Silva vs Ada Township (Lawsuit) Very Serious Consequences will result from proposed extraction

I of2 DOCUMENTS

A. CLARE

SILVA and KAREN J. SILVA, Plaintiffs-Appellants, v. TOWNSHIP OF

ADA,

Defendant-Appellee, and CARL HUISMAN and CORNELIA HUISMAN,

Husband and Wife; ALBERT JOHN DYKSTRA; TIMOTHY HOLT and KAREN

HOLT, Husband and Wife; LARRY OSTERINK and DEBBIE OSTERINK,

Husband and Wife; and JAMES VOGT and BEVERLY VOGT, Husband and Wife,

Intervening Defendants-Appellees; OTTAWA SILICA COMPANY, Michigan

Division, a foreign corporation, Plaintiff-Appellant, v. THE TOWNSHIP OF

BROWNSTOWN, an unincorporated municipality, and TOWNSHIP BOARD OF

THE TOWNSHIP OF BROWNSTOWN, Defendants-Appellees

Docket Nos. 65815, 66201

Supreme Court of Michigan

416 Mich. 153; 330 N.W.2d 663; 1982 Mich. LEXIS 618

January 6, 1982, Argued

December 23, 1982, Decided

PRIOR HISTORY: [***1] 99 Mich App 601; 298 NW2d 838 (1980).

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

Page

1

PROCEDURAL POSTURE:

Plaintiff landowners appealed judgments from the Court of Appeals (Michigan), which

found

for defendants, townships, and individuals, and upheld zoning ordinances that prohibited mining of natural

resources

. The landowners contended that it was error to sustain the ordinances in the absence of findings that "very

serious consequences" would result from the mining.

OVERVIEW

: In these consolidated cases, landowners challenged the reasonableness of zoning ordinances which

denied them the ability to take

gravel and silica sand from their respective properties. In reversing the judgments and

remanding the causes, the court held that the lower court erred in failing

to determine that "very serious consequences"

would

result from the exploitation of the resources. "Very serious consequences" was the court's articulation of the

heightened standard of reasonableness that applied to zoning

laws which would deny a landowner the right to extract

minerals or other

natural resources from its property. The court held that the rule retained its vitality despite the lower

court's apparent belief that it had been overruled

sub silentio.

OUTCOME

: The court reversed the judgments that upheld the zoning ordinances against the landowners' challenges

and remanded the causes for further proceedings

.

CORE TERMS: natural resources, extraction, zoning, zoning ordinance, ordinance, silica, township, challenging,

reasonableness, sand, land use, burden of proving, mining operations, reaffirmed, presumed, property owner,

residential, gravel, zoned, case law, public interest, equity cases, municipality, attacking, drilling, mining, dictum, site,

oil, single-family

416 Mich. 153, *; 330 N.W.2d 663, **;

1982 Mich. LEXIS 618, ***1

LexisNexis(R) Headnotes

Real Property Law> Zoning

& Land Use> Ordinances

[HNl] Zoning regulations which prevent the extraction of natural resources are invalid unless "very serious

consequences" will result from the proposed extraction.

Environmental Law >Zoning

& Land Use> Constitutional Limits

Real Property Law >Zoning

& Land Use> Constitutional Limits

Real Property Law >Zoning

& Land Use > Ordinances

Page2

[HN2] A zoning ordinance must be reasonable to comport with the requirements of substantive due process. Zoning

ordinances are presumed to be reasonable, and a person challenging the ordinance has the burden of proving otherwise.

Environmental Law >Zoning

& Land Use> Constitutional Limits

Real Property Law >Zoning

& Land Use> Constitutional Limits

Real Property Law >Zoning

& Land Use> Ordinances

[HN3] A plaintiff-citizen may be denied substantive due process by the city or municipality by the enactment of

legislation, including 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.

Real Property Law >Zoning

& Land Use> Constitutional Limits

[HN4] A more rigorous standard of reasonableness applies to zoning ordinances that prevent the extraction of natural

resources.

Environmental Law >Zoning

& Land Use> Constitutional Limits

Real Property Law> Zoning

& Land Use> Constitutional Limits

Real Property Law >Zoning

& Land Use> Ordinances

[HN5] Zoning ordinances must be justified in some aspect of the police power, asserted for the public welfare. Zoning

ordinances must bear a direct and substantial relation to the public health, safety, morals, and general welfare, of the

community as a whole.

