Mackinaw Center for Public Policy Discusses House Bill 4746

2011 House Bill 4746

Re: 2011 House Bill 4746 by lovetheup on September 16, 201

Of course you can do whatever you want with your property-- WITHIN LIMITS. Once you infringe on the rights of others it is another matter. There are laws, regulations, permits for a reason. We limit mining such as gravel pits because they are harmful. Necessary? Yes, in the right location. This bill was ramrodded through the house and senate and signed by the governor at unprecedanted speed by the aggregrate industry before the public was aware of the ramifications or the press or anyone else could explore. Introduced in the house June 14, received in the Senate June 22, and signed by the Governor July 20.

In Ironwood Township, Gogebic County, a contractor is trying to take a 17 acre parcel100 feet away from an elderly retired woman with emphysema and turn her peaceful country home into a living hell. There would be noise, pollution (Dust), loss of taxes (a gravel pit is taxed as vacant property), loss of property value, loss of potential home building (and employment and taxes) and the safety of our children catching the school bus et cetera will be in peril. We are not talking about a parcel in the country away from homes and residences. 

• Introduced by Rep. Matt Huuki (R) on June 14, 2011, to preempt local

government zoning ordinances that prohibit a gravel pit unless "very

serious" environmental consequences would result, as established in a

particular lawsuit (Silva v Ada township).

 

Referred to the House Natural Resources, Tourism, and Outdoor

Recreation Committee on June 14, 2011, to preempt local

government zoning ordinances that prohibit a gravel pit unless "very

serious" environmental consequences would result, as established in

a particular lawsuit (Silva v Ada township).

• Reported in the House on June 16, 2011, without amendment

and with the recommendation that the bill pass. Search legislation

 

 

Amendment offered by Rep. Rash ida Tlaib (D) on June 16, 2011, to

narrow the scope of the bill to exclude salt extraction. The

amendment

Substitute offered by Rep. Ray Franz (R) on June 22, 2011, to

replace the previous version of the bill with one that revises details but does not change the

substance as previously described. The substitute

passed by voice vote in the House on

June 22, 2011.

 

Referred to the Senate Natural Resources, Environment & Great Lakes Committee on June

22, 2011.

• Reported in the Senate on June 30, 2011, with the recommendation that the

substitute (S-4) be adopted and that the bill then pass.

 

 

Substitute offered in the Senate on June 30, 2011, to replace the previous version of the bill

with one that requires an owner challenging a zoning decision potentially affected by the bill

to show that extractable resources are present, that there is a market for them, and that no

very serious consequences would result from the extraction. The substitute

passed by voice

vote in the Senate on June 30, 2011.

•

Passed 26 to 12 in the Senate on June 30, 2011, to preempt local government zoning ordinances that

prohibit a gravel pit unless "very serious" environmental consequences would result, as established in

a particular lawsuit (Silva v Ada township). A property owner challenging a zoning decision potentially

 

2011 House Bill4746: Preempt zoning ordinance gravel pit bans- Michigan Votes

affected by the bill would have to meet certain procedural and evidentiary burdens

.

Who Voted "Yes" and Who Voted "No"

• Received in the House on June 30

, 2011.

Page 2

of)

•

Passed 85 to 23 in the House on June 30, 2011 , to concur with the Senate-passed version of the bill,

which potentially imposes certain additional burdens on property owners.

Who Voted "Yes" and Who Voted "No"

• Signed by Gov. Rick Snyder on July 20, 2011
 1)

168 feet, and two new homes directly below this location.
f a person buys a house with a gravel pit next to it, that's one thing; if a gravel pit goes in with a regular setback, that's another-- but here is an established neighborhood with an industrial operation trying to go in between two residences.

Mr. Huuki and Mr. Casperson, be sure we will remember your antics when it comes time to vote!!!!

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

House Bill 4746 Effective July 20, 2011 - Upholds Silva's "Very Serious Consequences"

Introduced

by Rep. Huuki

Act No. 113

Public Acts of 2011

Approved by the Governor

July 20, 2011

Filed with the Secretary of State

July 20, 2011

EFFECTIVE DATE: July 20, 2011

STATE OF MICHIGAN

96TH LEGISLATURE

REGULAR SESSION OF 2011

ENROLLED HOUSE BILL No. 4746

AN ACT to amend 2006 PA 110,

entitled "An act to codify the laws regarding local units of government regulating

the development and use of land; to provide for the

adoption of zoning ordinances; to provide for the establishment in

counties, townships, cities, and villages of zoning districts; to prescribe the powers and duties of certain officials; to

provide for the assessment

·and collection of fees; to authorize the issuance of bonds and notes; to prescribe penalties

and provide remedies; and to repeal

acts and parts of acts," by amending section 205 (MCL 125.3205).

The Peopl

e of the State of Michigan enact:

Sec. 205. (1) A

zoning ordinance is subject to the electric transmission line certification act, 1995 PA 30, MCL 460.561

to 460.575.

(2) A county or township shall not regulate or control the drilling,

completion, or operation of oil or gas wells or other

wells drilled for oil or gas exploration purposes

and shall not have jurisdiction with reference to the issuance of permits

for the location, drilling, completion,

operation, or abandonment of such wells.

(3) An ordinance

shall not prevent the extraction, by mining, of valuable natural resources from any property unless

very

serious consequences would result from the extraction of those natural resources. Natural resources shall be

considered

valuable for the purposes of this section if a person, by extracting the natural resources, can receive revenue

and

reasonably expect to operate at a profit.

(4)

A person challenging a zoning decision under subsection (3) has the initial burden of showing that 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 extraction, by

mining, of the natural resources.

(5)

In determining under this section whether very serious consequences would result from the extraction, by

mining, of natural resources, the

standards set forth in Silva v Ada Township, 416 Mich 153 (1982), shall be applied and

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

(a)

The relationship of extraction and associated activitie~ with existing land uses.

(b) The impact

on existing land uses in the vicinity of the property.

(c)

The impact on property values in the vicinity of the property and along the proposed hauling route serving the

property, based on credible evidence.

(d)

The impact on pedestrian and traffic safety in the vicinity of the property and along the proposed hauling route

serving

the property.

(e) The impact on

other identifiable health, safety, and welfare interests in the local unit of government.

(f)

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

(76)

(6) Subsections

(3) to (5) 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, 1994 PA 451, MCL 324.63201 to 324.63223. However, such regulation shall be reasonable

in accommodating customary mining operations.

(7) This act does not limit

state regulatory authority under other statutes or rules.

This act is ordered to take immediate effect.

Clerk

of the House of Representatives

~)\A~Vl~

.aaa•••••••••••••-•---••••••••••••••••••••••••••••••••-•---••••••••••••••••••••••••••••••••

Secretary of the Senate

Approved------------------------·

·······------------------------------------------

Governor

2