With the introduction of House Bill (H.B.) 4746, the burden will now be on a township to prove that an aggregate production facility will impact the health and safety of a community before it can deny issuing a permit.
Named the “Michigan Zoning Enabling Act,” H.B. 4746 amends section 205 of pA 110 to reinstate the “no serious consequences” standard when a township considers an aggregate producer’s permit. This means that, unless the township can show that an aggregate production facility is going to impact the health and safety of the community, the permit has to be issued, according to the Michigan Aggregates Association (MAA).
However, the proposed legislation does not mean that anyone can just dig for natural resources anywhere they want, according to the association.
Additionally, a township may still impose the typical business restrictions under which aggregates facilities operate.
“The ‘no serious consequences standard’ worked for 80 years and should continue to be the standard,” MAA says.
The association has actively been working “to correct the decision” in Kyser vs. Kason Township through legislation. It has also been urging both its members and anyone else affiliated with the aggregates industry to contact their legislators about the decision.
“Don’t think it can’t happen to you,” MAA has cautioned. A township in Michigan’s Upper Peninsula recently shut down an aggregates producer — which left 30 employees jobless — and barred the operator from accessing existing inventory, using Kyser vs. Kasson as the precedent to shut down the facility.
H.B. 4746 states that “a county or township shall not regulate or control the drilling, completion, or operation of oil or gas wells or other wells drilled for oil or gas exploration purposes and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or abandonment of such wells.”
The bill would also protect producers against ordinances that would “prevent the extraction by mining of valuable natural resources from any property unless ‘very serious consequences’ would result from the extraction…” The proposed legislation would categorize natural resources as “valuable” if they are able to be extracted to generate revenue and operate at a profit.
If a zoning decision is challenged under the bill, the person or entity doing so would have the initial burden of showing there are valuable natural resources located on the relevant property and that there is a need for the natural resources by the person or in the market served by the person, and that serious consequences would not result from extracting or mining the natural resources.
Talking points for Kyser vs. Kason
• Aggregate producers employ more than 8,000 people statewide.
• The Michigan Supreme Court decision in Kyser vs. Kasson Township, threatens the very existence of the industry by eliminating the “very serious consequences” test.