Environmental Law >Zoning

& Land Use> Constitutional Limits

Environmental Law >Zoning

& Land Use >Statutory & Equitable Limits

Real Property Law >Zoning

& Land Use> Constitutional Limits

[HN6] If the gain to the public by the ordinance is small when compared with the hardship imposed upon the individual

property owner by the restrictions of zoning ordinance, no valid basis for the exercise of police power exists.

Real Property Law >Zoning

& Land Use > Constitutional Limits

[HN7] In addition to the factor of the loss to the owners occasioned by a zoning ordinance, there must also be taken into

consideration the loss to the public generally.

Real Property Law> Zoning

& Land Use> Constitutional Limits

[HN8] In the administration of our zoning laws, while the government seeks to protect our homes, it must likewise take

into account the public interest in the encouragement of full employment and vigorous industry.

Real Property Law> Zoning

& Land Use> Constitutional Limits

[HN9] The courts particularly stress 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.

Real Property Law >Zoning

& Land Use> Constitutional Limits

[HN1 0] To sustain an ordinance that prohibits mining operations there must be some dire need which, if denied the

ordained protection, will result in "very serious consequences."

416 Mich. 153, *; 330 N.W.2d 663, **;

1982 Mich. LEXIS 618, ***1

Real Property Law >Zoning

& Land Use > Constitutional Limits

Page 3

[HN11] Not all zoning which prevents the extraction of natural resources is unreasonable. Zoning regulations are

presumed to be reasonable and a person challenging zoning has the burden of proving otherwise. The 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.

HEAD

NOTES

Opinion of the Court

1. Zoning -- Ordinances -- Presumption of Reasonableness.

Zoning ordinances seek to achieve a land use which serves the interests of the community as a whole and are presumed

to be reasonable; a person challenging such ordinances has the burden of proving otherwise.

2. Zoning-- Ordinances-- Extraction of Natural Resources.

A zoning ordinance which would prevent the extraction of natural resources will not be sustained unless very serious

consequences would result from the extraction; the party challenging such an ordinance has the burden of showing that

there are valuable natural resources at the affected site and that their extraction would not result in very serious

consequences.

Opinion Concurring in Part and Dissenting in Part by Ryan, J.

3. Zoning-- Ordinances-- Extraction ofNatural Resources-- Preferred Use.

Application of a very serious consequences test to the validity of zoning ordinances which would prevent the extraction

of natural resources creates a preferred use doctrine in favor of removing natural resources which are neither infinite

nor renewable and reverses

[***2] the presumption of validity accorded zoning ordinances.

SYLLABUS

A. Clare Silva and Karen J. Silva sought rezoning of their property in Ada Township, Kent County, to permit gravel

mining. The township denied their applications, and the Kent Circuit Court, George V. Boucher, J., entered judgment

for the township in an action brought to compel rezoning. The Court of Appeals, Allen, P.J., and D. F. Walsh and

McDonald, JJ., affirmed (Docket No. 45531). The plaintiffs appeal.

Brownstown Township, Wayne County, denied a request by the Ottawa Silica Company to rezone their property in the

township to permit mining of silica sand. The Wayne Circuit Court, Sharon Tevis Finch, J., held that the zoning

ordinance as it applied to part of Ottawa's property was unconstitutional. The Court of Appeals, N.J. Kaufman, P.J.,

and Cynar and Townsend, JJ., reversed in an unpublished opinion per curiam (Docket No. 45906). The plaintiff

appeals.

In an opinion by Justice Levin, joined by Chief Justice Fitzgerald and Justices Kavanagh and Williams, the Supreme

Court

held:

Zoning regulations which prevent the extraction of natural resources are invalid unless very serious consequences will

result [***3] from the extraction operations.

1. A zoning ordinance must be reasonable to comport with the requirements of substantive due process. Zoning

ordinances seek to achieve a land use which serves the interests of the community as a whole and are presumed to be

reasonable. A person challenging an ordinance has the burden of proving otherwise.

416 Mich. 153, *; 330 N.W.2d 663, **;

1982 Mich. LEXIS 618, ***3

Page4

2. Because of the important public interest in extracting and using natural resources, a more rigorous standard of

reasonableness is applied when zoning would prevent the extraction of natural resources. Such zoning will not be

sustained unless very serious consequences would result from the extraction; the party challenging the zoning has the

burden of showing that there are valuable natural resources and that no very serious consequences would result from

their extraction.

3. In these cases, the Court of Appeals determined the validity of the zoning ordinances without considering whether

very serious consequences would result from the extraction of the resources. The cases must be remanded to the Court

of Appeals for further consideration.

