A BRIEF VISIT WITH THE LEGISLATIVE BRANCH MAKING SAUSAGE... OR IS IT BALONEY?

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1 MICHIGAN ASSOCIATION OF MUNICIPAL ATTORNEYS ADVANCED INSTITUTE A BRIEF VISIT WITH THE LEGISLATIVE BRANCH MAKING SAUSAGE... OR IS IT BALONEY? Lansing Center March 20, 2012 Gerald A. Fisher, Professor Thomas M. Cooley Law School fisherg@cooley.edu 1

2 BACKGROUND OBJECTIVE TO BE ACHIEVED IN THIS PRESENTATION THREE-FOLD: 1.To inform you about a specific change in law relating to the ability of local government to regulate to achieve safety, health, and quality of life in connection with the mining of gravel and other minerals. 2.To alert you concerning the process employed by the Michigan Legislature to change this law. 3.To improve my personal mental health by venting about all this. 2

3 PREFACE THE OPINIONS AND CHARACTERIZATIONS IN THIS PRESENTATION RELATING TO THE ACTIONS TAKEN BY THE MICHIGAN LEGISLATURE REPRESENT EXPRESSSIONS BY THIS PRESENTER, AND DO NOT NECESSARILY REPRESENT THE OPINIONS OR CHARACTERIZATIONS OF MML OR MAMA. 3

4 BACKGROUND BROAD COURSE OF DISCUSSION WITH YOU THIS MORNING: ZONING RULES FOR GRAVEL MINING THERE IS A SPECIAL RULE ADOPTED AND ADMINSTERED BY THE COURT 2010 NO, THERE IS NO SPECIAL RULE. COMPREHENSIVE ZONING IS TOO COMPLEX, AND SHOULD BE LEFT TO THE CAREFUL DELIBERATIONS OF MUNICIPALITIES YES, THERE IS A SPECIAL RULE ENACTED BY THE LEGISLATURE IN 16 DAYS, TO BE ADMINISTERED BY THE COURT. 4

5 BACKGROUND I VE HEARD LITTLE ARGUMENT, EXCEPT FROM GRAVEL INTERESTS, THAT: GRAVEL MINING IS A USE THAT SERVES IMPORTANT REGIONAL NEEDS, BUT REQUIRES AN EXTRACTIVE PROCESS AND TRANSPORT GENERALLY CONSIDERED TO BE SOMEWHAT OFFENSIVE NOISE DUST VIBRATIONS HEAVY TRUCKS LOUD & DANGEROUS ETC 5

6 BACKGROUND CONSEQUENTLY, LOCAL GOVENMENT REACTION TO PROPOSALS FOR GRAVEL MINING ON OCCASION HAS BEEN: ZONING IS INTENDED TO ALLOW A COMMUNITY TO ADVANCE ITS OWN UNIQUE INTERESTS. GRAVEL MINING SERVES REGIONAL NEEDS, AND THE REQUIRED OFFENSEIVE USE COULD BE CONDUCTED SOMEWHERE ELSE LULU [locally unwanted land uses] & NIMBY [not in my back yard] 6

7 CONSEQUENCE OF LULU & NIMBY SILVA In 1982, Silva v Township of Ada created a new standard for determining the validity of zoning which prevents the extraction of [gravel], and concluded by announcing an exclusionary zoning rule affording special use status for resource extraction. Silva v Township of Ada, 416 Mich 153, 156, 330 NW2d 663 (1982). 7

8 Silva v Township of Ada The essence of the Silva ruling was that the application of an existing, legislatively-enacted zoning ordinance preventing the extraction of resources on a plaintiff s property would not to be sustained unless very serious consequences would result from the proposed extractive use. 8

9 Silva v Township of Ada - Interpreted Silva didn t expressly address whether the NEED for sand and gravel on a plaintiff s land was a factor to be considered. However, the entire foundation of the stricter test of reasonableness referred to in Silva rests on the important public interest involved in extracting and using natural resources. Therefore, the degree and extent of public interest in the extraction of the specific natural resources located on plaintiff's land is relevant. American Aggregates Corp v Highland Township, 151 Mich.App. 37, 43 (1986) 9

10 Silva v Township of Ada Fully appreciating that Silva represented a blatant contradiction to the overarching intent of zoning starts with the recognition that a gravel mining operation is a heavy industrial use, the type of use that creates nuisance-type conditions (noise, dust, vibration, extremely large and heavy trucks, etc) in all zoning districts other than those set aside for industrial usage. 10

11 Silva v Township of Ada Such a recognition was one of the key reasons why zoning was approved in the first instance by the United States Supreme Court in Village of Euclid v Amber Realty namely: to exclude industrial uses (whether or not they created an offensive or dangerous condition) from the other zoning districts. 11

12 Silva v Township of Ada Nonetheless, regardless of extensive planning and zoning to the contrary, Silva authorized actually directed courts to approve gravel operations in any zoning district, including a residential district, as long as there were no very serious consequences. But, what is a very serious consequence? 12

13 Silva v Township of Ada The Silva case which can easily be characterized as anti-local planning and regulation - remained in effect, with all of its ambiguity, for some 28 years! Overruled by Kyser v Kasson Township, 486 Mich 514 (2010). 13

