Title:تنظیم استخراج شن و ماسه: درس هایی از قانون CM میشیگان

۲۹-۰۲-۲۰۱۲ ارائه دهندگان: مارک ویکوف، ریچارد کی. نورتون و ترودی گالا همانند بسیاری از منابع معدنی، برنامه ریزی برای استخراج و تنظیم استخراج شن و ماسه چالشی دشوار است. حقوق مالکیت خصوصی افرادی که دارای منابع شن و ماسه هستند در مقابل حقوق همسایگان قرار می گیرد، که ممکن است مجبور به تحمل تأثیرات منفی باشند در حالی که هیچ یک از مزایای مالی دریافت نمی کنند. تعدادی از مسائل اجتماعی گسترده‌تر نیز در خطر است، از جمله: اطمینان از تأمین شن و ماسه برای پروژه‌های ساختمانی و جاده‌ای. نگرانی در مورد منطقه بندی استثنایی؛ و تنظیم توسعه بر اساس یک برنامه جامع. این جلسه یک مطالعه موردی در مورد شهرستان کاسون در شهرستان لیلاناو، میشیگان است. شهرستان کاسون روی یک ذخیره‌گاه عظیم شن و ماسه قرار دارد. مطالعه موردی نشان می‌دهد: بحث و جدل از نبردهای منطقه‌بندی واکنشی بیست سال پیش بر سر تنظیم فعالیت‌های استخراج، از طریق همه پرسی رای دهندگان و شکایت‌های قضایی، تا؛ یک رویکرد فعال شامل موجودی مواد معدنی و برنامه‌ریزی برای استخراج مواد معدنی، با استفاده از منطقه‌بندی جدید معدن سنگریزه. به دنبال آن چالش‌های حقوقی تا دادگاه عالی میشیگان، جایی که قانون قبلی دادگاه در مورد استخراج مواد معدنی باطل شد؛ و سپس کمتر از یک سال بعد به اقدام قانونی ایالتی برای بازگرداندن قاعده مساعد استخراج مواد معدنی توسط قانون ایالتی. و اکنون به درگیری محلی بر سر تنظیم استخراج بازگشته است. این وبینار تعدادی از اصول حقوقی را در زمینه استخراج شن و ماسه توضیح می دهد. این هم اهمیت منطقه‌بندی بر اساس برنامه‌ریزی صحیح را نشان می‌دهد و هم نشان می‌دهد که چگونه شکست گسترده در حاکمیت در پراکندگی می‌تواند توانایی جامعه را برای فراهم کردن استخراج منابع معدنی در جایی که در آن قرار دارد، تضعیف کند.

قسمتي از متن فيلم: This is Amy Jordan from the Michigan chapter of the American Planning Association I just wanted to welcome everybody we’re going to get started here in just another moment here welcome to today’s sienhua credit webinar on the topic regulating sand and gravel mining lessons from Michigan today’s webinar is brought to you by the

Chapter divisions webcast series the series provides APA members with up to 40 cm credits at no cost which of course is great for all of us on a tight budget you can follow the webcast series on Twitter and Facebook and you also find that there’s an archive of these

Distance learning webcasts at the Utah chapter site for those of you who have not checked that out I find the easiest way to get there is login to your APA account go to the chapters page click on Utah and up on the right hands upper right hand corner of their homepage

You’ll see the webcast button we’re coming to you today from the offices of the Michigan Association of planning ma P is the APA chapter here in Michigan and I would like to thank our executive director Andrea Brown AICP for hosting us and Amy Jourdan and Lauren Carlson of

The staff for providing us technical assistance the Michigan association of planning has approximately a thousand professional members and another 3,000 members who are local officials here in Michigan Michigan in Chapter will be sponsoring an upcoming ethics credit webinar entitled your ethical responsibility to social equity on March

۲۲nd the featured presenter will be APA president president Mitch silver AICP you may want to log in and and sign up for that one because of course the ethics credits are hard to come by and mitch is a wonderful speaker you should be able to log your CM credits

Shortly after today’s broadcast if you wish to ask a question of the presenters at the end you can type it into the question box or go to the on the GoToWebinar menu you’ll see that on your menu if you’ve never done this before today’s webinar should also be available

In the archive on the Utah chapters website by early next week typically they’re available shortly after broadcast today’s webinar is sponsored by APA a small town and rural Planning Division Dave gavest fai CP of Benbrook Texas is our star division chair my name is David Burch ler

I am secretary treasurer of Starr and will moderate today’s webinar I wanted to give Dave GAD a special thank you for letting me moderate since we were based in Michigan today the small town and rural Planning Division is a group of over 500 small town and rural planners

With the mission to promote and support planning excellence at the small town and rural level and to facilitate communication and collaboration among small town and rural planners a few examples of star’s current activities include hosting an eight credit mobile workshop to Catalina Island offering a cm credit dinner meeting on tourism

Planning and presenting a conference session on the future of small town planning mid state and local budget cuts at the 2012 APA conference in Los Angeles the Catalina Island workshop is proving to be very popular registration is very solid for that one we also publish a quarterly electronic newsletter appropriately titled small

Town and rural planning and we have a presence on Facebook and LinkedIn where we have a discussion page our annual awards program celebrating excellence in small town and rural planning has a March 5th application deadline so there is still time for you to get your small town plan or program submitted we

Nominate worthy small town and rural planners for election to AIC Pease College of fellows we monitor and support legislation at the federal level that affects small towns and rural communities and we provide graduate planning students with internships support the getting work experiences small town and rural settings if you’d

Like more information about the star division and how you can join our web pages listed at the bottom of the current slide today’s webinar regulating stand and gravel mining lessons from Michigan was originally presented during the Bettman’s symposium at the 2011 APA conference in Boston our three speakers

Have updated that material for a special presentation today leading off with the local Planning and Zoning history behind Keizer versus Caston Township this trudy gala AICP trudy has been resident of Leelanau County nearly her entire life and has been employed with Leelanau County for 23 years serving as planning

Director in the last 15 years Trudy is a member of the American Institute of Certified planners and holds a Bachelor of Science degree from Central Michigan University with a double major in earth science and geography and a minor in conservation providing the procedural history and the competing arguments we will hear from

Mark Wyckoff FAI CP mark is a professor at Michigan State University where he serves as senior associate director of the land Policy Institute and director of the Planning and Zoning Center mark is a community planner with 35 years of experience 24 years running a private-sector consulting business and

Is a fellow of the American Institute of Certified planners he also edits and publishes the Michigan specific monthly magazine Planning and Zoning news which is now in its 30th year finally the Michigan Supreme Court decision and the Legislature’s response will be covered by Professor professor Richard K Norton dick Norton is chair

And associate professor of Urban and Regional Planning program at the University of Michigan’s Taubman college of architecture and urban planning where he teaches planning law and state and local land use management dick holds a PhD in city and regional planning and a JD from the University of North Carolina

As well as master’s degrees in public policy studies and Environmental Management from Duke University with my lowly bachelor’s degree in planning you can see why I’m only the moderator and because I’m in very high company without further delay here’s Trudi gala to begin today’s presentation what caste and township

Looks like and then a brief history and gravel and sand operations in the township and that will set the stage for our next two presenters who will discuss what happened in the court the changes to Michigan law and where things stand right now so a little information first

Alderman our County we are a small county in northern Michigan with a 2010 population of just over 21,000 we are surrounded by water on three sides by Lake Michigan we have four islands and we’re the second smallest county in the state by size with just 348 square miles

And you can see it on this slide it’s highlighted in the dark blue a next slide is a little bit of information about cast and Township and you can see an area that is outlined in the lower left on that map which is the square designation that’s cast in Township with