Justice Ryan, joined by Justice Coleman, concurred in part and dissented in part. Applying a "very

1***4) serious

consequences" test creates a preferred use doctrine in favor of removing natural resources, reversing the presumption of

validity accorded zoning ordinances. The test was dictum in cases involving the public policy of 1929 and 1958 and

should not be elevated to the status of a holding in 1982, when we have long since abandoned the illusion that our

scarce natural resources are infinite and renewable and therefore should be quickly exploited to the fullest extent.

Ottawa

should be remanded because of the failure of the Court of Appeals to give adequate deference to the findings of

fact by the trial court, but

Silva should be affirmed.

COUNSEL:

Dilley & Dilley (by Robert W. Dilley), Grand Rapids, Michigan, for the plaintiffs in Silva.

Varnum, Riddering, Wierenga

& Christenson

(by Thomas J. Heiden and Bruce G. Hudson), Grand Rapids, Michigan,

for Ada Township.

Freihofer, Oosterhouse, DeBoer

& Barnhart

(by Walter B. Freihofer), Grand Rapids, Michigan, for intervening

defendants in

Silva.

D'Avanzo, Danko

& Aycock

(by Stephen G. Danko), Southgate, Michigan, for Ottawa Silica Company.

William J. DeBiasi, P.C.,

Taylor, Michigan, 1***5) for Brownstown Township.

Amici Curiae:

Dykema, Gossett, Spencer. Goodnow

& Trigg

(by James W. Collier, Daniel G. Wyllie, and Michael G. O'Neill), Detroit,

Michigan, for Lyon Development Company.

Honigman, Miller, Schwartz

& Cohn

(by Joseph M Polito), Detroit, Michigan, for Lyon Sand & Gravel Company.

Bauckham, Reed, Lang, Schaefer

& Travis, P.C.

(by Robert F. Travis and John H. Bauckham), Kalamazoo, Michigan,

for Michigan Townships Association.

Kitchen, Schmerberg

& Ward

(by Leonard K. Kitchen), Dexter, Michigan, for Whittaker & Gooding Company.

JUDGES:

Levin, J. Fitzgerald, C.J., and Kavanagh and Williams, JJ., concurred with Levin, J. Ryan, J. (concurring in

part and dissenting in part).

Coleman, J., concurred with Ryan, J. Riley, J., took no part in the decision of this case.

OPINION BY:

LEVIN

OPINION

1*156) [**664)

These cases, consolidated on appeal, concern the standard for determining the validity of zoning

which prevents the extraction of natural resources. In both cases, the Court of Appeals upheld zoning regulations which

416 Mich. 153, *156; 330 N.W.2d 663, **664;

1982 Mich. LEXIS 618, ***5

Page 5

would prevent the extraction of natural resources without considering whether "very serious consequences" [***6]

would result from the extraction. We reaffirm the rule of

Certain-teed Products Corp v Paris Twp, 351 Mich 434; 88

NW2d 705 (1958), that [HNl] zoning regulations which prevent the extraction of natural resources are invalid unless

"very serious consequences" will result from the proposed extraction.

A. Clare Silva and Karen J. Silva purchased an 80-acre parcel in an area zoned for specialized farming and

single-family residences. The Silvas intended to use this property to strip mine for gravel. The Silvas' property is

surrounded by agricultural, residential, and undeveloped property.

The Silvas filed two applications for rezoning with the township zoning authorities, but their applications were denied.

In their second application, the Silvas proposed several ways in which they would attempt to minimize any adverse

effects of their operations, including limiting mining to ten years, regrading, and recontouring the property at the

conclusion of the mining operations to make it suitable for farming or home development, fencing, using stockpiles as

visual and sound buffers, and restricting the extraction to a 46-acre area.

[*157] [**665] After their unsuccessful efforts [***7] to obtain rezoning, the Silvas filed an action in the Kent

Circuit Court. Judgment was entered in favor of the township, and the Court of Appeals affirmed.

I

I

Silva v Ada Twp, 99 Mich App 60I; 298 NW2d 838 (1980).

The Ottawa Silica Company, intending to mine silica sand, purchased 31 acres in an area zoned for residential use,

adjacent to land which it already mines. The south end of Brownstown Township, where this property is located,

remains basically rural and undeveloped except for one large subdivision. Two or three homes are directly across from

the property.

