SUTTONS BAY — The poor quality of Michigan’s roads could benefit someone: Edith Kyser, a woman who wants to mine gravel on her property in Leelanau County’s Kasson Township.
But Kyser’s land lies outside the township’s gravel district, and years of legal battles landed in the Michigan Supreme Court in 2010, when the court ruled in favor of the township’s ability to enforce its zoning rules.
That solid legal ground shifted in 2011, when state legislators passed a law that said a person could challenge a zoning ordinance as long as they met certain requirements, notably a new requirement that there is a need for a natural resource on the property, either an owner need or by the market served by the person.
Kyser brought the issue to court again, and the need for new gravel on the market became the subject of a 13th Circuit Court hearing this week.
“It does use the word need, so that does mean there’s some level of necessity or advantage to having it,” 13th Circuit Court Judge Thomas Power said at the hearing. “It’s got to be more than merely that it can be extracted at a profit, because that would make the whole idea of need in the market redundant.”
Power will render a decision at a later date.
Sand and gravel mining has been a touchy subject for years in Kasson Township. In 1995, the township created a gravel district of more than 5 square miles to keep mining under control.
But in 2004, Kyser, whose land abuts the district, asked the township to rezone her property to allow gravel mining. Her request was denied, in part because the district originally was zoned to omit her property at the request of her late husband, said Kasson Township Supervisor Fred Lanham.
Lanham said the township’s ability to enforce its own rules is at stake in the case.
“We spent a lot of time putting the ordinance into place,” Lanham said. “If we let one thing go, we might as well throw the ordinance out.”
The township spent $244,942.87 on legal fees since the case started in 2004 through January this year, according to a document provided by Traci Cruz, the township clerk. About $97,000 of that was spent on litigation in response to the new law.
Lawyers from both sides argued over the need for gravel from Kyser’s property on Monday.
Christopher Bzdok of Olson, Bzdok & Howard, P.C., who represents Kyser, said gravel most often is used in construction and road work, projects driven by population and economic growth, as well as road conditions and funding.
“This is a low hurdle, it’s not a high hurdle,” Bzdok said. “You absolutely have to look at an area that’s growing and projected to grow; this is much more of an issue than an area that’s either not seeing growth or seeing reverse growth.”’
Bzdok said a combination of population growth and recovery from the recession would lead to a need for gravel, in no small part because many road and infrastructure projects had been delayed. He also said other companies in the gravel business are buying more property and raising prices.
Thomas Grier of Running, Wise & Ford, P.L.C., represents the township.
“The distinction between value and need are different,” Grier said. “Need is in the market, and the ability to sell a property that can be profitable does not necessarily equate to need in the market.”
Grier also noted that before the new law was enacted, a judge found there was no need for the gravel on the Kyser property.