EDITH KYSER V KASSON TWP
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
EDITH KYSER,
FOR PUBLICATION
May 6, 2008
Plaintiff-Appellee,
v
No. 272516
Leelanau Circuit Court
LC No. 04-006531-CZ
KASSON TOWNSHIP,
Defendant-Appellant.
Advance Sheets Version
EDITH KYSER,
Plaintiff-Appellant,
v
No. 273964
Leelanau Circuit Court
LC No. 04-006531-CZ
KASSON TOWNSHIP,
Defendant-Appellee.
Before: Whitbeck, P.J., and Jansen and Davis, JJ.
DAVIS, J. (concurring in part and dissenting in part).
I concur in the majority’s decision to affirm the trial court’s denial of sanctions, but I
respectfully dissent from the majority’s decision to affirm the trial court’s order permitting
plaintiff’s gravel mining notwithstanding defendant’s zoning ordinance and the unique history of
gravel mining in Kasson Township.
As the majority states, the salient facts of this case are not seriously disputed. Defendant
Kasson Township is significantly underlain with gravel deposits. Between 1988 and 1994, the
township as a whole experienced considerable internal strife brought about because of zoning
and other legal battles waged by various entities concerning gravel mining, which included a
public referendum on the subject. The township eventually resolved the problems by forming a
gravel district after this lengthy and public planning process. Plaintiff’s property lies outside of,
but adjacent to, the gravel district.
-1-
Plaintiff desires to have a portion of her property rezoned for gravel mining. The trial
court found plaintiff entitled to mine gravel because the unique law that governs zoning as
applied to the exploitation of natural resources requires that the exploitation be permitted unless
“very serious consequences” will ensue. “We review the trial court’s findings of fact in a bench
trial for clear error and conduct a review de novo of the court’s conclusions of law.”
Chapdelaine v Sochocki, 247 Mich App 167, 169; 635 NW2d 339 (2001). We review a trial
court’s decision whether to grant injunctive relief for an abuse of discretion. Higgins Lake Prop
Owners Ass’n v Gerrish Twp, 255 Mich App 83, 105-106; 662 NW2d 387 (2003).
The law applicable to this question has its origins in a case that is almost 80 years old. In
North Muskegon v Miller, 249 Mich 52; 227 NW 743 (1929), the city of North Muskegon
discovered that there was oil within its limits and passed an ordinance forbidding oil drilling
within its limits without a permit. The defendant owned a parcel of property that was zoned
residential and applied for a permit, was repeatedly denied, and eventually commenced drilling
anyway, whereupon the city commenced suit. It was significant to the discussion in the case that
the defendant’s property was a swampy wasteland that had been abandoned by the logging
industry, and it was bordered on one side by the city’s odiferous refuse dump and on another side
by a primary water well for the city. It was undisputed too that the property was unsuitable for
the residential purposes for which it was zoned. Therefore, the Court opined:
It will be readily seen that the property in question is almost worthless if
its use is to be restricted as provided in the zoning ordinance. The courts have
particularly stressed the importance of not destroying or withholding the right to
secure oil, gravel, or mineral from one’s property, through zoning ordinances,
unless some very serious consequences will follow therefrom. Village of Terrace
Park v. Errett [12 F2d 240 (CA 6, 1926), cert den 273 US 710 (1926)]. The
effect of the zoning ordinance in the cause at issue amounts almost to a
confiscation of the property. The legality of a zoning ordinance, when
reasonable, has been long recognized by our courts. . . . It is, however, necessary
that a zoning ordinance be reasonable, and the reasonableness becomes the test of
its legality. [North Muskegon, supra at 57.]
Given the worthlessness of the property for any other purpose and the “lack of regard for the
property” shown by the city itself, “the zoning ordinance as applied to the property in this case is
unreasonable and confiscatory, and therefore illegal.” Id. at 59. The drilling-permit ordinance,
however, was upheld as reasonable given the proximity of the oil well to the city’s water supply.
Id. at 61-63.
The Terrace Park case, cited by our Supreme Court in North Muskegon, entailed
property that could conceivably be used for residential purposes, and was only zoned for that
purpose, but was vastly more suited to gravel extraction. Terrace Park, supra at 242-243.
Although it was undisputed that gravel mining would devalue the surrounding properties
somewhat, the Terrace Park court stressed that the specter of a constitutional “taking” loomed
more ominously where a zoning ordinance precluded something that was fundamentally inherent
in the land itself, as opposed to an ordinance precluding something that could be done elsewhere.
