Silva v. Ada Township

124 Mich. App. 77 (1983) 333 N.W.2d 584

SILVA
v.
ADA TOWNSHIP.

Docket No. 69155.

Michigan Court of Appeals.

Decided March 9, 1983.

Dilley & Dilley (by Robert W. Dilley), for plaintiffs.

Varnum, Riddering, Wierengo & Christenson (by Thomas J. Heiden), and Freihofer, Oosterhouse, Deboer & Barnhart (by Walter B. Freihofer), for defendants.

Before: ALLEN, P.J., and D.F. WALSH and BEASLEY, JJ.

ON REMAND

D.F. WALSH, J.

Plaintiffs brought this action to challenge the defendant township's zoning decision which prohibited the extraction of gravel on agriculturally zoned land. The circuit court ruled in favor of the defendants. On appeal, citing Certain-teed Products Corp v Paris Twp, 351 Mich. 434; 88 NW2d 705 (1958), plaintiffs argued that a landowner may not be deprived of his right to extract minerals from his property unless consequences of the most serious nature will result from the process of extraction.

In affirming the trial court we ruled that Certain-teed Products Corp, supra, was a "preferred use" case, see Bristow v City of Woodhaven, 35 Mich. App. 205; 192 NW2d 322 (1971), that the Supreme Court had expressly overruled the "preferred use" doctrine in Kropf v Sterling Heights, 391 Mich. 139; 215 NW2d 179 (1974), and that the appropriate standards for determining the constitutional validity of all municipal zoning ordinances are those expressed in Ed Zaagman, Inc v City of Kentwood, 406 Mich. 137, 153-154; 277 NW2d 475 (1979).

The Supreme Court reversed, reaffirming the rule of Certain-teed Products Corp, supra, "that zoning regulations which prevent the extraction of natural resources are invalid unless ``very serious consequences' will result from the proposed extraction". Silva v Ada Twp, 416 Mich. 153, 156; 330 NW2d 663 (1982). The case was remanded to us for application of that standard.

At the outset we note that in our original opinion we acknowledged that we found plaintiffs' arguments relating to the Certain-teed Products Corp standard persuasive. We declined to apply that standard, however, because we concluded that we were required to apply the Kropf-Zaagman standards. We have now again carefully reviewed the very comprehensive record. We are persuaded that the extensive proofs offered by the plaintiffs at trial established that there are valuable natural resources on the property sought to be rezoned and that no "very serious consequences" would result from their extraction.

The trial court is reversed. Defendant township is ordered to rezone the plaintiffs' property so as to permit the extraction of gravel subject to the conditions proposed by the plaintiffs in their second application for rezoning filed March 21, 1978.