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Opinion No. 5231

October 4, 1977


Natural River Act


Constitutionality of zoning provisions.

The zoning provisions of the Natural River Act are constitutional but may not be applied to an individual parcel in a manner which will deprive its owner of the use of his land.

Honorable Stanley Powell

State Representative

The Capitol

Lansing, Michigan 48901

You have requested my opinion concerning the constitutionality of the Natural River Act, 1970 PA 231; MCLA 281.761 et seq; MSA 11.501 et seq, hereafter referred to as 'the Act', as it relates to the authority of the Natural Resources Commission to acquire lands or an interest in lands adjacent to a designated natural river and control and regulate the use of such land.

Before addressing your question directly, it will be helpful to delineate briefly the substance of the Act.

The purposes of the Act are, to a considerable extent, described in section 3. This section provides that the Natural Resources Commission may designate a river, or a portion thereof, as a natural river area to preserve its fish and wild life and to enhance its values for water conservation, fishing, boating, scenic, ecological, historical and recreational uses. When the Commission has designated a natural river area, it is required to adopt a long-range comprehensive plan setting forth the proposed uses of the lands and waters. State land within the area is to be administered and managed in accordance with this plan. The Commission is also required to publicize and inform private and public landowners of the purposes of the plan and to encourage their cooperation in the management and use of the land.

Although section 5 of the Act provides that the Commission may acquire lands or an interest in lands adjacent to a designated natural river, it further provides that lands or an interest in lands may only be acquired with the consent of the owner; thus the Commission may not condemn lands under the Act. Also, pursuant to Section 6(2), the Commission may enter into a lease or agreement with any person or political subdivision to administer their lands in a natural river area.

Section 8 of the Act authorizes the Commission to control the use of land as part of the comprehensive plan by adoption of zoning rules. This section exempts land along a river within the limits of an incorporated municipality from such zoning controls but the Commission is required to encourage county and township governments to establish their own zoning controls. If a county or township fails to adopt zoning ordinances which further the natural river comprehensive plan, the Commission may, within one year after notifying the county or township, promulgate a zoning rule covering areas which are not governed by a county or township ordinance.

Because Sections 10 and 16 bear directly on the question you have raised, they are quoted verbatim. These sections provides:

'Sec. 10. The ordinance or rule shall establish zoning districts within which such uses of land as for agriculture, forestry, recreation, residence, industry, commerce and additional uses may be encouraged, regulated or prohibited. It may limit or prohibit the placement of structures of any class or designate their location with relation to the water's edge, to property or subdivision lines and to flood flows and may limit the subdivision of lands for platting purposes. It may control the location and design of highways and roads and of public utility transmission and distribution lines except on lands or other interests in real property owned by the utility on January 1, 1971. It may prohibit or limit the cutting of trees or other vegetation but such limits shall not apply for a distance of more than 100 feet from the river's edge. It may specifically prohibit or limit mining and drilling for oil and gas but such limits shall not apply for a distance of more than 300 feet from the river's edge. It may contain other provisions necessary to accomplish the objectives of this act. A zoning rule promulgated by the commission shall not control lands more than 400 feet from the river's edge.'

'Sec. 16. This act may not be construed to prohibit a reasonable and lawful use of any other natural resource which will benefit the general welfare of the people of this state and which is not inconsistent with the purpose of this act.'

From this description of the method that the legislature has selected for accomplishing the purposes of the Natural River Act, it may be seen that the Commission has essentially two means of implementation. The first of these methods is by acquisition of a proprietary interest which will give the Commission control over the use of the land and the second is by promulgation of a zoning rule which limits the right of the property owner to use his land in any way which will subvert the comprehensive plan.

As to the first of these methods, it is clear that the Act does not violate any constitutional protection of property rights. As noted above, Section 5 authorizes the Commission to acquire lands or interest in lands adjacent to the natural river area, but the section further provides that this may be done only with the consent of the owner. It is, therefore, clear that the owner's constitutional rights are not taken without due process of law.

As to the second of these methods of implementing the natural river plan, there is little doubt that the legislature may delegate to an agency the authority to adopt a zoning rule which limits the right of a property owner to use his property, although there are limitations on this power which will be discussed below.