A population of just over 1,600 from the 2010 census and then on the right hand side is an article that came from our local newspaper and it shows a drawing of the gravel district which is approximately 3,100 acres and sits almost right smack in the middle of Katherine Township on the next slide

Have a few photos for you to look at just kind of outlining there there’s a variety of land uses in this Township it’s not just standard gravel operations there are farming operations there are all different types of farms such as horses alpacas and lavell ranches there

Are County and Township parks as well as federal and state lands logging and maple syrup operations a small town which is the town of maple City a landfill and of course the sand and gravel operation next slide please throughout the history of this issue in Caston township which by the way is the

Longest-running planning and voting issue in the county the township has tried to balance the interests of the residents with the need for gravel excavation so they did quite a few things back in September of 1989 which was about a year and a half after I started work here at the county they

Eliminated a business three district in the township zoning ordinance and created two separate districts they did a district for earths removal coring gravel extraction mining and related mineral extraction and then a second district for landfills the only landfill in this region is located in southern area of Katherine township and it is

Privately owned in 1994 they then did an amendment which deleted the reference to related mineral extraction businesses and they replaced it with mining at that time there was the proposed asphalt grant to come into the township and after much officers opposition from citizens the town should remove that

Wording to eliminate any plants coming into their area there are asphalt operations located in the county to the south of Leelanau County in 1995 they then approved an amendment to provides for special land uses and the permits and inspections and so forth they go along with it

They also approved a new master plan and conducted a system survey and then in 1997 they adapted a new zoning ordinance they had the gravel district identifying they had mapped in the master plan and the zoning ordinance to guide future decisions on these extractive operations and the master plan was very explicit in

Recommending that these operations be confined to the existing district in the next slide who have some further information with regard to the court case that were specifically talking about today and this started back in 2003 with the rezoning request from mrs. Edith Kaiser the Township reviewed this

Case in 2003 and then it was reviewed by the county about a month later in November of 2003 but as you can see on this slide and I’ll explain a little bit later the final vision was not made by the township boards more than a year after this time

On this map outlined in green is Kaiba’s property and it has the red stars which kind of depict the corners of her property adjacent and immediately to the east of her property is Braille extraction operation moving on to the next slide this is a little history of

What led up to this in 2003 Kaiser hired a firm to do a gravel volume survey of 188 acres of her property after the County Planning Commission meeting in November the results from that survey were released which showed a substantial volume of marketable gravel on the site

It also showed an average of 30 foot depth of gravel throughout the zoning districts Kyler’s reasons for asking for the rezoning request included economic reasons her husband was now deceased she was looking at the property for retirement income and wanted to do some home repairs and fix up on the property also

She listed the time money and effort that were already spent in preparing all the documents for the rezoning and to get ready for gravel extractions she stated she was only requesting a rezoning a part of the total 236 April Shield she felt there was a need for the

Gravel and they were mining and gravel operations the clerk occurring close by the site and we got a footnote down here that the township minutes during the development of that gravel district which was prior to kaisers rezoning request so that her husband at the time was against his property being placed

Into the district and was also against the district going any further west and County Road 669 which it does go west of it and this information also came out in the court case Nick’s wife from our staff report then the Township master plan was cited and we noted in there

That the gravel district was proposed to confine that gravel mining to areas already being mined into those areas identified as having the best deposits for mining and it was the Commission’s position that sufficient deposits already existed in that area for the foreseeable future and no other area in

The township should be developed for the purpose we use dark graphic information system at County to reveal that there were about 30 100 acres or 89 parcels in the township that were already zoned for gravel which accounted about 14% of the townships total acreage we also looked within the

Actual gravel district and saw that there were three hundred sixty seven acres being not mine or about twelve percent of that total gravel district area and here are a couple maps that were included in the staff report and also ended up in the Circuit Court case

On the left is the zoning map so in the middle you will see the light yellow area which is the gravel district surrounded by a light green area as the AG district and then the very dark green is fourth the district and the red stars on both of these maps depict the

Location of mrs. Keiser’s rezoning request during the court case one of the questions that came up is well in the gravel district there are only a few people who own the land and they’re controlling all the gravel operations so as part of the maps that were developed

In the court case we looked at the ownership and each one of these colors that are on the right hand side depicted different owners within that gravel district so it was a way to show that there were actually numerous owners within that gravel district and not just

Very few now I want to show you very quickly the future land use map you can see the gravel district again in the middle and that outlines exactly the boundaries of what it is on the zoning map the red stars AG and I are missus kaisers property and then you can see

The surrounding agricultural land and forested land I mentioned the landfill earlier and that is down in the right hand corner and that kind of dark blue or purplish color next slide now going back just a moment I mentioned that the township board did not act on this with kaiser’s request for more than

A year and the reason for that was there are five members on the township board and three of them declared conflicts of interest there were three of them that either owned a share in gravel operations occurring in the township or were receiving royalties for operations on the property so they

Consulted with the township attorney who advised them they could not vote on it because of a quorum and then they also cannot vote on mr. Kaiser’s request because there was not a quorum lots of numbers so Tyson’s attorney challenged us with an argument that there may be a

Majority of remaining members that could act on this request but nothing happened with that next slide thank you a little more history on this and like lleana excavating case came forward at about the same time that mrs. cases request came forward and that was to rezone 68

Acres from were forced into a gravel district they were asking for parser to be rezone that was already adjacent to a parcel they owned in the gravel district being used for extractive operations so they wanted to add onto the parcel with property they already owned by modifying boundaries of that gravel district it

Was recommended for approval by the Township Planning Commission out of over three to two how we agreed with the township on that recommendation went to the township board they cited conflict of interest and later this request was denied now Lake Leona excavating filed suit mediation filed and then the township

Stayed they could not act on this case until Kaiser’s case was resolved and then the case was later dismissed and it’s my understanding that it was dismissed merely because of a technicality that papers were not filed within a period of time in the court system so it was a case that was

Dismissed the township was also sued earlier in 1998 over a different type of development it was a Planned Unit development for residential use in the township and at that time their master plan was challenged in the court case and the township did prevail on that they’ve had a history of numerous

Rezoning request since the early 80s they’ve also had to referendum cases which overturned local decision and rezone property to gravel use which the township had denied these were all prior to mr. Kaiser’s request and going back to that kneading of missus kaisers a request before the township board it

Came to the township board in December of 2004 and there was a change of one member on the board so they only had two men I had a conflict and there was a recommendation on this and the township denied mr. Kaiser’s rezoning request so the reasons they cited for this where

There’s already 3,100 acres in the gravel district with just a small amount of that being mined so there’s adequate land available for gravel extraction the request was not compatible with the townships master plan the township Planning Commission had recommended denial and in the staff report from County Planning it was stated in there

That unless there’s a demonstrated shortage of gravel deposits staff felt there would be no reason to necessitate zoning at this time next slide so just a little summary here to kind of wind this up a little bit in 2004 that township denied the rezoning of the property

Tiger filed lawsuit and you’re going to hear about that a little bit further from our next two speakers the complaint was filed in February 2004 which was ten months prior to the township board making with a final decision in January 2005 that case was removed from a stay

And placed on the pellet docket amended a complaint was filed I was called as a Township witness and I completed an affidavit and two sessions for depositions our County Planning Commission minutes were taken and the recommendation was entered into the record which by the way I can tell you

From experience with a couple court cases we’ve gone through already on this it is very important to capture in the minutes the decision that’s made as well as all the reasons for that decision now following that kaisers attorney requested that my deposition as well as the deposition of another professional

