Law professor helps township establish land use precedent

By Tom Kirvan

Legal News

 Kasson Township is located in the heart of Leelanau County, one of northern Michigan’s most scenic regions. The area is known for its magnificent lake views, cherry orchards, and carefree way of life. 

In fact, Leelanau owes its name to an Indian word meaning “delight of life.”
Yet, there is far more to Kasson Township than what meets the eye. Below its surface, figuratively speaking, is a gold mine in gravel.
“The township is heavily underlain with gravel and sand, with more than 50 percent of the township having soils suitable for gravel mining,” said Gerald Fisher, a professor at Cooley Law School in Auburn Hills.
The extent of mining in the region, and township attempts to effectively regulate its spread, eventually would draw Fisher into the constitutional depths of a long-running legal drama that fittingly was played out before the Michigan Supreme Court. 
For Fisher, widely regarded as one of the foremost authorities on land use and zoning law issues in the state, the legal result came in the form of a 4-2 victory at the Supreme Court, a decision announced July 15 in the case of Kyser v. Kasson Township. Fisher – who teaches property law, constitutional law, and municipal law at Cooley – served as lead counsel for Kasson Township in the Kyser case, successfully arguing that, “zoning is a legislative function, to be accorded meaningful deference by the judiciary.”
In an effort to regulate mining operations in Kasson Township and to stem the tide of costly legal battles, local officials followed the advice of the county planning director in the late 1990s, developing a “detailed master plan and zoning ordinance provisions for the establishment of a proactive gravel zoning district,” according to Fisher. The 3,100-acre district boundaries were drawn following a “soils and other land use analysis” and “extensive public hearings.”
The catalyst for the township’s action was a series of seven applications, from 1988-94, to amend its zoning ordinance to open up more land for gravel mining.
“In those instances in which the Township Board denied rezoning applications, the property owner would sue and prevail, and when the Township Board approved applications, the public would overturn the approval by referendum, to be followed by successful lawsuits by aggrieved rezoning applicants,” Fisher related. “This six-year period can be fairly characterized as a time of land use confusion, rampant litigation, and consequential anxiety in the township.”
The Kyser case, which began in 2003, centered on a property owner’s attempt to modify the boundaries of a gravel zoning district established by Kasson Township.  The rezoning application by plaintiff Kyser sought to include 115.6 acres of her adjoining property into the district so that she could sell the land to an undisclosed gravel operator. The township rejected her application for rezoning, reasoning in part that modifying the boundaries of the district would open the door to other requests, thereby defeating the purpose of the carefully created gravel
district.
The trial court found in favor of the plaintiff, ordering the legislatively-established zoning district boundaries adjusted to include her 115.6-acre parcel. The trial court judge reasoned that the state Supreme Court has “given special status in zoning disputes to mineral extraction operations.”
The trial court decision was upheld by the Michigan Court of Appeals by a 2-1 vote, setting the stage for an appeal to the state’s highest court. 
Professor Fisher, who has frequently argued cases at the state Supreme Court, was brought in by the township to serve as its lead counsel, working with the municipality’s attorneys, Richard Ford and Tom Grier. Amicus briefs in support of the township were filed by the American Planning Association, the Michigan Planning Associa-
tion, the Michigan Municipal League, the Michigan Town-
ships Association, and the State Bar Public Corporation Law Section.
The plaintiff was represented by the Traverse City law firm of Olson, Bzdok & Howard. Filing amicus briefs on the plaintiff’s behalf were the Michigan Aggregates Association, the Edward C. Levy Company, and Michigan Paving & Materials. Ironically, Jim Olson, one of the principals in the Traverse City firm, and Fisher have been friends since their undergraduate days at Michigan State University and have collaborated on several cases, including one that rose to the Supreme Court level. In the Kyser case, however, Fisher was pitted in oral arguments against another partner in the firm, Christopher Bzdok, who doubles as mayor of Traverse City.
Justice Stephen Markman wrote the majority decision, an opinion signed by Justices Maureen Corrigan, Robert Young, and Diane Hathaway. A dissenting opinion was written by Chief Justice Marilyn Kelly, joined by Justice Michael Cavanagh. Justice Elizabeth Weaver, a resident of the Traverse City area, excused herself from hearing the case.
In short, the Supreme Court determined that “it is not for the courts to make policy determinations that prefer one land use over others which have been established by local legislative bodies” and it is for municipalities “to determine the public interest and make critical value decisions in authorizing land uses and drawing zoning district boundary lines,” according to Fisher. 
Justice Markman wrote: “To assess the myriad factors that are relevant to land-use planning in hundreds of communities across the state requires a decision-making process for which the judicial branch is the least well-equipped among the branches of government.”
A full time professor at Cooley since 2004, Fisher headed the Municipal Practice Group at Secrest Wardle in Farmington Hills before joining the faculty at the Auburn Hills campus. Several of his students at Cooley were in attendance when he presented his oral argument to the Supreme Court in the Kyser case last November.
“Hopefully it served as a valuable teaching point for them on the many interesting legal aspects of this case,” Fisher said. “This really was a ‘due process’ case with important constitutional issues at stake.”
In summarizing the case, Fisher said “the principles that emerged from the Court’s analysis are that no individual land use may be afforded an elevated status over other land uses, and the indispensable proposition that local legislative bodies are to determine the ultimate vision for the community’s future. . . and this legislative exercise is not to be second-guessed by the judicial branch.”

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