MSU Article reviewing "very serious consequences"

Local governments can regulate but not prohibit natural resource extraction

I MSU Extens... Page 1 of 3

Local governments can regulate but not

prohibit natural resource extraction

The deciding factor is often what amounts to the likelihood of "very

serious consequences."

Posted

on February 4, 2013 by Brad Neumann, Michigan State University Extension

In recent years, court cases and legislation has gone back and fmth on issues of local control vs.

private property rights with respect to mining of natural resources. Today, the pendulum has

swung in the direction of property rights, with the burden on the local government to show

'very serious consequences' would result.

On July

20, 2011, Gov. Rick Snyder signed House Bill 4746 into law, thereby amending the

~ichigan

Zoning Enabling Act Cpdfl (PA 110 of 2006; being MCL 125.3101 et seq.) to limit

zoning authority over extraction (mining) of natural resources (aggregates) from prope1ty

unless "very serious consequences" would occur. The bill essentially reversed the Michigan

Supreme Court ruling in

"!Kyser v. Kasson Township Cpdfl (488 Mich. 86o; 2010 [278 Mich.

App.

743; 2008]; also see page 2 of~elected Planning and Zoning Decisions: 2011 Cpdf)) by

adding subsections

(3) through (7) to section 205 of the Michigan Zoning Enabling Act, which

include the "very serious consequences" standard or rule.

Under the new laws, local units of government can regulate but seldom prohibit the extraction

of natural resources. Local governments can reasonably regulate (MCL

125.3205(6)) hours of

operation, blasting hours, noise levels, dust-control measures and traffic. However, such

regulations must be "reasonable" in accommodating customary mining operations. Also, local

governments cannot regulate anything pre-empted by Part

632- ~onferrous Metallic

Mining Regulations

Cpdfl of the Natural Resources and Environmental Protection Act (MCL

324.63201

et seq.).

Further, if the costs imposed on the public by proposed extraction activities are sufficient to

outweigh the benefits of extraction the local government can deny the application for resource

extraction on the grounds that "very serious consequences" would result. The standards that

may be applied (as applicable) when determining whether "very serious consequences" would

result from a particular extraction activity include (MCL

125.3205(5)):

• The relationship of extraction and associated activities with existing land uses

• The impact on existing land uses in the vicinity of the property

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

hauling route serving the property, based on credible evidence

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Local governments can regulate but not prohibit natural resource extraction

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• The impact on pedestrian and traffic saf

ety in the vicinity of the property and along the

proposed hauling route serving the property

• The impact on other identifiable health, safety and welfare interests in the local unit of

government

• The overall public interest in the extraction of the specific natural resources on the

property

The above

"very serious consequences test" (originating from ~ilva v. Ada Township (pdf)

[416

Mich. 153; 1982]) must be applied with a cost-benefit analysis using a sliding scale. The

"benefit" is based on the demand for the specific resource and the "cost" is based on public

(government) expenses resulting from the extraction

c.-,_J'!merican Aggregates Corp v.

Highland Township

(pdf) [151 Mich. App. 37; 1986]).

In other words, if public interest in the landowner

's resource is relatively low, the landowner

must make a very strong showing that no "very serious consequences" will result from the

extraction of the resource. One cautionary note - man

y details related to the application of the

no "very serious consequences

" rule are unknown at this time and will likely be forthcoming

through litigation and case law.

It

is important for local governments to recognize that sand and gravel is used extensively in

construction and Michigan courts have often recognized the value of this natural resource.

What's more, the courts have written that the proper focus in determining whether a natural

resource is valuable is on whether the landm

vner (or mineral owner), by extracting the

resource, can raise revenues and reasonabl

y hope to operate at a personal profit.

Local government regulation of resource extraction can be a tricky proposition. Local

governments are encouraged to work closely with their municipal attorneys when considering

related amendments to their zoning ordinance or processing a mineral extraction application

from a landowner.

Natural resource extraction is not the onl

y aspect oflocalland use regulation for which the

state has set boundaries or outright pre-empted local control. For a summary of state and

federal preemptions oflocalland use regulations see the

Michigan State University Extension

W

Land Use Series

'1R.estrictions on Zoning Authority (pdf).

This article was published by

Michigan State University Extension (http://www.msue.msu.edu). For

more information, visit

http://www.msue.msu.edu Chttp://www.msue.msu.edu). To contact an expert in

y

our area, visit http://experi.msue.msu.edu (http://expert.msue.msu.edu), or call 888-MSUE4Ml (888-

678-3464).

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