Last year the Michigan Supreme Court said townships can restrict where gravel pits are dug. Now some legislators are moving to take that zoning power away. Critics say they might do more than that. They warn it could also make it easier for energy companies to build large windmills.
Backlash over gravel pits
In Michigan, most rules about how land can be used are local, decided by cities and townships. Some land uses, like farming and drilling for oil and gas, cannot be restricted by local governments, at least not very much. Whether local planners should be allowed to restrict sand and gravel mining has been argued twice in front of the Michigan Supreme Court in the last three decades. In the more recent case the state’s highest court told Kasson Township in Leelanau County it was reasonable to limit where gravel pits are dug. That meant a woman just on the edge of the gravel district could not mine her property.
Now a bill moving through the Michigan Legislature would make clear that gravel mining cannot be prevented by a local ordinance. State Representative Wayne Schmidt from Traverse City voted for the bill last week when it passed committee. He says certain land uses should not be restricted by the whims of local planning boards.
“A lot of times it occurs when people are new to the area or are frustrated with some of the things going on,” says Schmidt.
Naturally, the Michigan Township Association opposes the bill since it reduces the authority of township governments. David Bertram directs the legislative work of the association. He told the committee there has to be a balance between the rights of property owners and their neighbors.
“You can’t possibly think because you bought five acres of land in a residential area that, because it’s sandy soil, you’re able to go start extracting it,” said Bertram.
MTA is also troubled that the language of the bill does not specifically mention gravel or sand. It says local ordinances will not prevent the extraction of “valuable natural resources.” Bertram says that could tie the hands of local governments that want to regulate other land uses, like where wind turbines are built.
“Our point is at a minimum if they are trying to talk about gravel then they need to refer to it as gravel or aggregate,” he says.
An alert from the Michigan Township Association caught the attention of a group in Benzie and Manistee Counties where Duke Energy is proposing to build more than 100 wind turbines between Arcadia and Frankfort. The group, Citizens for Responsible Wind Development, is fighting that project and a lot depends on what kinds of zoning rules the townships develop. The group sent out at least two emails urging members to contact their legislators.
But Scott Howard says there might not be much to worry about. Howard is a Traverse City attorney who specializes in municipal law. An attorney in his firm represented the property owner who sued Kasson Township. Howard sees two reasons why an energy company would be hard pressed to say this proposed law would apply to wind turbines. One is it mentions extraction, which implies something coming up out of the ground. And the legislation references a court decision that had to do with gravel mining.
“There’s no case that I’m aware of that extends that same doctrine to wind energy or extracting wind energy from the wind” says Howard. Whatever it means, the bill appears to be on a fast track. It was introduced last week but could see action in the full house this week. The Michigan Township Association thinks it could be on the governor’s desk by next week.
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