Local zoning could be thrown back to the early 1980s if fast-moving state legislation is approved. Township and city control over anything defined as "natural resources" could be stripped away in Michigan, under House Bill 4746 and Senate Bill 470. The state House of Representatives is expected to vote on its version of the bill this week, perhaps as early as Tuesday.
The bill would amend the Michigan Zoning Enabling Act to say that "an ordinance shall not prevent the extraction of valuable natural resources from any property unless very serious consequences would result from the extraction of those natural resources."
It's not clear what the sponsors, Rep. Matt Huuki (R-Atlantic Mine) and Sen. Tom Casperson (R-Escanaba) intend with the bill, since the term "natural resources" is not defined. The bill states that its purpose is to put into law the 1982 Michigan Supreme Court decision in Silva vs. Ada Twp., which held that zoning ordinances that restrict natural resource mining are unreasonable, unless "very serious consequences" could be demonstrated.
The 1982 decision was overturned by the Michigan Supreme Court just under a year ago. Last July, in Kyser vs. Kasson Twp., the Court affirmed the right of a township to regulate some aspects of gravel mining, and in essence, other natural resource mining. It's unclear whether the House and Senate bills, if they became law, would survive any court tests, when judged against the spirit of the July 2010 decision.
The letter of the law appears to be a different matter, as the bills seemingly satisfy the constitutional and jurisdictional issues cited in the Kyser decision. Since the proposed law comes from the state legislature, rather than the state judiciary, it would avoid the separation-of-powers concern cited in Kyser. And since the legislation would insert language into the Zoning Enabling Act, deemed by the Michigan Supreme Court in July to be the chief law of the land concerning land use, it would be placed into the proper section of state code.
Huuki and Casperson were not immediately available for comment, but have previously expressed an interest in accessing natural gas deposits under Lake Michigan and on state land north of Gaylord, according to Keweenaw Now. At an April 23 gathering in Houghton, the two officials said that a variety of restrictions were in the way of access, and blamed the EPA for blocking access to nickel and copper mines north of Marquette.
HB 4746 and SB 470 were introduced in the House and Senate on Tuesday, June 14 and Wednesday, June 15, respectively. The House version was approved by the Natural Resources, Tourism and Outdoor Recreation Committee and sent to the floor of the House.
Ed. note (6/21/11, 7:22pm EDT): Jennifer Smeltzer, Legislative Director for Rep. Ray Franz (R-Onekama), told the Three Pines Gander late on Tuesday that the House would consider HB 4746 on Wednesday. According to the House schedule, session begins at 1:30pm and, through next week, could last longer than the typical 3-hour period. House members are planning to spend extra time on legislation before visiting their districts during July. Franz also issued the following statement:
"I thank everyone for the hundreds of e-mails and calls on HB 4746 I've been getting that reflect the same concerns I have with the bill. It's expected we will be taking up the legislation on Wednesday and so I'm working to closely define the scope of the bill in order for it to allow zoning regulations that encourage certain development and job creation. By clarifying the natural resources addressed in this legislation, we are able to encourage growth, maintain reasonable zoning and planning, protect private property rights, and address any possible unintended consequences."
Correction: June 21, 2011
An earlier version of this article has been revised to reflect the constitutional and jurisdictional issues cited in the Kyser vs. Kasson Twp. decision.