Planner that the township hired be thrown out and we be removed as witnesses but that was denied and both of us did end up testifying in this Circuit Court case some of the documents and studies that were conducted by both sides are quite expensive I’ve listed a

Few of these here maps that were done rezoning master plan ownership map aerials recent sales in the area there were studies such as appraisals of vacant property and home sales traffic and noise studies valuations of the properties within the district and within the township and numerous interviews with neighbors concerning

Issues such as noise dust and hours of operation it’s like in 2006 the Honorable Thomas Power heard this court case and one of the things he stated in his bench trial decision was that Caston township was most blessed and cursed with a large deposit of apparently is a

Very good quality gravel the trial court applied the silver versus Edith Township no very serious consequences rule in this decision and the trial court struck down the township decision and judge power ruled that the township could not enforce the agricultural zoning on the subscribers property or interfere with

Her right to have a grow operation he stated that operations could not occur after 5:30 p.m. and Township permitting and regulation processes had to be filed Katz and towns have filed an appeal and we get down to my last slide before we lead into the next two speakers well

We’ll go into the court cases in more detail we look back and you know looked at why do camps in townships file this appeal and it was an important case for them it was a precedent setting they had a desire to uphold the townships right to plan and zone under Michigan statute

The property of missus kaisers lie of missile Kaiser’s request was outside the ground district and that in compliance with the townships master plan they noted that sand and gravel existed all throughout the township if they could not plan for this use could they plan for any uses in the township they had

Numerous citizen petitions against this rezoning and they had already upheld the master plan on a previous case that would that Planned Unit development case I mentioned and they felt they had to move forward and also uphold their master plan in going on this case the township master plan the zoning

Ordinance minutes and other information can be found on our website which is listed in the bottom right hand corner here and that is basically a brief outline of Hall this all got started and so I will turn it over to mark now who’s going to explain more about Michigan’s plan

In zoning and what happened with that appeal thank you Trudy good afternoon this is Mark why cough um I’m just coming out of a period of laryngitis so I hope that you can hear me you might need to turn your your volume up a bit the one other thing

Andrea Brown here at the Michigan chapter American Planning Association is going to be posting these slides from this presentation on the map website so for those of you who don’t want to go and listen to the entire thing again just the PowerPoint slides will be available for your review I want to talk

About the procedural history that was involved in this case and some of the competing arguments that were advanced as you have already heard it’s a pretty complex history at the local level you have several decades of conflict that the township attempted to resolve through a special study to identify

Where it’s gravel resources were to incorporate what they learned into a plan and the zone consistent with that plan and then of course the challenges that occurred since then in the Kaiser case but they really did all that to try and prevent more lawsuits that occurred prior to that but the context in

Michigan is even broader than the situation in Kasten Township we have a lot of minerals in Michigan which is not unusual many states of the country are similarly situated are huge amount of sand and gravel is because the glaciers came through three times and mixed everything up pretty significantly but we also have

Limestone and iron copper Gipson a lot of oil and natural gas under the ground so we have a lot of mining activity and the rule that we’re going to talk about that the Court established deal with mining does not apply just to sand and gravel it applies to other mineral resource

Now Michigan’s planning and zoning enabling acts were very much on the traditional models we consolidated three planning enabling acts into one in 2008 and that was a the Act authorizing planning in cities and villages a separate one authorizing it in Township and townships and the third one authorizing planning in counties then

Just two years prior to that we consolidated the three zone e enabling acts for the same governmental unit types into one statute in the process we have an opportunity to do a little bit of modernizing of those statutes and generally speaking there’s local authority in Michigan to regulate nearly

All land uses there are some exceptions for example townships and counties are not permitted to regulate oil and gas extraction that is regulated by a state agency we do have a couple of provisions in our zoning enabling act that are unique nationally one of them is the

Section you see on the screen now 207 which is a section that deals with what we call exclusionary zoning this is a section that prohibits municipalities from excluding lawful land uses in the presence of a demonstrated need unless the community can demonstrate that there isn’t any location within that unit of

Local government or the surrounding area which is typically viewed as a market area for appropriately locating that use and that’s a sort of an unusual provision that puts a burden on municipalities to plan for these difficult land uses as Casson Township had done in this particular case the

Context for the case also includes an old court opinion in Michigan the Silva versus ADA Township case this is a 1982 appellate court decision that the court acknowledged something that is fairly obvious to anyone that deals with land-use issues and that is that minerals can only be mined where

They exist but the problem with that particular opinion is that it then elevated this physical consideration over other local planning and zoning considerations such as the traditional ones that would exist relative to impacts on abutting properties and so on in fact the Michigan Court gave minerals

What we call a preferred use status and that’s a term actually that the court coined because there were two sets of land uses prior to minerals that the courts were actually quite tired of getting local planning and zoning disputes before them one had to do with manufactured housing or mobile homes the

Other had to do with apartments and the court felt that in many cases municipalities were being exclusionary and for a brief period of time they elevated those land uses to preferred you status giving them nearly carte blanche authority to establish where they wanted to ultimately the court said

Now that didn’t really make any sense we’ve got to consider a variety of other other factors but in the mean time this this mining case came along it was one of those where a type of use was given preferred you status now in the silver case the Michigan Court created a rule

Which had the effect of allowing mining virtually anywhere except where there were going to be quote very serious consequences and while the court didn’t define that in its opinion several cases that came down after that where municipalities attempted to explain why they were opposed to the mining operations the impacts on adjoining

Properties the problems and impacts of the haul routes and the noise and size of the trucks especially were those routes are intersected with bus routes for school kids all of those were factors that municipalities were using as arguments against the future sand and gravel operations and saying that those

Were very serious consequences with one exception the Michigan Court rejected all of those arguments in subsequent cases in the one case which was a Highland tentative case where the court accepted the arguments there was a large very high-quality sand and gravel resource that the industry had on for

Several decades but the land around it had developed into a high-value suburban homes and a very large number of not only the homes but families with children and bus routes were involved and the community was able to demonstrate that the impact of hauling the gravel out was going to be in fact

Very serious consequences but other than that most of the cases had gone against the municipalities because of the very serious consequences rule now in terms of the relationship of local planning disowning in Michigan we’re like most of the states in the country planning the master plan in particular is supposed to

Be the basis for the zoning ordinance but the courts have not always consistently recognized that most often though where they have sustained zone thing and do point at all to the master plan they acknowledge that the plan provides a rational basis for the action that’s being implemented through the

Zoning ordinance now because we have 83 counties and about 1242 townships we have a structure in place where either townships or counties can zone if you have Township zoning they do need to send their proposed rezoning request to the county for review and comment prior to them taking action in many of those

Counties like Leelanau County where Trudy works the county planning staff provides technical assistance not only to the individual townships specific land-use issues but also in the form of training programs and sample ordinance language and so on and Leola County does a tremendous amount of that particularly notable given the small

Size at the County involved now the problem here is that when you have a court rule that’s been established and applied a large number of times you are then faced with the daunting challenge of trying to overturn established case law so when the Kaiser case came along

None of the court of appeals no matter what they may have thought relative to the facts felt compelled to apply the silver rule and support the plain of Kaiser so you’re in a situation where the municipality is not permitted to basically address the land use issue in

The same way they would with any other land use now it turns out that another case that was working its way through the appellate court system Michigan at the same time may have had a lot to do with the ultimate outcome here and that was the hem V versus Putnam Township

Case this was a case that largely dealt with the issue of ripeness being was the particular proposal to rezone land for a Planned Unit development ripe for court adjudication at that point or did the developer jump the gun and go to court before getting a final decision at the

