constitution. See a complete copy of the Court’s July 15, 2010 decision by clicking here.
From this point forward, local government regulation of mineral resources will be governed by the Zoning Enabling Act. The practical effect of the Supreme Court’s decision is to give more authority to local governments to regulate the manner in which mineral extraction is conducted. While a zoning ordinance must be reasonable, “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.”
It will still be difficult for a city or township to completely prohibit mineral extraction Under the Zoning Enabling Act, a zoning ordinance may not have the effect of totally prohibiting a land use “in the presence of a demonstrated need for that land use within either that local unit of government 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.”
This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.