The township denied a request for reclassification. Ottawa Silica then commenced this action in the circuit court. The

court found that:

"The resource to be mined is a unique type of silica sand, which, because of its qualities ofbeing both round and white,

is particularly valuable for foundry use and the manufacturing of fine crystal. There is no other deposit of such sand in

this country at this relatively shallow level underground, [***8] which means that it can be mined more economically

than if it were deeper under the ground, and hence can be sold at a most competitive price."

Approximately 49% of the parcel is within a flood plain and cannot legally be built upon. The court ruled the zoning

unconstitutional insofar as it applied to the portion of the land west of a stream bisecting it. The Court of Appeals

reversed.

II

This Court has recently reaffirmed that [HN2] a zoning ordinance must be reasonable to comport with the [*158[

requirements of substantive due process.

2 Zoning ordinances are presumed to be reasonable, and a person challenging

the ordinance has the burden of proving otherwise.

3 These appeals concern the standard to be employed in determining

reasonableness where the zoning would prevent the extraction of natural resources.

2 [HN3] "A plaintiff-citizen may be denied substantive due process by the city or municipality by the enactment oflegislation, 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

416 Mich. 153, * 158; 330 N.W.2d 663, **665;

1982 Mich. LEXIS 618, ***8

absolute."

Kropfv Sterling Heights, 391 Mich 139, 157; 215 NW2d 179 (1974).

Page 6

See also

Robinson Twp v Knoll, 410 Mich 293, 312; 302 NW2d 146 (1981 ).

[***9]

3

Kropf, supra, !58; Ed Zaagman, Inc v City of Kentwood, 406 Mich 137, 157; 277 NW2d 475 (1979).

A

Zoning regulations seek to achieve a land use which serves the interests of the community as a whole.

4 Because of the

important public interest in extracting and using natural resources,

5 this Court [*159] has applied [HN4] a more

rigorous standard of reasonableness when the zoning would prevent the extraction of natural resources.

4 In

Euclid v Ambler Realty Co, 272 U.S. 365, 387; 47 S Ct 114; 71 LEd 303 ( 1926), the United States Supreme Court said that [HN5]

zoning ordinances must be justified "in some aspect of the police power, asserted for the public welfare". In

Alderton v Saginaw, 367 Mich

28, 33; 116 NW2d 53 (1962), this Court said that zoning ordinances must bear a "direct and substantial relation to the*

* * public health,

safety, morals, and general welfare, of the community as a whole."

See also

Pioneer Trust & Savings Bank v Village of Oak Park, 408 Ill458, 465; 97 NE2d 302, 305 (1951 ), quoted with approval in Midland

Electric Coal Corp v Knox County,

I Ill 2d 200, 209; 115 NE2d 275, 281 (1953):

[HN6] "If the gain to the public by the ordinance is small when compared with the hardship imposed upon the individual property owner by

the restrictions of zoning ordinance, no valid basis for the exercise of police power exists."

and

Herman v Village of Hillside, 15 Ill2d 396, 406; 155 NE2d 47,52 (1958):

[HN7] "In addition to the factor of the loss to the owners, there must also be taken into consideration the loss to the public generally."

[***10]

5 [HN8] "In the administration of our zoning laws, while we seek to protect our homes, we must likewise take into account the public

interest in the encouragement of full employment and vigorous industry."

Certain-teed Products Corp v Paris Twp, 351 Mich 434, 465; 88

NW2d 705 (1958) (separate opinion ofEdwards,

J.)

(**666]

This Court first noted that zoning which prevents the extraction of natural resources involves different

considerations than zoning regulations generally in

North Muskegon v Miller, 249 Mich 52, 57; 227 NW 743 (1929),

which concerned a zoning ordinance preventing the drilling of oil wells:

[HN9] "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."

6 (Emphasis supplied.)

6 See also

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

[***11]

In Certain-teed Products, supra, p 467, this Court reaffirmed that zoning would not be sustained unless very

serious consequences would result from the mining operations:

[HNl 0] "To sustain the ordinance in such case there must be some dire need which, if denied the ordained protection,

will result in 'very serious consequences.'"

We again reaffirm the "very serious consequences" rule of

Miller and Certain-teed.

416 Mich. 153, *159; 330 N.W.2d 663, **666;

1982 Mich. LEXIS 618,

***11

Page 7

Natural resources can only be extracted from the place where they are located and found. Preventing the mining of

natural resources located at a particular site prevents all use of those natural

1*160) resources. As the United States

Court of Appeals for the Sixth Circuit said in

Village of Terrace Park v Errett, 12 F2d 240, 243 (CA 6, 1926):

"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."