Local level but it also dealt with allegations of exclusionary zoning and as you can as you’re about to hear of the Kaiser case the exclusionary zoning issue was one of the issues that was raised in this particular case on appeal and it also then permitted the Michigan

Supreme Court to consider two cases at the same time that dealt with the same issue even though they dealt with them in very different ways now this case has so many oddities about it it is it is quite amazing it almost never got to the Michigan

Court at all because the appeal that was filed from the court of appeals to the Supreme Court was initially denied and it is it is highly unusual for the court to first of all reconsider a denial and the secondly even if they do reconsider it to support the hearing of the case

But in this particular denial there were two justices that file the lengthy dissent and they cited the large number of very detailed and well-prepared amicus briefs that were filed prior to the Court of Appeals decision which is also highly unusual normally we get amicus briefs filed only before the

Michigan Supreme Court in this case there were quite a number filed before the court of appeals and then the second thing was the Hendy case coming before it at the same time arguing one common issue so a a little bit almost two weeks after the court initially denied

Accepting the case on appeal on the courts own motion and not on the motion of the plaintiffs and the other appellant the court denial to leave to appeal was set aside and they agreed to hear the case I’ve been following appellate court decisions in Michigan for a little over

۳۵ years now I don’t ever recall this having occurred before I have talked to a number of miss full attorneys who said yeah it does happen but it is extremely rare so we ended out with the case being able to go to the Michigan Supreme Court what is very important to consider at

This particular point is the royal role of the American Planning Association and the Michigan Association of planning in the case and some of you may see a parallel to issues in your own States and may decide that you might want to take advantage of some of the resources available at the American Planning

Association in this particular case the township attorney prior to the decision at the court of appeals felt that the township had done everything that it was supposed to do but it lost because of this very serious consequences rule and at the circuit court level and that he

Was afraid the same thing was the result was going to come from the court of appeals so he reached out to see if there wasn’t some support or help that he could get he was directed to the Michigan chapter of the American Planning Association and to the American

Planning Association and the APA as you probably know has an amicus committee and they immediately engaged they saw that this case was fundamentally about consistency of Zoning with planning and they helped the Michigan chapter secure assistance from Professor Gerald Fisher who’s a professor at coulee law school and from dr. Richard Norton who’s

Sitting to my left today and one of the presenters here at the University of Michigan on the two of them teamed up on several amicus briefs that were filed before the Court of Appeals and then again before the Michigan Supreme Court the APA remained engaged after the loss

At the Court of Appeals we believe that APA is name on the amicus brief helped to show the national significance of the case and it probably led to several other amicus briefs being filed and you’ll see on this slide the number the groups that were involved in filing me

Amicus briefs the American Planning Association of math and the Association representing Michigan townships the Association representing Michigan cities and villages the public corporation law section of the State Bar the Michigan aggregates Association representing the sand gravel industry and then Michigan paving and materials also representing that industry national firms were

Involved as well as state firms in advising on some of these amicus briefs most of what it’s ran 50 pages of not counting appendices so they were very very well considered and thought-out argument that were advanced before the Court of Appeals in the Michigan Supreme Court

Now if we look at the arguments for the plaintiffs that were advanced this would be on behalf of mrs. Kaiser the reliance on the preferred use a nature of sand gravel mining was of course the first argument that they’re going to make and it’s the the bad in the fact that there

Would be no very serious consequences from the mining in part because there’s so much sand and gravel mining already going on in the township that aid therefore ought to be approved for the industry the silver rule had basically created a slam-dunk making it fairly easy to get past a local zoning

Opposition they also though did attack each of the townships arguments that attempted to undermine the silver rule and it concluded that the gravel resource should be extracted because there would be no no very or be no real harm to come from it now the arguments of the mining and just lining interest

They really focused again on the very serious consequences ruled and even argued that it had a constitutional origin and that it now had been relied upon for several decades and that if it were to be overturned it would create and quote undue hardship on the landowners and Industry musicale fees

They argued have an obligation to plan and zone for all natural resources including the extraction of mineral resources and that if sand and gravel were not protected resources along with other mineral resources then there would be surface land use is established which would prevent the extraction at a later

Time of these minerals now it’s very interesting that in one of their amicus briefs they really made a strong point that the lack of statewide or regional planning for the extraction of mineral resources is the real problem in other words municipalities don’t always always know what mineral

Resources exist below the surface and so they’re making surface land-use decisions whether that’s for planning or zoning purposes without always knowing what minerals are below the surface my understanding is are only a few states where there have been comprehensive mineral inventories that have been taken and that consequently

That makes it very very difficult for land use planners to deal with not only surface lis induce activities but also subsurface minerals that should be taken into account when surface planning is done planners a municipal interests argued that you know very serious consequences rule and actually been superseded by the legislature in 1978

The language that I showed you that’s presently in our municipal zoning enabling Act was actually first adopted and it was virtually no change between 78 and the pen in 2006 and that that language putting a burden on municipalities to not exclude a lawful land use and unless there was no place

That they could really locate it within the community really was the Legislature’s effort to try and deal with a wide range of difficult to site land uses and that therefore that rules who preceded the no very serious consequences rule this was a novel argument to the Michigan Supreme Court

Not one that had previously been advanced or considered second that the rezoning process was circumvented by the judicial review under Silva in a way that separated the powers of various governmental entities the power of a local government of elected officials the governing body to make a decision

Can dependent from the courts and that separation of powers doctrine became very important and people talk about that some more third that really what happened when the civil rule is that the court had shifted the burden of proof onto the municipality to defend the ordinance instead of as in all other

Cases in Michigan the burden resting on the applicant and the applicant really in all other situations has the burden to show that there particular use is not only lawful but is being appropriately cited under the circumstances and then last then at the townships local Planning and Zoning

Actions that led up to this district in denial were adequate to justify the reasonableness and the decision to resume and that the township having done that had provided for the growth of the industry their own studies showed that they had probably a hundred years worth of sand and gravel relative to the

Industry need within the region that were already locked up in their sand and gravel district so with that I’m going to turn the microphone over to dr. Richard Martin ok I’m going to talk about the law and particularly constitutional law and then the state legislatures response to the Michigan

Supreme Court and just to provide a little bit more background APA and Mapp filed an amicus curiae brief with the Michigan Court of Appeals that was co-authored by Jerry Fischer and myself here is a long time municipal attorney in the state of Michigan after the township lost the case that the Court of

Appeals the township engaged community to represent them before the Supreme Court and then I ended up drafting the the briefs that were filed before the Michigan Supreme Court on behalf of a map in the APA so just a little bit repetitive here but just to highlight some key points Kassem Township refused

To rezone property to allow gravel mining to take place because they did not want to expand their gravel mining district the trial court did what it had to do which was to apply an adjudication rule that the Michigan Supreme Court had decided 20 years prior the no very

Serious consequences rule and the basic articulation of that rule is whenever or was and whenever considering the due process claim against a zoning regulation the zoning cannot be sustained unless very serious consequences would result from the mining or stated another way the zoning ordinance is going to get struck down

Unless the township can defend that it has to act to prevent the mining from taking place because of the consequences so here’s a case of the township doing everything it could and should do in terms of due process adjudication and it still lost and again it lost at the

Court of appeals because the Court of Appeals did what it had to do which was apply the silver rule although there was a single dissent on the three panel court that laid out some good arguments for why that was just a screwy thing to have happened and I think that that

Appeal also provided a an important justification for the Supreme Court to take it up on appeal and then as as Mark mentioned they first denied the motion for appealed and then on their own initiative two weeks later much to all of our surprise changed his mind and took up