Id. at 243. An example of the former was a rock quarry, and the latter a horse livery. Id. The
court concluded that the zoning ordinance at issue in that case was an unreasonable confiscation
-2-
of the plaintiff’s property because the area was already afflicted by unpleasant industry, so a
gravel operation would not likely cause much additional bother. Id.
For many years, North Muskegon was cited as standing for the proposition “that a zoning
ordinance that renders property almost worthless is unreasonable and confiscatory, and therefore
illegal.” Ervin Acceptance Co v City of Ann Arbor, 322 Mich 404, 408; 34 NW2d 11 (1948); see
also, e.g., Pleasant Ridge v Cooper, 267 Mich 603, 606; 255 NW 371 (1934), Hammond v
Bloomfield Hills Bldg Inspector, 331 Mich 551, 556; 50 NW2d 155 (1951), and Bowman v
Southfield, 377 Mich 237, 248; 140 NW2d 504 (1966).
It was, however, cited for a different point by Justice Black in his “concurring” (but
actually the majority) opinion in Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537
(1957). That case again involved an allegedly confiscatory zoning ordinance that prevented the
defendants from mining gravel on their property. Id. at 301-306. The defendants asserted that
they had suffered a taking because they had a legal right to exploit natural resources, which must
be performed where the resources are. Id. at 303. The Court explained in the “lead” opinion by
Justice Smith that
[a]ttractive though the argument may seem upon its first reading, it must be
obvious that a logical application of its principle would be destructive of all
zoning. . . . [J]ust as the surface user desired by the owner must give way, at
times, to the public good, as must the subsurface exploitation. In each case the
question is whether, on the peculiar facts before us, the ordinance is a reasonable
regulation in the interests of the public good, or whether it is an arbitrary and
whimsical prohibition of a property owner’s enjoyment of all of the benefits of his
title. [Id. at 303.]
The “lead” opinion explained that the proper analysis was only one of reasonableness, citing
North Muskegon, among other cases, for the proposition that there was no absolute bar in the law
to prohibiting the exploitation of a valuable natural resource. It concluded that the
overwhelmingly residential nature of the area, the deleterious effect thereon of gravel mining,
and the remaining valuable use to which the defendants could put the property, made the zoning
reasonable. Bloomfield Twp, supra at 304-305, 309-310.
Justice Black’s majority “concurrence,” however, agreed that the proposed mining was
an enjoinable nuisance, but expressed “concern over the implications of zoning the depths
distinguished from zoning the surface,” and cited in support of that concern Terrace Park and
North Muskegon for the different proposition that the right to exploit natural resources should not
be zoned away in the absence of “‘very serious consequences’” should the zoning not be in
place. Id. at 310-311. Subsequently, Justice Black again wrote a majority opinion concurring in
part and dissenting in part with the “lead” opinion citing North Muskegon, and the citation
therein to Terrace Park, as setting forth a “warning rule” of law that if a zoning ordinance that
prohibits exploitation of a natural resource fails to meet the “test” that very serious consequences
would ensue in the absence of the zoning, the courts “must” find the ordinance constitutionally
unreasonable. Certain-teed Products Corp v Paris Twp, 351 Mich 434, 467; 88 NW2d 705
(1958).
-3-
Almost a quarter of a century later, in Silva v Ada Twp, 416 Mich 153; 330 NW2d 663
(1982), our Supreme Court returned to the issue of the standard for determining the
constitutionality of zoning regulations that impede exploitation of natural resources. In Silva,
our Supreme Court “again reaffirm[ed] the ‘very serious consequences’ rule of [North
Muskegon] and Certain-teed.” Id. at 159. The Court explained that the reason zoning
ordinances precluding natural-resource exploitation required greater justification than other
zoning ordinances was because of the important public need for those resources and because
resources can only be exploited where they actually exist. Id. at 159-160. The Court further
noted that resource-bearing land could usually be put to some other purpose, resource extraction
is usually temporary, and extraction can usually be regulated to minimize harm. Id. at 160-161.
However, even zoning ordinances that preclude resource extraction remain presumptively
reasonable, notwithstanding the higher standard; any individual challenging such an ordinance
still bears the burden of rebutting that presumption. Id. at 162.
