As we noted last week, on April 3, 2009, the Michigan Supreme Court vacated its order denying leave to appeal in Kyser v. Kasson Township, Case No. 272516. Such an order is exceedingly rare. The application remains pending.
In Kyser, the plaintiff challenges a Kasson Township ordinance prohibiting gravel mining on her property. The trial court held the ordinance invalid and entered an order allowing Kyser to mine gravel. A divided Court of Appeals affirmed. The Court of Appeals opinions may be found here and here. On appeal, Kasson Township challenges the trial court's application of the very-serious-consequences standard, which currently governs zoning regulations prohibiting natural resource extraction. The standard allows a plaintiff to defeat a zoning ordinance where the plaintiff can show that “there are valuable natural resources located on the land . . . [and] no ‘very serious consequences’ would result from the extraction of the resources.” Kasson Township argues that the trial court failed to give proper consideration to the effect of Kyser's proposed use on the township's overall zoning plan and, generally, that the trial court's findings of fact were clearly erroneous. Several groups have filed amici curiae briefs, including the State Bar's Public Corporation Law Section, the American Planning Association, the Michigan Association of Planning, the Michigan Townships Association, and the Michigan Aggregates Association. Disclaimer, WNJ filed an amicus brief on behalf of the Michigan Aggregates Association opposing leave.