The case the cutting to the chase the Supreme Court then reversed itself which was a bit of a surprise Supreme Court’s don’t often reverse earlier decisions why did that happen what happened with the court reversing itself there really were two fundamental questions that apply in any legal case and this is a

Good example of how of a concrete example pardon the mineral related climb I guess what’s the appropriate form and standard for deciding whether a local regulation in general or mine in particular is reasonable and appropriate and who ultimately gets this decide this case is especially about who gets to decide

Which is the proper institution to do that and again like all legal cases that are really our two species of kinds of claims that may pop up when a when a local government regulates the first being statutory claims enabling things was the township clearly and abled to do

What it was what it tried to do or in the secondary question of what’s the relationship between statutory law and common law and then a series of constitutional claims that as you all I’m sure know typically get argued and procedural due process substantive due process equal protection regulatory takings in this

Particular case what the court found in on were one constitutional claim and one statutory claim and usually courts when they hear claims will go first to the statutory claim and if they can resolve the case that way will resolve it and never get to the constitutional claim so

It was a little bit unusual for this court to do the opposite they went straight to the constitutional claim first which was the substance of due process claim and then they after deciding that went to the statutory claim and and there’s a reason for that I’ll talk about that in a minute

So really the two questions the court picked up and dealt with through Kaiser were this substance to due process which is really ultimately about was the zoning decision fair and who gets to decide and then the second question the statutory claim was was had the had the decision earlier decision been

Superseded by statute and I’ll explain how they got to that question in a minute as the parties played out the arguments for why the Michigan Supreme Court should not reverse itself why it should not reverse the earlier slow decision the first argument that the plaintiff made was stare decisis the

Decision has been reached there we shouldn’t change precedent or alternatively because the township didn’t raise this until it got to the Supreme Court they essentially waived the claim and the Supreme Court came back they didn’t raise that we argued in our Mekas brief in this court accepted this argument that times have never

Waived it because they couldn’t the lower courts weren’t incapable of reversing the Supreme Court decision really it’s the Supreme Court where it’s a relative it’s a it’s an appropriate decision to this year and decide so that was pretty quickly set aside the other the key arguments then really were that

The no very serious consequences rule was nothing more than a species of DePauw and it just provided a little bit heightened burden on deciding whether or not zoning should be or regulating mining should be allowed but it wasn’t substantially different and the the final argument that the CEA the the

Zoning an abling Act Amendments dealing with the exclusionary zoning could not have set aside the Silva decision because silver was dealing with a constitutional standard of review I’ll come back to that again that’s a little bit of a complicated concept but I’ll come back to that the Michigan aggregates Association not surprisingly

Filed briefs favoring or supporting Kaiser and they made the arguments not surprising that we need gravel don’t regulate us this is a need for our larger region and they basically we’re arguing localities are incapable of reasonable regulation every time we’ve dealt with localities they’ve they’ve stomped on us there’s probably some

Merit to that claim and I’ll talk about that when I talk about the legislature and the legislature has refused to act they’ve not picked this up we need the courts to intervene because of the inherent unfairness of this whole regulatory regulatory scheme the arguments against made by the township

Honed in on the idea that the earlier amendments to the zoning enabling act the prohibited exclusionary zoning had effectively superseded that no very serious consequences rule and this argument was pushed especially by Jerry Fisher who remember I mentioned had been engaged by the township to represent

Them in front of the Supreme Court and Jerry gosh I hope Jerry’s not listening to this webinar but Jerry’s been around for a while so he remembers a lot of the history that went behind the revisions to the zoning enabling act on exclusionary zoning and I think in his

Mind it was very clear that what the legislature was trying to do through those revisions dealt exactly with these kinds of cases and then it was should be clear that they had superseded the the Act the problem with that argument and the court picked it up and accepted it but

They did it in a secondary way the reason they went to the constitutional claim first and focused on that was because the very serious consequences rule on its face is a constitutional adjudication role it’s all about how courts should treat due process claims

And so if you if you read it on its face it’s not a statutory conflict question it’s a constitutional question and then the less jury made a really compelling argument and the Court recognized that as a secondary matter the brief that I filed and and with help of the APA

Amicus committee really honed in on how long this no very serious consequences rule was what effect it had and that kind of perversions that it had worked into michigan’s constitutional planning and zoning law and then secondarily what Cass and Tara Kaiser Caston township had done was entirely reasonable and that

Their decision should be upheld and and the other entities filing briefs basically fell in line with all of these arguments and supported them okay the big decision what did the Supreme Court actually decide um another thing that I I guess I’ll toot my own horn a little

Bit here I went back and I read the earlier cases carefully that the Silva court had relied upon to say we have this long-established rule in Michigan establishing this no very serious consequences rule and it became clear to me on meeting those earlier cases that they did nothing of the sort there just

Wasn’t the judicial pedigree there really was no basis for the rulings and that a piece of that had been addressed by the dissenting justice to judge in the court of appeals so it prompted the Supreme Court to go back and really carefully look at these earlier decisions and then a thorough analysis

Showed that there was no constitutional basis for this no very serious consequences rule that in fact it had been articulated and established as such in 1982 through the Silva decision so the first line of argument that this is a long-established rule and well said a law that really didn’t hold up to

Scrutiny that it was a fairly recent rule then the court looked carefully at the way that no very serious consequences rule and held works and held that it’s not just a species of a regular due process reasonable analysis it really completely inverts it turns to process review on its head

In fact I’ve claimed and I’ll continue to state that the way that no very serious consequences rule works is to give heightened judicial scrutiny to mining claims that put them on par with the very few cases the courts always do that which are race-based discriminatory claims in other words the rule

Effectively ran the default against the government in favor of the plaintiff and it forces the government to show that we have to regulate and there’s absolutely no other way that we can deal with this horrible problem of gravel mining unless we have this regulation in place and anything short of that the property

Owner is going to be allowed to mine so it completely inverted due process review and the court agreed it said this this this doctrine shifts the burden and it inverts the presumption which then led to the third key part of their ruling which is that they know very serious consequences will violate the

Separation of powers doctrine so here to explain that you have to remember that the separation of powers doctrine speaks to the proper authorities of the different branches of government the legislative the executive the judiciary and what the court essentially said was by the courts articulating these constitutional rules that create a

Preferred land use and and shift the presumption that zoning regulations will be struck down the court have now essentially gotten into the realm of legislative decision making that’s the realm of the legislature it’s not the role of the courts to make gravel mining preferred land uses through an adjudication rule that violates the

Separation of powers doctrine it’s wrong so essentially there’s no pedigree for this rule it’s it’s inverting due process adjudication in a way that this is a typical of how we do with Oliver the kinds of Zoning decisions in a violate separation of powers the court explicitly overturns the no very serious consequences rule

And overturns Silva Silva at that point was not good law in Michigan planners and many lawyers keep the huge sigh of relief at that point and we thought everything was golden just to quickly recapitulate Silva is no longer good law mining is not a preferred land-use the

Case at that point was remanded back down to the lower courts for further proceedings not much happened and we thought it had been settled until last summer and then out of the blue word went out in kind of a panicky way that the Michigan Legislature was considering

An amendment to the Michigan zoning and abling Act that would reestablish the silver rule in the Michigan zoning enabling act itself with reference to the Silva case specifically and I think the first the first anybody heard about it was after a very short notice that the House of Representatives was going

To hear it in a committee and the Michigan Township Association represented happened to see it and he was the only one who showed up to protest that what are you doing this may be a bad decision it went through the house and lightning quick speed and it

