Locals to Face Tough Hurdles When Dealing With Natural Resources Mining

The Senate and House this week finalized HB 4746. This bill overturns local control for any extraction and mining of natural resources.  The bill as introduced simply codified the Silva case of the Michigan Supreme Court.  That case was overturned in 2011 (in Kassan vs. Kaiser Twp), and this legislation was intended to go back to that standard.

While the League and MTA and MAC were able to negotiate with the Aggregate industry and get some good language in the bill, the mining industry came in at the last minute and reversed much of the progress.  The bill states that ordinances cannot prevent the extraction, by mining, of valuable natural resources from any property unless very serious consequences would result from the extraction. Natural resources are considered valuable if a person can receive revenue and reasonably expect to operate at a profit.  The burden of challenging a zoning decision is on the person challenging that decision (which is good!) Determining whether there is a very serious consequence will be based on the standards from the Silva case.

The language as negotiated included factors that had to be considered, including: relationahiop of extraction and activities with existing land uses, impact on existing land uses in the vicinity of the property, impact on property values in the vicinity and the proposed hauling route, impact on pedestrian and traffic safety, impact on other identifiable health, safety, and welfare interests in the commuity, overall public interest i th eextraction of the natural resource.  These were all good things for communities and citizens. Unfortunately, the Senate watered this down upon request by the mininig industry by changing these conditions from mandatory to optional.

Finally, a section is included that specifies that the bill does not limit the local unit of government's reasonable regulation of hours of operation, blasting hours, noise levels, dust control measures, and traffic.  This language was also weakened by the mining industry at the last minute, though when they had language added that specifically says that this regulation has to be reasonable in accomodating customary mining operations.

The “no serious consequences” rule as passed by the Supreme Court in Silva in 1982 created problems for locals because it not only placed the burden on the local officials and community, but it also created a rule that had no basis in law.  As such, many lawsuits resulted and different judges ruled differently based on their interpretation of what “no serious consequences” are.  The Kassan case in 2010 overturned this and said that according to state law (the exclusionary zoning part of the zoning enabling act), the person/company mining the gravel must to prove that there are “no serious consequences.”  While the League pushed for creating standards, the mining industry amendments will only serve to land many of these cases in the courts and cause locals to pay more for litigation.  As such, the League remained opposed to the bill.

Andy Schor is the Assistant Director of State Affairs for the Michigan Municipal League. Contact him at (517) 908-0300 or by email at aschor@mml.org.