14 Kyser v Kasson Township Kyser held that the zoning enabling act empowers local legislative bodies to consider widely different visions of the community s future, and widely varying attitudes toward quality of life considerations, and then balance these views and interests in the process of authorizing land uses and establishing zoning district boundary lines. The product of this local legislative exercise is not to be second-guessed by the judicial branch. 14

15 Kyser v Kasson Township Kyser found it noteworthy that, Ironically, the no very serious consequences rule itself potentially creates very serious consequences because the rule effectively compels that mineral extraction zoning decisions be made on a case-by-case basis, without methodical consideration being given to other long-term concerns inherent in land-use planning. 15

16 Kyser v Kasson Township Kyser was decided in August, BUT, One of the key holdings in Kyser - invalidating the holding in Silva, including the very serious consequences test - lasted only until the legislative storm of June - July, months. 16

17 The Legislative Storm of June July, 2011 On June 14 & 15, 2011, two identical bills were introduced in the House (HB 4746) and Senate (SB 470). These bills were lobbied with the efforts by The Michigan Aggregates Association. Both HB 4746 and SB 470, as originally introduced, would have starkly restored Silva by adding a new Subsection to MCL , reading in their entirety: (3) AN ORDINANCE SHALL NOT PREVENT THE EXTRACTION OF VALUABLE NATURAL RESOURCES FROM ANY PROPERTY UNLESS VERY SERIOUS CONSEQUENCES WOULD RESULT FROM THE EXTRACTION OF THOSE NATURAL RESOURCES. THIS SUBSECTION IS INTENDED TO CODIFY THE STANDARD SET FOR IN SILVA V ADA TOWNSHIP, 416 MICH 153, 330 NW2D 663 (1982). 17

18 The Legislative Storm of June July, 2011 CHRONOLOGY (DAY FOLLOWING INTRO): hearing held by House committee, and bill reported out of committee : HB 4746 passed by House with slight amendment, and sent to the Senate : (NEXT DAY) Senate Committee conducts hearing; Attempting to support the lobbyists from MTA and MML (who were already in action), along with others, I appeared and offered testimony with the Clerk of Kasson Township, Kathy Feys. We presented to the Committee, and I offered a written proposal with substitute language. 18

19 The Legislative Storm of June July, & few days after: negotiations : Further Senate Committee deliberation & report of revised SB : Unilateral modifications by the Aggregate Association and legislature; bill passed by Senate : House concurs; enrolled bill to Governor 16 days after introduction : After discussions with Gov office, the bill was signed into law with immediate effect, essentially the entire process taking only slightly longer than one month. 19

20 Act 113 The first two relevant sections, MCL (3) & (4) (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. [Emphasis supplied] 20

21 Act 113 (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 ACTIVITIES 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. 21

22 Where do we go from here in the narrow area of mineral mining regulation? FIRST, in my opinion, a critical constitutional issue emerges from an analysis of Silva, Kyser, and Act 113: Silva established a substantive due process rule, holding that the reasonableness of zoning was to be determined by applying very serious consequences test. Kyser overruled Silva on this point, holding that the no very serious consequences rule is not a species of the reasonableness test and thus is not a requirement of the constitution s Due Process Clause. Kyser, at The state legislature has attempted to overrule the Michigan Supreme Court on the interpretation of the Due Process Clause by reinstating the due process rule of Silva. 22

23 Where do we go from here in the narrow area of mineral mining regulation? In the mean time, communities with gravel deposits within their borders and there are many of them in light of the glaciation over the entire state of Michigan should adopt local ordinances responding to the burdens and opportunities created by Act

24 Where do we go from here in the narrow area of mineral mining regulation? Also, being an optimist, I believe it may be productive to open a dialogue with the Aggregate Association to achieve a mutually agreeable amendment of Act

25 Where do we go from here in a broader sense? The process employed by the Legislature in enacting Act 113 was unwarranted in at least two important respects: First, the members of the MML and MTA represent the same constituencies as the State Legislature, and all of the respective elected officials have responsibilities relating to the promotion and protection of the public health, safety, and welfare in very critical areas. Not allowing MML and MTA to consult with members and duly react was fundamentally inconsistent with the public interest. 25

26 Where do we go from here in a broader sense? The process employed by the Legislature in enacting Act 113 was unwarranted in at least two important respects: Second, the enactment of Act 113 amounted to the creation of important state policy. There was no urgency for such new policy. Especially considering that the Michigan Supreme Court had criticized the policy embodied in Act 113 just a few months earlier, legislative approval through both houses in just 16 days was totally unjustified. 26

27 Where do we go from here in a broader sense? I know the MML and MTA groups involved with State Government Affairs do a phenomenal job representing municipal interests, and that they will do what they can in the face of current conditions to avoid a repeat of this alteration of state policy. 27

28 BOTTOM LINE CONCLUSION In the mean time, if you receive a call or from the MML, including contacts from the front-line soldiers, Andy Schor or Samantha Harkins, alerting you to knew bills that have been introduced, please do not assume that you have months, or even weeks, before local authority could be eroded! 28