Went to the Senate for hearing at that point a lot of folks have been notified a lot more folks showed up at the Senate hearing including in around executive director of Mapp and myself and to start providing testimony to say basically wait a minute what are you

Doing let’s think this through let’s go slow he delayed their action by one week to allows for some more testimony but it was pushed through very quickly and in fact in 16 calendar days the law was was the Silva rule was restored with some modification which is just lightning

Fast speed and a legislative time frame what were the arguments that were put forward for why we need this and here I’m listing I sat in these hearings and I scribbled down who’s making these arguments and what are they and at the very top of the list was dog

Creation that by restoring this opal rule we’ll get some more pebble mines approved and that will create more jobs and that had the effect like a lot of arguments today if you say job creation that kind of shuts down everything else because no legislature no legislature

Wanted to be seen as as opposing a bill that was argued arguing for job creation there was an interesting I call it a manifest destiny claimed that both the House Representative in the state senator who were sponsoring this legislation made it clear to state several times on the record that these

Minerals were put there by God and that therefore we should be mining them it was kind of a God put them here he put them here for us to mind we need to mine them kind of argument very much the manifest destiny kind of argument that nobody seemed to respond to the

Implication of that then the follow-on was we should be mining minerals wherever they’re found because they were put here fought by God for us to mine there was very little consideration of well maybe you don’t need to mine them everywhere they’re found it was kind of

The you can only mine them where they’re found therefore we should mine them wherever they are found line of reasoning they also made assertions that the legislature was now acting to correct the imbalance that had been created by keyser my retort to that was no Kaiser had corrected an imbalance that had been

Created by Silva because the way the court was deciding they also they and I’m talking merely the sponsor the Senate sponsor this legislation responded well were responding to the Kaiser courts request for legislative redress that the court had somehow stated in its opinion we don’t like this

Decision we’re making but we have to make it because we’re feeling compelled to do so for Constitution a lot of reasons I don’t see anywhere in the court’s opinion where that Court was making such a claim and then can you tell I’m a little bit biased yeah thank you

They were put forward for this act and then finally the argument was made this is all about protecting private property rights it really was an argument about promoting the property rights of mining mineral owners there are a lot of property owners who showed up complaining that this is not

Protecting our rights this is going to allow our neighbors to mine in ways that will harm our property rights as you might guess the arguments against came down to quality of life concerns oh my goodness we’re going to have these new mining operations will really diminish

My quality of life don’t go don’t do this the local officials the MTA the Michigan Township Association and the Michigan Municipal League and the local official shoes showed up not surprisingly pleaded bitterly that this was yet another imposition of state a you know state authority trampling on local autonomy frankly there was some

NIMBYism going on as well and in in an uncomfortable way there I remember distinctly a property owner coming in and saying gosh if you let do this our neighbor is going to be able to start mining and while we don’t own our property but we’ve been using it as a

Longtime for a place for my kids to play and don’t let them do that and he then kind of stopped himself and acknowledged well maybe that doesn’t sound so good and it didn’t so there’s a new museum going on and then a big argument that we made is this move is really undermining

The ability of local governments to maintain the integrity of their planning and zoning schemes that you’re again even for a township like Castle Township that did it right the planning did the studies to the zoning consistent with the planning restore and so Bo will will completely remove their ability to

Maintain the integrity of their system it went through much to the credit of the MTA and the MML they they lobbied hard and effectively we’re lobbying hard with the Michigan Agri dissociation attorney who as best we could tell us that primary driver behind this proposed legislation and they added in quite a

Few more specific considerations that local governments are to consider when they adopt a zoning ordinance or make a decision on a mining claim and it’s all of the same kinds of factors that you would expect them to claim I’m not going to step through them you can read them

The one notable exception though is that there is nothing and many of the factors that are listed for consideration to deal with the integrity of the planning and the zone scheme and in fact we propose that that the Edit is a factor and then the aggregate attorney was adamant that

Absolutely no mention of planning be added to this legislation at all we don’t want planning at all we don’t want to have to don’t even want to amend just mention in the legislature and nobody on that on the Senate committee had any interest in adding it and into a

Large extent the effect of what local governments can now do when they regulate mining is is to regulate hours of operation blasting noise dust control and only in the most extreme cases where they basically cannot show that they can mitigate problems through those kinds of regulations can they refuse to rezone to

Allow a mining operation to take place now since then I’m going to trim this back to mark to talk briefly because Cass and Township is getting whipsawed back and forth a little bit because of these changes in law and after the legislature acted that Casson Township board has adopted a new zoning ordinance

That speaks to some of these considerations in this action in Kasten Township has just taken place within the last couple of weeks and basically you may recall from Judy’s presentation that the township had done a study before they established the gravel district in the first place showing that where there

Were quality gravel resources and if those resources were adequate to meet the regional need for sand and gravel for many many many decades into the future and so one of the things about this new zoning provision that was put in restoring the very serious consequences rule was that the industry

Does have to demonstrate that there’s a market but you have a Township which already has a gravel district in place and shows there is an e is no need to expand the district because there’s already an adequate supply within the area that they’ve already zone but you

Might imagine as soon as Kaiser found out about new amendments to the zoning enabling Act and to other landowners who had interest in expanding the gravel district to include more land immediately came forward and petitioned the township to expand the sand gravel district well now that the township has

Adopted the new regulations they believe are consistent with new statutory scheme the the issue will start to take on a new character the township will have to take some formal action relative to any formal applications to rezone and or they’ll face new litigation over the the issue of not permitting an expansion of

The district or considering expansion of the district only according to the new rules and standards that have been established okay so we’re almost almost again here I just want to talk briefly about what you know I talked a minute ago about why the act itself but what was driving this notion that the

Michigan zoning enabling act needed to be revised and to have this special protection for minerals put back in but then the one we wanted to step back and ask well why did the legislature act what’s going on with this legislative decision and Marc and I just wrote a

Piece I mentioned a minute that was published in the planning Environmental Law Journal and our assessment is there were three primary driving factors be to the legislature to act as it did the first was term limits Michigan is now feeling the full effects of having passed term limits about two decades ago

That pretty severely limit that time in office for state representative state senators and the governor and the end result of that is the legislature that has absolutely no institutional memory all of the all of the legislators have been there for short period of time they know they’re only going to be there for

A short period of time there’s very much a sense on the part of most administrators or a legislature rather that they want to make some big piece of legislation with their name on it as quickly as they can before they can limit it out and then they can’t go often state

It’s something and even conventionally people say well if you limit legislators their administrative staffs will at least have some memory but might my senses in the Michigan Legislature most of the administrative staff move on as well the legislators bring in their own staff and even those folks don’t have

Much institutional memory so we now have a legislature that this is a very short time frame on its thinking and it’s trying to move quickly to push through the legislation that they want to pursue without really thinking through the long-term consequences let me get some pushback on that assertion perhaps from

Some Michigan legislators and the second big problem is is that our government in Michigan now is entirely a single-party government the Statehouse the state Senate and the governor’s office are all held in Republican hands and I’m not critiquing the fact that they’re Republican what really was the problem

Was that their entire a single party and so what that meant was there was no real check to the movement of this legislation through the state legislature in lightning speed because the Democrat there was no opposing party that had an ability to slow things down and our sense was had they even drawn

Out the Senate hearing another week or two to allow more voices to be heard on wait a minute this may not be a prudent thing to do probably would have had effective shelving this legislation before it got enacted so when you get into a unit political system but there’s

No real partisan check one on one party moving everything through quickly things can move very quickly and that can lead to problems a third big reason I think mark and I think for this shift comes back to rest on planners and local government shoulders to some extent