Preventing the extraction of natural resources harms the interests of the public as well as those of the property owner

1***12)

by making natural resources more expensive. Because the cost of transporting some natural resources (e.g.,

gravel) may be a significant factor, locally obtained resources may be less expensive than those which must be

transported long distances.

It appears that the silica sand involved in one of the cases here on appeal is unique in quality

and location.

In most cases, where natural resources are found the land will be suited for some other use and can reasonably be

devoted to that use. Unless a higher standard is required, natural resources could be extracted only with the consent of

local authorities or in the rare case where the land cannot be reasonably used in some other manner. The public interest

of the citizens of this state who do not reside in the community where natural resources are located in the development

and use of natural resources requires closer scrutiny of local zoning regulations which prevent development. In this

connection, we note that extraction of natural resources is frequently a temporary use of the land and that the land can

often be restored for other uses and appropriate assurances with adequate security can properly be demanded as a

1*161) 1***13)

precondition to the commencement of extraction operations.

B

In both

Ottawa Silica and Silva, the Court of Appeals held that Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179

(1974);

Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976); Ed Zaagman, Inc v City of Kentwood, 406 Mich 137;

277 NW2d 475 (1979), and

Turkish v City of Warren, 406 Mich 137; 277 NW2d 475 (1979), were controlling. Those

cases were concerned with the validity of zoning ordinances in general. There was no consideration of and, hence, they

could not have overruled, the "very serious consequences" rule of

Miller and Certain-teed. 7 Kropf, 1**667) supra,

161-163, reaffirmed prior case law, and

Kirk, supra, 434, 439, 441, and Zaagman-Turkish, supra, 153, reaffirmed

Kropf

In reaffirming prior case law, the 1*162) Kropf-Kirk-Zaagman-Turkish decisions did not disaffirm this aspect

of prior case law. The Court of Appeals erred in disregarding the rule of

Miller and Certain-teed and in concluding that

it had been overruled

sub silentio. 8

7 In

Kropf, supra, p I 58, this Court considered the validity of zoning in general and held that parties attacking an ordinance must prove:

"first, that there is no reasonable governmental interest being advanced* * *or secondly, that an ordinance may be unreasonable because of

the purely arbitrary, capricious and unfounded exclusion of other types oflegitimate land use from the area in question."

In

Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976), this Court summarized the principles discussed in Kropf

"1. '[The] ordinance comes to us clothed with every presumption of validity.'

"2. '[It] is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the

owner's use of his property

* * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room

for a legitimate difference of opinion concerning its reasonableness.'

"3. 'Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the

ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.'

"4. 'This court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases."' (Citations omitted.)

Kropf

did not advert to zoning that would prevent the extraction of natural resources.

1***14)

416 Mich. 153,

*162; 330 N.W.2d 663, **667;

1982

Mich. LEXIS 618, *** 14

Page 8

8 Before this Court's

opinion in Kropf, the Court of Appeals had adopted a "preferred use" doctrine. This doctrine was first articulated by

the Court of Appeals

in Bristow v City of Woodhaven, 35 Mich App 205; 192 NW2d 322 (1971 ), which concerned the validity of a zoning

ordinance preventing

the construction of a mobile-home park. The Bristow Court found that the proposed use of the land had acquired a

"favored"

status in the law, thus shifting the burden to the municipality to justify the exclusion:

"[where] a

proposed use has acquired a 'favored' status and is appropriate for a given site, the presumed validity of a restrictive local

ordinance fades and

the burden shifts to the municipality to justify its exclusion." Bristow. supra, p 212.

In

Kropf, this Court disapproved Bristow, but did not address or consider the prior decisions of this Court holding that zoning which prevents

the

extraction of natural resources would not be upheld unless very serious consequences would result from the proposed extraction.

Kirk, Zaagman,

and Turkish likewise did not consider or overrule the "very serious consequences" rule. These cases simply applied the rules

of

Kropf in contexts not involving natural resources. Kirk and Zaagman concerned zoning ordinances preventing the development of a

mobile-home park

and Turkish concerned an ordinance preventing the use of plaintiffs property for multiple family dwellings.

[***15)

c

Our reaffirmance of the "vety

serious consequences" rule does not imply that [HNII] zoning which prevents the

extraction

of natural resources is unreasonable. Zoning regulations are presumed to be reasonable and a person

challenging

zoning has the burden of proving otherwise. The party challenging the zoning has the burden of showing

that there are valuable natural resources and that no "vety serious consequences" would result from the extraction of

those resources.