It is worth a brief digression to discuss zoning in general. Nine years before North
Muskegon was decided, cities—and by implication in our Supreme Court’s analysis,
townships1—had no “inherent zoning power.” Clements v McCabe, 210 Mich 207, 216; 177
NW 722 (1920). This conclusion was viewed with dismay by the Legislature, resulting in,
among other reactions, the passage of 1921 PA 207, a zoning enabling act codified at 1929 CL
2633. See Korash v Livonia, 388 Mich 737, 741-742; 202 NW2d 803 (1972). A year before
North Muskegon, our Supreme Court had acknowledged that the legislative and executive
branches of Michigan’s government had recognized that zoning laws served an important public
policy, albeit one that required just compensation if property was taken as a consequence.
Johnstone v Detroit, G H & M R Co, 245 Mich 65, 74-75; 222 NW 325 (1928). As discussed,
North Muskegon, decided the next year, was at the time viewed as merely setting forth a rule of
reasonableness, and was cited as such in an official note accompanying 1929 CL 2633.
Our Supreme Court endeavored to explain in unambiguous terms that “[o]ur laws have
wisely committed to the people of a community themselves the determination of their municipal
destiny, the degree to which the industrial may have precedence over the residential, and the
areas carved out of each to be devoted to commercial pursuits.” Brae Burn, Inc v Bloomfield
Hills, 350 Mich 425, 431; 86 NW2d 166 (1957). In the absence of an affirmative showing of
unreasonableness or arbitrariness sufficient to rebut “every presumption of validity” with which
zoning ordinances are clothed, the courts do “not sit as a superzoning commission.” Id. at 430432. “We do not see the land, we do not see the community, we do not grapple with its day-today problems,” and as such, short of a taking of constitutional magnitude or “the most extreme
instances, involving clearly whimsical action,” the courts are not in a position to adjudicate the
wisdom of a community’s efforts to address its own unique problems. Id. at 436-437. This was
not a new pronouncement: again citing North Muskegon as setting forth reasonableness as the
touchstone of a zoning ordinance’s legality, our Supreme Court had emphasized 16 years before
the Brae Burn, Inc, decision that “the court should not interfere with the judgment of a zoning
1
North Muskegon involved zoning by a city, but Bloomfield Twp, Certain-teed Products, and
Silva, wherein our Supreme Court relied on North Muskegon, involved zoning by townships.
-4-
board if there is a reasonable basis for its ruling.” Pere Marquette R Co v Muskegon Twp Bd,
298 Mich 31, 36; 298 NW 393 (1941).
The “very serious consequences” rule applicable to zoning ordinances that affect natural
resource extraction is, still, a matter of zoning, and it must be viewed in that context. When its
history is considered, and when the public policy in this state of deference to zoning in general is
also considered, it becomes apparent that defendant’s gravel district is presumptively valid, that
plaintiff has the burden of proving otherwise, and that the test is still fundamentally whether the
zoning ordinance is confiscatory or arbitrary. The fact that a natural resource will be “locked
up” in the ground if the gravel district is found valid is an important consideration in this
analysis, but it is nevertheless only a part of that analysis. Put another way, the distinction
between an “ordinary” zoning ordinance and a zoning ordinance that affects natural-resource
exploitation is that the latter requires consideration of wider-scale social ramifications. In effect,
the courts must determine whether the challenged zoning ordinance is confiscatory with regard
to not only the landowner’s desire to exploit the resources on his or her land, but also with regard
to the community’s need to have those resources exploited. It rationally follows that our analysis
must also consider the negative implications to the community of exploitation, if contrary to the
duly enacted zoning regulation.
In American Aggregates Corp v Highland Twp, 151 Mich App 37; 390 NW2d 192
(1986), this Court observed that our Supreme Court had not provided any firm guidelines for
determining the existence of “very serious consequences,” although it had made clear that “the
degree and extent of public interest in the extraction of the specific natural resources located on
the landowner’s land is a relevant factor in reviewing the reasonableness of the zoning
regulation.” Id. at 43. Therefore, a “sliding scale approach” was necessary, because natural
resources do not all “involve a constant high degree of public interest,” and the only rational way
to determine the seriousness of a consequence was by comparing it to the benefits to be derived.
Id. at 43-44. The lower the degree of public interest in the particular natural resource on the
particular property at issue, the stronger a showing the landowner must make that no “very
serious consequences” will ensue from the desired exploitation. Id. at 45-47. This Court then
analyzed a variety of alleged harms that would occur in that particular case—also a gravel
mining case—to surrounding properties, including noise from trucks, traffic-safety issues,
decreased property values, and stunted residential development along the truck route because of
the noise; this Court found the low public interest in the resource and the plaintiff’s failure to
prove no “very serious consequences” warranted upholding the zoning ordinance at issue. Id. at
47-51.