Despite the fact that the zoning power is normally exercised by local governmental units, it is the legislature that delegates this power to the local governments by enactment of enabling statutes (1). As noted in Detroit Osteopathic Hospital Co v The City of Southfield, 377 Mich 128, 132; 139; NW2d 728, 729 (1966), Michigan cities have no inherent power in the field of zoning; their authority is granted to them by constitution or legislative act.

Because the essence of a zoning ordinance is to limit the right of an owner of property to use the property in a manner which will produce the greatest benefit to him, there may be a tendency to consider this limitation as a taking of property without due process. The courts, however, have recognized that the police power of the State may take precedence over the right of a property owner to use his property. For example, in Austin v Older, 283 Mich 667, 674; 278 NW 727, 730 (1938), the court stated:

'It is elementary that every intendment is in favor of the constitutionality of an ordinance and plaintiff has the burden of showing that it has not real or substantial relation to public health, morals, safety or general welfare. Zoning ordinances are constitutional in principle as a valid exercise of the police power. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (47 Sup.Ct. 114, 54 A.L.R. 1016); City of Lansing v. Dawley, 247 Mich. 394; City of Pleasant Ridge v. Cooper, 267 Mich. 603. Furthermore, the power to zone is not limited to a protection of the status quo, and the city may validly plan its future development. . . .'

There are, however, limits to the power of the legislature and these are described in Kropf v City of Sterling Heights, 391 Mich 139, 157-158; 215 NW2d 179, 186 (1974), in which the court stated:

'A plaintiff-citizen may be denied substantive due process by the city or municipality by the enactment of legislation, in this case a zoning ordinance, which has, in the final analysis, no reasonable basis for its very existence. The power of the city to enact ordinances is not absolute. It has been given power by the State of Michigan to zone and regulate land use within its boundaries so that the inherent police powers of the state may be more effectively implemented on the local level. But the state cannot confer upon the local unit of government that which it does not have. For the state itself to legislate in a manner that affects the individual right of its citizens, the state must show that it has a sufficient interest in protecting or implementing the common good, via its police powers, that such private interests must give way to this higher interest. Different degrees of state interest are required by the courts, depending upon the type of private interest which is being curtailed. When First Amendment rights are being restricted we require the state to justify its legislation by a 'compelling' state interest. With regard to zoning ordinances, we only ask that they be 'reasonable'. And, as we have stated, they are presumed to be so until the plaintiff shows differently.

'In looking at this 'reasonableness' requirement for a zoning ordinance, this Court will bear in mind that a challenge on due process grounds contains a two-fold argument; first, that there is no reasonable governmental interest being advanced by the present zoning classification itself, . . . or secondly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question. Though each of those arguments are founded upon due process, is reality they are distinct arguments, each requiring different proofs.' [Emphasis added]

See also Fass v City of Highland Park, 321 Mich 156, 161; 32 NW2d 375, 377 (1948).

Thus, despite the presumption of constitutionality, a zoning ordinance which renders property almost worthless constitutes an unconstitutional taking of private property without due process. Grand Trunk Western RR Co v City of Detroit, 326 Mich 387; 40 NW2d 195 (1949).

Applying these rules to the Natural River Act, Section 10 provides that a zoning rule of the Natural Resources Commission shall establish zoning districts within which such uses of land as agricultural, forestry, recreation, residence, industry, commerce, and others may be regulated or prohibited. Giving this provision a constitutional construction, I do not read it as authorizing the Commission to prohibit any use of the property by the property owner. I construe this provision as authorization to limit any one or more of the land uses listed but not all of them for a given parcel for this would, in effect, leave the owner without any benefit from his ownership of the land. This construction is supported by Section 16 of the Act, quoted above, which prohibits any construction which would prevent a reasonable and lawful use of a beneficial natural resource which will benefit the general welfare of the people.

In summary, it is my opinion that the zoning provisions of the Natural River Act are constitutional but that it may not be applied to an individual parcel in a manner which will deprive its owner of the use of his land.

Frank J. Kelley

Attorney General

(1) See 1943 PA 183; MCLA 125.201 et seq; MSA 5.2961(1) et seq [county zoning]; 1943 PA 184; MCLA 125.271 et seq; MSA 5.2963-(1) et seq [township zoning]; 1921 PA 207; MCLA 125.581 et seq; MSA 5.2931 et seq [city and village zoning].