Municipal Ordinance Prohibiting Gravel Mining Struck Down

In May 2008, the Court of Appeals for the State of Michigan allowed a plaintiff to override a township zoning ordinance prohibiting gravel mining on the plaintiff’s property. (see Kyser v. Kasson Township, No. 272516 (Mich. App. May 6, 2008)).

In Kyser, the township responded to feuds over gravel mining by adopting a zoning ordinance that demarcated a gravel district. Mining and extraction were only permissible within the district. The plaintiff owned agriculturally zoned property that abutted the gravel district. In an attempt to make a profit by selling her gravel laden land to a mining operation, the plaintiff requested the township to rezone her land and include it within the gravel district. Her request was denied because the township was concerned about the "domino effect," resulting in more residents seeking to have their land rezoned and included in the gravel district.

Where extraction of a natural resource is at issue in a zoning dispute, courts typically take a closer look at a challenge to the zoning ordinance. In order to defeat a zoning ordinance, a challenger must show that the land contains valuable natural resources and that allowing extraction of that natural resource would not result in "very serious consequences." The court easily concluded that a valuable natural resource was at issue because extracted gravel could yield profit for the plaintiff. This left the plaintiff really only having to show that "no very serious consequences" would result from changing the zoning ordinance to allow for her proposed mining operation.

If public interest in the natural resource is low, the challenger will be required to make a stronger showing that no very serious consequences will result. Here, public interest was minimal because of the substantial amounts of gravel located beneath the township’s surface: 78 million tons already within the gravel district and 58 million tons outside of the gravel district.

What does "very serious consequences" mean? For this plaintiff, the court looked at several factors when determining whether very serious consequences would result: truck safety and traffic, traffic noise, loss of property value, impact on residential development, and the domino effect. Even though there would be some negative impact on the surrounding area, including nearby residents, the court still held that the plaintiff was entitled to commence gravel mining operations.

This plaintiff was able to defeat the township without having a significant justification for altering the boundaries of the zoning ordinance. The plaintiff merely wanted to sell her property to a mining operation to make a profit.

What does this mean for municipalities? Moving forward, zoning ordinances designed to protect natural resources may be in danger even if some adverse effect may accompany the proposed new land use. A challenger need only make a plea based on profitability and down-play adverse effects.