The Court of Appeals failed

to apply the "very serious consequences" standard in determining the validity of the zoning

in the instant cases. We [*163) reverse and remand both cases to the Court of Appeals for

fmther consideration.

CONCUR BY: RYAN (In Part)

DISSENT BY: RYAN (In Part)

DISSENT

Ryan, J.

(concurring in part and dissenting in part).

These two cases, consolidated for appeal, involve challenges to zoning ordinances which effectively prevented the strip

mining operations contemplated by the plaintiffs.

The Ottawa Silica Company wants to remove silica sand from an area

in Brownstown Township zoned

single-family residential; the Silvas would like to mine gravel in an area of Ada

Township

zoned for specialized fanning 1***16) and single-family residences. Upon failing in their efforts to obtain

rezoning, [**668) the landowners filed suit challenging the

constitutionality of the respective zoning ordinances.

While the circuit courts upheld

the Ada Township ordinance and partially invalidated the Brownstown ordinance, the

Court

of Appeals upheld the validity of both zoning ordinances.

The

applicable standard for judicial review is clearly set forth in a number of fairly recent decisions by this Court. Ed

Zaagman,

Inc v City of Kentwood,

406 Mich 137; 277 NW2d 475 (1979); Kirk v Tyrone Twp, 398 Mich 429; 247

NW2d 848 (1976); and

Kropfv Sterling Heights, 391 Mich 139; 215 NW2d I 79 (1974). In a successful challenge to the

validity of a zoning ordinance,

the 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 ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion

of

other types of legitimate [*164] land use from the area in question." Kropf, supra, p 158.

The four rules for

applying these principles were 1***17) also outlined in Kropf, supra:

416 Mich. 153, *164; 330 N.W.2d 663, **668;

1982 Mich. LEXIS 618, ***17

Page 9

1. "'[The] ordinance comes to us clothed with every presumption ofvalidity.'"

Kropf, p 162, quoting Brae Burn, Inc v

Bloonifzeld Hills,

350 Mich 425; 86 NW2d 166 (1957).

2.

"'[It] is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable

restriction upon the owner's use of his property. * * *

It must appear that the clause attacked is an arbitrary fiat, a

whimsical

ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.'" !d.

3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must

show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to

which it is reasonably adapted."

Kropf, pp 162-163.

4. "'This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases."'

Kropf,

p 163, quoting Christine Building Co v City ofTroy, 367 Mich 508, 518; 116 NW2d 816 (1962).

While not purporting to overrule the above-cited cases, my brother's opinion effectively

[***18] does so by holding, for

the first time, "that zoning regulations which prevent the extraction of natural resources are invalid unless 'very serious

consequences' will result from the proposed extraction". This holding reverses the presumption of validity accorded

zoning ordinances and creates a "preferred use" doctrine in favor of removing natural resources, contrary to our decision

in

Kropf, supra, which specifically abolished the preferred use doctrine. Therefore, I cannot join my brother's opinion.

Even a cursory examination of this Court's opinions in

Certain-teed Products Corp v Paris Twp, [*165] 351 Mich 434;

88 NW2d 705 (1958), and

City of North Muskegon v Miller, 249 Mich 52; 227 NW 743 (1929), reveals that the

supposed "rule" favoring the removal of natural resources unless "very serious consequences" would result was merely

obiter dictum in each case. In

Miller, supra, the Court affirmed an injunction against oil drilling under a city ordinance

requiring a drilling permit; therefore, the supposed policy in favor of exploiting natural resources was not followed in

that case. In

Certain-teed the Court reversed the law case based on the zoning ordinance, [***19] but remanded the

chancery case in contemplation of continuing judicial supervision and control over the mining project; the plaintiffs in

that suit 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.

It

is particularly inappropriate to elevate dictum to holding when the dictum embodies [**669] the public policy of

1929 and 1958, not 1982. We have long since abandoned the illusion that our scarce natural resources are infinite and

renewable and therefore should be quickly exploited to the fullest extent. See

Michigan Oil Co v Natural Resources

Comm,

406 Mich 1; 276 NW2d 141 (1979); MCL 691.1201 et seq.; MSA 14.528(201) et seq.

If there was error in either of these cases, it was the failure of the Court of Appeals in

Ottawa to give adequate

deference to the factual findings of the trial judge in this equity case. On this basis, I agree with the remand in that case

but would affirm in the

Silva case.