There’s a reason the courts in the 1980s adopted a constitutional adjudication rule that protected mining and that was because local governments in Michigan had but gotten very good at finding all kinds of ways to keep mining out that through their planning and zoning scenes that effectively were consistently

Excluding them and so the mining industry was justifiably frustrated that it couldn’t develop new mines be because they were constantly being zoned out so they went to the courts to seek redress and the courts responded with this constitutional adjudication roll the Michigan Supreme Court in Kaiser

Said that was not appropriate for us to do this isn’t a pata no courts don’t make policy legislators do we’re kicking it back to the legislature so what did the money minister do it went back to the legislature and said look the court is no longer giving us the protection we

Need that bad thing to do we want you to give us the protection we need and they found legislators who were willing to carry that water for them and so there’s a there’s an institutional dialogue going on here and part of that has to come back to how local governments are treated planning

And zoning and mining in the past so that past practice and and frankly not doing a good job of engaging the industry sooner so that it’s very much at the end of a long long history so quickly to wrap up what are some lessons the first lesson the lesson that we

Stressed when we were in Boston is that constitutional law can change that when we started down this road everybody said this is never going to change the court will never reverse itself why are you wasting your time and lo and behold we got the Michigan Supreme Court to

Revisit things and it actually changed their mind and we were all quite happy with that and now our maxim has come back because council law can change when the legislature steps in as well so boy it sure is more dynamic and fluid than any of us thought I think another lesson

Is there’s still some meat to the idea of separation of powers and deferential judicial review and that means something it certainly held sway with our Michigan Supreme Court but especially after the legislative act this summer mineral resources are not on par with other land uses they’ve been elevated back to a

Preferred line you status by virtue of the amendments that were made and so the upshot is that localities in Michigan detai can regulate mining but only in extreme cases and they have to really clearly show that the regulations are reasonable and limited in scope and compelling and that’s going to take a

Lot of work part of local officials to be able to regulate mining given the new shift in other words good planning is key but it ain’t over till it’s over and even then when you think it’s over maybe it’s not really over so again mark and I just had a piece

Published on this that kind of lays out it focuses more on the legislature changed the summer and provides some more detailed discussion on that that if this is interesting to you might take a look at that in the planning environmental law and with that that’s the end of our formal presentation and

So I’m going to turn it back to David it’s a moderate well I think you can see why this session rose to the level of the Bettman symposium it was there were some very significant legal issues here that needed the kind of horsepower of the Trudy and Mark and and dick were

Able to provide we do have by my glance at the attendee list about 528 people that are currently listening to this webinar so I’m sure we’re going to get quite a number of questions we have a few that have come in already the first one goes to Trudy

Trudy’s presentation and I suppose it could be answered by one or more of our presenters and that question is what was the legal argument for removing staff as witnesses in the case you know I’d have to go back and look on that I don’t recall the actual legal argument I do

Remember there being some issue particularly with my testimony because I lived in that Township I’m on the northern edge of that Township and during my deposition there were some questions regarding my perception of very serious consequences and how a rezoning might affect me or my family so

I have a feeling that was part of it as far as the other professional planner and why he was being requested to be removed I don’t know I’d have to look back at the at the initial case I don’t if I could have a I don’t know the

Reasons for this particular decision but it wouldn’t be unusual for an attorney to try and to get any witness it doesn’t prevent favorable testimony removed so in that sense it wasn’t unusual for the plaintiff’s attorney to ask that these these two folks be removed as witnesses as the moderator I work very frequently

As an expert witness and it’s very common for the other side to attempt to have me discredited in my and my testimony it not allowed no one has ever been successful to date but that doesn’t mean that it might not happen a question for Mark can an argument be made for

Regulatory taking of property owners who own property which could be mine but are prohibited because they’re located outside of the gravel districts well the first thing to keep in mind relative to a takings allegation like this is what are the other land uses that are already permitted on those properties outside

The district and if you remember the maps that Trudy illustrated at the beginning of the program there were agricultural and residential uses of land in one area or two areas I believe it was some commercial uses of land that were permitted the properties in question the Kaiser property is being

Used as a farm and had been used productively as a farm for several generations so it already had an existing land use which was a lawful land use and the same was true relative to each of the two other properties which are now proposed or rezoning outside of the district so the burden

Would be on those proposing to demonstrate that there was a takings and the challenge that they would have to overcome is that the uses that are already authorized are not reasonable under the circumstance and wouldn’t permit a reasonable return on the ownership interest addicted you want to

Add anything to that no I think well yeah don’t do it when people say no and then they talk and it would not be a Loretto taking out a physical invasion it wouldn’t be a Lucas taking unless it would be an extreme caseware gravel mining is the only

Economically viable use of the land and absolutely nothing else is economically viable it’s hard to imagine that taking place and that would put it into a Penn Central balancing ad hoc balancing test kind of taking claim and for exactly the reasons that Mark just laid out it’s very unlikely most Penn Central takings

Claims do not prevail because there’s almost always some economically productive use of the regulation and especially if the government has now had to go to great extremes to show that we’re regulating this because of the great harm that a gravel mining operation would pose and presumably

There are other viable uses of the land other than gravel mining it’s hard to see that that a takings claim would prevail here I don’t think Kaiser would have had a successful takings claim on the facts of this particular case we have a fairly complex question here for

Dick is there any trace of a connection between a legislative action taken in 2011 that would be it by the Michigan Legislature and the American Legislative Executive Council who are identified as a major behind-the-scenes player and state legislation around the country that shifts greater power toward businesses the reason that the person

Asking this question raises a LEC as a concern is that if they were instrumental in moving Michigan legislation they may be likely to challenge similar zoning and planning claims in other states I did not see any evidence that there were any players involved in this legislation other than then local Michigan folks and

And the the primary players that were pushing for this legislation that I could tell was was the Michigan aggregates Association attorney and some some folks in there they were like there’s a lot of discussion going on with those folks before I’m during the state Senate hearings I don’t think they

Knew who I was because they were talking for me as I was stating listening to them and and I mean the thing that struck me the most was they were utterly surprised that the Michigan Supreme Court had reversed itself in Kaiser because clearly from their perspective they thought that Silva made

Sense that this this constitutional rule that gave special protection to mining was a completely logical and coherent thing you know coherent law for the state of Michigan half and that their main interest was getting that law reinstated and that’s actually why they specifically insisted that the sope rule

The silver law the silicate being mentioned in the statute by name and it does now this Michigan zone in enabling actors first specifically back to this prior to Supreme Court decision which is very unusual not heard of and and so I think it was very much a response of the

Michigan mining Association trying to correct what they saw had been an imprudent shift on the part of the Michigan Supreme Court I didn’t see any evidence that there were outside actors who were kind of pushing that or motivating it but you’re right there are certainly you know thinking back to the

Kilo case quite often property rights claims get picked up by national interest groups that are trying to use court cases to make headway where they can get legislators to act and so that concern that there might be interest groups out there kind of underwriting these actions is a real one and

Something to be on the on the lookout for the next question asks whether they’re asked how a public agency would determine that there’s a need for the particular resources and the focus of this question is that with tax dollars end up having to be used to essentially

Fund the private market study I don’t that’s a good question and I think that’ll be something where we have to see how it plays out i think i think what the way it’ll play off frankly is that the the local government will tell the person moving or requesting for the

Rezoning to provide some market studies that show the need so they’ll try and shift the burden onto the property owner to demonstrate that there is original need for these minerals and if the if the private landowner can’t do that then then the government will make the assertion there’s no demonstrated need for these