The American Aggregates Corp Court therefore properly recognized that the “very
serious consequences” rule remains, consistent with any other zoning analysis, a test of
reasonableness, albeit one that takes into account more factors than would ordinarily warrant
consideration. Critically, however, this Court in American Aggregates Corp did not consider the
kind of “very serious consequence” that is primarily at issue here: not merely the effect gravel
mining will have on the immediately surrounding properties, but the effective dissolution of an
entire community’s legal framework specifically created to prevent itself from self-destructing.
More particularly, the trial court’s findings of fact included a discussion of the resulting
expansion of gravel mining in the township if gravel mining was permitted on plaintiff’s
property. The trial court opined that the answer to “where does this end?” was that gravel
-5-
mining would probably expand to natural boundaries: two national parks, another gravel-mining
operation, a property owner who expressed no interest in gravel mining, and areas that simply
could not be mined profitably. In other words, the only effective limitations on transforming the
entirety of Kasson Township into a gravel mine would be the existence of gravel on a given
parcel of property and the property owner’s own interest in mining.
Despite the trial court’s factual findings above, the trial court found no “very serious
consequences” because it believed Silva and American Aggregates Corp required it to make that
finding. I believe that the trial court erred in relying too narrowly on these cases instead of fully
considering the underlying legal principles involved. See People v Stafford, 434 Mich 125, 133135; 450 NW2d 559 (1990). I believe that the majority likewise errs in ignoring or
misconstruing the actual ramifications of the trial court’s findings, particularly given defendant’s
history.
As the trial court recognized, the gravel district is the result of intensive planning efforts
by defendant, with widespread community participation,2 to arrest and avert its own destruction.
The evidence showed considerable strife, animosity, and uncertainty brought about by both
gravel mining per se and lawsuits brought seeking to permit or prevent mining, among other
issues. In other words, the gravel district was formed to prevent precisely what the trial court
found would occur—uncontrolled intrusion of mining into any part of the township that would
support it, irrespective of the consequences to the community. The trial court also determined
that the gravel on plaintiff’s property, if mined, would only “add modestly” to an existing gravel
reserve that at worst would last “not much less” than “into the latter part of the 21st Century,”
and that “if this gravel wasn’t ever mined we would survive just fine.” The need for this
particular gravel is therefore low, and the township has already gone to great lengths, with the
involvement of its citizens, to permit gravel mining within its boundary in a managed and
controlled manner. Under these circumstances, destruction or extensive disruption of the
community itself—beyond harm to any particular parcel or parcels of property near the proposed
mining—certainly constitutes a “very serious consequence.” I, like the majority, find no clear
error in the trial court’s individual findings of fact. But the trial court and the majority fail to
recognize that those facts constituted “very serious consequences.”
Each and every zoning case must be analyzed on its own unique facts, so I would not
hold anything more than that on the facts of this case, plaintiff here has failed to make the
requisite showing that there are no very serious consequences attendant to conducting gravel
mining on her property contrary to the township’s zoning plan. I am definitely and firmly
convinced that the trial court made a mistake in determining that plaintiff had shown that no very
serious consequences would ensue from her proposed gravel mining. MCR 2.613(C); Dep’t of
2
Plaintiff and her now-late husband owned the property at issue in the township during this time
and apparently did not seek to have it included in the gravel district until approximately eight
years after the district’s adoption. While not strictly relevant to the existence of “very serious
consequences,” this is illustrative of some of the ongoing uncertainty the gravel district was
intended to prevent.
-6-
Civil Rights ex rel Johnson v Silver Dollar Cafe, 441 Mich 110, 117; 490 NW2d 337 (1992). I
would therefore reverse the trial court’s order in plaintiff’s favor. In view of the result I would
reach, this Court would not need to determine whether plaintiff was entitled to costs as a
prevailing party.
I agree with the majority that the trial court’s refusal to impose sanctions should be
affirmed. I would reverse the trial court’s order permitting plaintiff to conduct gravel mining in
disregard of the zoning ordinance that the citizens of Kasson Township enacted to preserve their
community from what will, as the trial court found, now occur.
/s/ Alton T. Davis
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.