Amicus Brief

Edith Kyser v Kasson Township

Case Year: 2009
Case Forum: Michigan Supreme Court
Keywords: no very serious consequences, zoning ordinances, rezoning, gravel pits
Amicus Counsel:

Mary Massaron Ross | Plunkett Cooney | 535 Griswold St, Suite 2400 | Detroit, MI 48226 | 313-983-4801

CoAmicus Parties:

Michigan Municipal League Liability & Property Pool (Pool)


The Michigan courts afford de novo review of a question of statutory interpretation and the Michigan Legislature is empowered to enact statutes that supercede
common law doctrines. Under Michigan jurisprudence, where a statute sets forth comprehensive provisions, the
Legislature will generally be found to have intended that the statute supersede and replace the common law dealing with the subject matter. The Michigan Legislature’s comprehensive zoning scheme governs land uses involving natural resources, controls exclusionary zoning, and fails to include any language reflecting that sand and gravel are a favored use or adopting the “no very serious consequences” test. Michigan courts review of a question of statutory interpretation de novo and afford a strong presumption of constitutionality to ordinances that have been duly enacted by a local government.The “no very serious consequences” doctrine impermissibly shifts the burden of proof by obligating the local government to demonstrate that its zoning enactment is valid.


We hold that the rule of Silva is not a constitutional requirement and, in fact, violates the constitutional separation of powers. Further, we conclude that the rule is superseded by the exclusionary zoning provision, MCL 125.297a of the TZA, now MCL 125.3207 of the Zoning Enabling Act (ZEA). Accordingly, we reverse the Court of Appeals and remand to the trial court for further proceedings.
On order of the Court, the motion for rehearing is considered, and it is DENIED.

MSC requested LDF amicus brief? No

Significant gravel deposits underlie defendant Kasson Township. Between 1988 and 1994, defendant experienced
considerable internal strife brought about by zoning disputes and other legal battles waged over the issue of gravel mining. After a lengthy period of planning and public discussion, defendant attempted to resolve its gravel-related problems by adopting a zoning ordinance that established a township gravel district. Under the ordinance, gravel mining and extraction operations were to be permitted inside the gravel district, but were not to be permitted outside the gravel district.
Plaintiff owns a parcel of real property in Kasson Township. Although plaintiff’s property abuts the gravel district, her land was originally zoned for agricultural use. Plaintiff sought to have a portion of her property rezoned and included in the gravel district, with the ultimate goal of selling the rezoned portion to a gravel-mining operator. Defendant refused
to grant plaintiff’s rezoning request, citing the comprehensive nature of its zoning concerning the gravel district. Among other things, defendant asserted that plaintiff’s requested rezoning would undermine the zoning scheme leading to numerous other requests to allow gravel mining on land located
outside the gravel district.

Case Number: 2006-23
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