Resources and it’ll be in the interest of the landowner to make that showing so I I wouldn’t expect local governments to have to spend a lot of money themselves trying to make that demonstration they probably want to review critically whatever the property owner made claims in terms of regional need but I wouldn’t

Expect that this can be a huge issue and I would agree with dick a relative to responding to a request but if you’re in a jurisdiction that has a lot of mineral resources and you know you have those resources you would be best advised to inventory those resources incorporate

That into your planning process and decide how you’re going to reasonably approve requests for mining because and and in doing that you will have a lot of background material that can help you make your own determination as to whether or not there is a demonstrated need or a market need for that resource

Otherwise you do have to respond simply to what the applicant is going to present to you I do know from my planning practice I serve a lot of small rural communities I have reviewed many applications for gravel mining over the years and I know that most small communities don’t have the financial

Resources to do that type of analysis they can look at things like the USDA soil survey but let the sampling that’s done for the soil survey only goes to a depth of five feet and a lot of these I have seen mining resources significant high value mineral resources that are

Down ninety and a hundred people of the surface so I think that that is a very significant burden on a small community to try to inventory those resources it could be that they have to look to existing operations in their communities in the vicinity and and where those

Veins of sand and gravel and mineral resources exist and and perhaps look at some universe city studies that might persist but it is a very difficult problem for a local unit of government to try to do that type of inventory we have a few more questions that have just come in what

Happens to the burden of proof argument sounds like the burden is still on the municipality to deny to deny not the applicant to show that there’s a need that an adopted plan does not meet or address we have some related ones any future challengers to the legislation that’s planned I think the legislation

Is passed and the same reasoning could be used to justify the protection of other common resources such as forests and wetlands against bad local planning decisions related to such resources good not so the so I suggested to David that we combine these questions because they’re all kind of related and that the

First question the caller is correct because of the legislation the burden is effectively back now on the municipality to show that there’s a compelling need to regulate this mining operation and absent that showing on the part of the municipality it’s basically precluded from from regulating the mining so the

Legislation has had the effect that the proponents exactly the effect the proponents wanted which was to increase substantially the burden on local governments to Zone in wait up to significantly regulates mining activities the next question is – are there any intent I’m reading the question to be is anybody getting ready

To litigate the challenge the legislators actions is to find that that is the wrong thing to do and you might initially think well surely the legislature couldn’t have done that because the court just found that it was unconstitutional and reversed it but the main reason the Court struck down its

Own prior decision was that the court ruled it’s not our job is the court to step natural resource policy it’s the Legislature’s job to do so and therefore was shaking down Sylva so in a way when the legislature came back and said okay then we’ll elevate mining is a preferred land-use

The court will likely look at that and say that’s fine that’s that’s within the realm of the legislature to make that policy we’re not going to strike that down even if it has the effect of making it virtually impossible for a local government to regulate mining and oh by

The way the legislature has already done it it specifically prohibits townships from zoning out oil and gas operations it has other provisions that limit local governments ability to – so not group homes things like that so there’s nothing untoward in a policy sense with what the legislature did that way the

One place that it might successfully litigate is is and I mention this but part of the reasoning of the court was that the Silva decision had the effect of turning trial courts into super joining commissions that it really makes the trial court become the ultimate policymaker on whether or not a given

Zoning regulation is required visa be the need for zoning and the you know being for minerals and such and and I could see if in future cases but that it’s still happening that this no very serious consequences rule is effectively turning the courts into case-by-case policymakers the Supreme Court might

Bite on that and say this this legislation was improving but if that’s so probably not a winning argument it’s hard to see this law changing through litigation it’s probably going to need to change through more legislation and then finally can the same reasoning be used to justify protection for common

Resources such as forests and wetlands against ad local planning decisions and I think I’m understanding the question to raise some alarm that the legislature has is kind of mucking around with local autonomy and issues of regional concern I think the main difference if I’m understanding the question correctly is

That mining is being presented as a productive commercial use of property that prevents provides a public good in the sense of adequate minerally spam and there’s a very interested party on the part of the property owner to develop the land that way most other common pool resources

Like forests and wetlands and such don’t have private property owners who are looking to make serious quantities of money off of their forest or wetlands who are going to push this kind of legislation to take place so I guess what I’m cutting out of it is it’s not

Clear to me that the way the legislature and the courts have been acting with regard to minerals is going to carry over into larger questions about the protection of forests and wetlands we have only a few minutes left and a lot of questions rolling in I’ve got I’m

Going to try to combine four of them here and this may be the last one that we can try to address and these are all very closely related what is the market that must be shown to trust a PHY protecting the mining resource where does the townships gravel get used and

Then what is the region and do consider all gravel supplies within the region so is that it just within the township or does it extend to the region are there states that have comprehensive mineral inventories and why does the demand for minerals and land-use delineation have to be narrowly limited to regional needs

What about the consideration of export potential well let me start on that the market that must be shown to justify protecting the mineral resource this is really the market in the region for the use of the resource and legal Rock County if you had a chance to see that

One of the first maps that Trudy Anna is very close to Traverse City which is the largest city in that that region and so the region being served is basically region and if you have any experience with with minerals you know that they don’t get transport at a long distance

Before they’re used because they’re very heavy and it costs a lot to transport them so you’re basically talking typically not more than a thirty mile or a yes which is probably about ten or twelve miles from cast into the center of Traverse City the second one there is what states have comprehensive mineral

Inventories the only ones that I’m familiar with our minute Minnesota and Illinois and they may not be comprehensive relative to all minerals in Minnesota’s case it may only be in major metropolitan areas but I’m guessing there probably are other states that have done so those are the only

Ones that I happen to have some familiarity with and then that third question that’s related why does the mean demand for minerals and Lea induce district delineation you have to be narrowly limited to regional needs for those resources and not consider export potential it’s a very good question

It’s not one that ya dick wants to add some here well most of the gravel that’s been mine is going into aggregates and concrete production and what I heard through the course of these proceedings was that they don’t travel very far there’s really no market for exporting

We pretty Michigan so much of the state is underlain by gravel it wouldn’t make sense to try and send it anywhere else and it’s expensive to haul in my experience the the principle time where where it does get transferred it ported further is when it’s limestone and it

Can be moved by both on the Great Lakes and and it’s only going to another great lake city in that particular instance typically for iron and steel manufacture and that’s also been my experience so I would add to all of these issues about the regional market and such it’s none

Of that’s laid out clearly in the legislation it’s all going to be determined through litigation I mean that those are questions that will be litigated probably as different jurisdictions now struggle with these new laws and and we’ll see how that pans out not all of these mines are privately

Owned local Road commissions also have Santa grab operations and they use it for a lot of the work that they do within the region and then I think the question also will refer or one of the questions did on the commercial aspect of it and in the language that Canton Township recently

Adapted they have definitions for a commercial in the commercial market and the applicant has to show those needs and bring the documentation forward so they have tried to address that and sell that out in their new language amendment we were at the end of our time for today

And there are a number of questions that we just can’t get to but we will attempt to provide some answers to those at the at the archive point for the webinar I’d like to thank Trudi gala Marc Wyckoff and dick Norton for their presentation today and I’d like to thank the Michigan

Chapter and Andrea Brown for hosting us here in Ann Arbor thank you very much and we hope you enjoyed today’s session thank you you know if anyone wants to reach me and has any specific questions regarding what happened in Leland our County I’d be glad to accept the emails

And get some information back to them

ID: MjdnyEx2kdE
Time: 1343161798
Date: 2012-07-25 00:59:58
Duration: 01:33:44

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