Legislative Analysis - Natural Resource Extraction by Mining - "very serious consequences"

Legislative Analysis

NATURAL RESOURCE EXTRACTION BY MINING

UNDER LOCAL ZONING ORDINANCES

House Bill4746 as enacted

Public Act 113 of 2011

Sponsor: Rep. Matt Huuki

Mitchell Bean, Director

Phone: (517) 373-8080

http://www. house.mi.gov/hfa

House Committee: Natural Resources, Tourism, and Outdoor Recreation

Senate Committee: Natural Resources, Environment, and Great Lakes

Complete to 7-26-11

A SUMMARY OF HOUSE BILL 4746 AS ENACTED

This bill amended Section 205 of the Michigan Zoning Enabling Act to specify that a

zoning ordinance cannot prevent the extraction of valuable natural resources by mining

from any property unless "very serious consequences" would result from the extraction.

The bill states that natural resources will be considered valuable if a person, by extracting

the natural resources, can receive revenue and reasonably expect to operate at a profit.

Under the bill a person bringing a zoning challenge has the initial burden of showing

there are valuable natural resources located on the relevant property, that there is a need

for the natural resources by the person or in the market served by the person, and that

no

very serious consequences

would result from the mining.

In determining whether very serious consequences would result from extraction by

mining, the standards set forth in Silva v. Ada Township, 416 MICH 153 (1982), must be

applied and all of the following factors may be considered, if applicable:

o The relationship of extraction and associated activities with existing land uses.

o The impact on existing land uses in the vicinity of the property.

o

The impact on property values in the vicinity of the property and along the

proposed hauling route serving the property, based on credible evidence.

o

The impact on pedestrian and traffic safety in the vicinity of the property and

along the proposed hauling route serving the property.

o The impact on other identifiable health, safety, and welfare interests in the local

unit of government.

o The overall public interest in the extraction of the specific natural resource.

According to the bill, these provisions do not limit a local unit of government's

reasonable regulation of hours of operation

, blasting hours, noise levels, dust control

measures, and traffic, not preempted by Part 632 of the Natural Resources and

Environmental Protection Act. However, regulations must be reasonable in

accommodating customary mining operations. Additionally, this bill will not limit state

regulatory authority under other statutes or rules.

MCL 125.3205

Analysis available at http://www.legislature.mi.gov Page 1 of2

BACKGROUND INFORMATION:

In 2010, the Michigan Supreme Court issued an opinion in Kyser v Kasson Township

that is understood to have overturned its 1982 decision in Silva v Ada Township.

In the

Sylva case, a township had denied a rezoning that would have allowed the mining of

gravel on land zoned for agricultural use.

In Silva, the Court had recognized a rule that

zoning ordinances that prevent mining are unreasonable unless "very serious

consequences" would result. According to legal commentators, in the 2010 Kyser

decision, among other things, the Court declared that rule unconstitutional because it

violated the separation of powers. Additionally, the Court held the "very serious

consequence" rule had been superseded by the exclusionary zoning provision (MCL

125.297a) of the Township Zoning Act, now incorporated into the 2006 Zoning Enabling

Act. In its 2010 decision, the Court eliminated the "very serious consequences" rule and

replaced it with the traditional reasonableness test that applies to all other types of land

use restrictions.

House Bill 4746 would, proponents said, return to the "very serious consequences"

standard that existed prior to the 2010 Supreme Court decision. This presumably would

restore a higher standard for local units of government to meet when regulating mining.

FISCAL IMPACT:

House Bill 4746 would have no fiscal impact on the State of Michigan. The bill's

provisions would not have any significant fiscal impact to local units of government

unless the local unit incurred costs from additional zoning challenges.

Legislative Analyst: Jeff Stoutenburg

Fiscal Analyst: Viola Bay Wild

• This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does

not constitute an official statement oflegislative intent.

Analysis available at http://www.legislature.mi.gov HB 4746 as enacted Page 2 of2