Yesterday, the Michigan Supreme Court heard oral argument in Kyser v. Kasson Twp., No. 136680. The issue before the Court was whether to reaffirm its decision in Silva v. Ada Township, 416 Mich. 153 (1982), which applies a heightened standard of reasonableness to decisions of local municipalities that prevent mining of valuable mineral resources. Under Silva, a municipality’s decision will be deemed unreasonable if the plaintiff can show no very serious consequences would result from allowing the extraction of minerals. The Michigan Supreme Court has not revisited Silva, or the line of cases on which it was based, since Silva was decided in 1982.
The Court specifically requested the parties to address (1) whether Silva was superseded by the enactment of the Michigan Township Zoning Act of 1978 (recodified as the Michigan Zoning Enabling Act in 2006, MCL § 125.3101 et seq.), (2) whether the “no very serious consequences” rule violates separation of powers, and (3) whether the “no very serious consequences” rule impermissibly shifts the burden of proof onto the local government to defend its zoning policy.
Justice Corrigan initially focused the Court on the issue of whether Silva was superseded by the MZEA, which eventually led to Justice Markman’s question of whether Silva actually conflicted with the MZEA to begin with. That discussion brought to bear the defining difference in the parties’ views of Silva. Kasson Township contends that Silva is not a constitutional decision but rather a common law decision and therefore can be superseded by statute. Kyser, on the other hand, contends that the “no very serious consequences” rule is constitutional in nature and, as such, cannot be superseded by statute. In the end, Justices Markman (a constitutional law professor) and Young, who dominated the question and answer period, appeared primarily concerned with discerning the true nature of the “no very serious consequences rule,” and, if it is in fact constitutional, how Michigan’s constitution gave the Court power to apply greater scrutiny to zoning decisions affecting mineral interests. Chief Justice Kelly and Justices Cavanagh and Hathaway remained silent. Justice Weaver recused herself.
This author predicts that these last issues will be the first ones addressed in the Court’s opinion and that conclusions on those issues will be dispositive of all the other issues raised by the parties and the Court. However, if the Court splits along traditional partisan lines, it will result in a 3-3 tie with Justice Weaver recused, and Silva will remain the law of the land.
As a disclaimer, WNJ represented amicus curiae Michigan Aggregates Association in support of Kyser in this case. Prior postings on this case can be found here, and the order granting leave to appeal (after initially denying it) and defining the issues before the court can be found here.