Bill Text: MI HB5647 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Natural resources; sand dunes; process for designating critical dunes; modify, and provide development eligibility for certain privately owned land. Amends secs. 35301, 35302, 35304, 35305, 35306, 35310, 35311, 35312, 35313, 35316, 35317, 35319, 35320, 35321, 35322 & 35323 of 1994 PA 451 (MCL 324.35301 et seq.); adds secs. 35311a & 35311b & repeals sec. 35326 of 1994 PA 451 (MCL 324.35326).

Spectrum: Partisan Bill (Republican 21-0)

Status: (Introduced - Dead) 2012-05-22 - Printed Bill Filed 05/18/2012 [HB5647 Detail]

Download: Michigan-2011-HB5647-Introduced.html

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HOUSE BILL No. 5647

 

 

May 17, 2012, Introduced by Reps. Bumstead, Genetski, Wayne Schmidt, Pscholka, Haveman, Foster, O'Brien, MacMaster, Franz, Tyler, Pettalia, McBroom, Rendon, McMillin, Moss, Goike, Damrow, Lyons, Potvin, Huuki and Agema and referred to the Committee on Natural Resources, Tourism, and Outdoor Recreation.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 35301, 35302, 35304, 35305, 35306, 35310,

 

35311, 35312, 35313, 35316, 35317, 35319, 35320, 35321, 35322, and

 

35323 (MCL 324.35301, 324.35302, 324.35304, 324.35305, 324.35306,

 

324.35310, 324.35311, 324.35312, 324.35313, 324.35316, 324.35317,

 

324.35319, 324.35320, 324.35321, 324.35322, and 324.35323),

 

sections 35301, 35316, and 35317 as amended by 1995 PA 262,

 

sections 35302, 35305, 35306, 35310, 35311, 35312, 35313, 35319,

 

35320, 35321, 35322, and 35323 as added by 1995 PA 59, and section

 

35304 as amended by 2004 PA 325, and by adding sections 35311a and

 

35311b; and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 35301. As used in this part:

 

     (a) "Contour change" includes any grading, filling, digging,

 

or excavating that significantly alters the physical characteristic

 

of a critical dune area, except that which is involved in sand dune

 

mining as defined in part 637.

 

     (b) "Crest" means the line at which the first lakeward facing

 

slope of a critical dune ridge breaks to a slope of less than 1-

 

foot vertical rise in a 5-1/2-foot horizontal plane for a distance

 

of at least 20 feet, if the areal extent where this break occurs is

 

greater than 1/10 acre in size.

 

     (c) "Critical dune area" means a geographic area designated in

 

the "atlas of critical dune areas" dated February 1989 that was

 

prepared by the department of natural resources.

 

     (d) "Department" means the department of environmental

 

quality.

 

     (e) "Foredune" means 1 or more low linear dune ridges that are

 

parallel and adjacent to the shoreline of a Great Lake and are

 

rarely greater than 20 feet in height. The lakeward face of a

 

foredune is often gently sloping and may be vegetated with dune

 

grasses and low shrub vegetation or may have an exposed sand face.

 

     (f) "Model zoning plan" means the model zoning plan provided

 

for in sections 35312 35304 to 35309 and 35311a to 35324.

 

     (g) "Permit" means a permit for a use within a critical dune

 

area under this part.

 

     (h) (g) "Planning commission" means the body or entity within

 

a local government that is responsible for zoning and land use

 

planning for the local unit of government.

 

     (i) (h) "Restabilization" means restoration of the natural

 

contours of a critical dune to the extent practicable, and the

 

restoration of the protective vegetative cover of a critical dune

 

through the establishment of indigenous vegetation, and the

 

placement of snow fencing or other temporary sand trapping measures

 

for the purpose of preventing erosion, drifting, and slumping of

 

sand.

 

     (j) (i) "Special use project" means any of the following:

 

     (i) A proposed use in a critical dune area for an industrial or

 

commercial purpose regardless of the size of the site.

 

     (ii) A multifamily use of more than 3 acres.

 

     (iii) A multifamily use of 3 acres or less if the density of use

 

is greater than 4 individual residences per acre.

 

     (iv) A proposed use in a critical dune area, regardless of size

 

of the use, that the planning commission, or the department if a

 

local unit of government does not have an approved zoning

 

ordinance, determines would damage or destroy features of

 

archaeological or historical significance.

 

     (k) (j) "Use" means a developmental, silvicultural, or

 

recreational activity done or caused to be done by a person that

 

significantly alters the physical characteristic of a critical dune

 

area or a contour change done or caused to be done by a person. Use

 

does not include sand dune mining as defined in part 637.

 

     (l) (k) "Zoning ordinance" means an ordinance of a local unit

 

of government that regulates the development of critical dune areas

 

within the local unit of government pursuant to the requirements of

 

this part.

 

     Sec. 35302. The legislature finds that:

 

     (a) The critical dune areas of this state are a unique,

 

irreplaceable, and fragile resource that provide significant

 

recreational, economic, scientific, geological, scenic, botanical,

 

educational, agricultural, and ecological benefits to the people of

 

this state and to people from other states and countries who visit

 

this resource.

 

     (b) Local units of government should have the opportunity to

 

exercise the primary role in protecting and managing critical dune

 

areas in accordance with this part.

 

     (c) The benefits derived from alteration, industrial,

 

residential, commercial, agricultural, silvicultural, and the

 

recreational use of critical dune areas shall occur only when the

 

protection of the environment and the ecology of the critical dune

 

areas for the benefit of the present and future generations is

 

assured.

 

     (b) The purpose of this part is to balance the benefits of

 

protecting, preserving, restoring, and enhancing the diversity,

 

quality, functions, and values of the state's critical dunes with

 

the benefits of economic development and multiple human uses of the

 

critical dunes and the benefits of public access to and enjoyment

 

of the critical dunes. To accomplish this purpose, this part is

 

intended to do all of the following:

 

     (i) Ensure and enhance the diversity, quality, functions, and

 

values of the critical dunes in a manner that is compatible with

 

private property rights.

 

     (ii) Ensure sound management of all critical dunes by allowing

 

for compatible economic development and multiple human uses of the

 

critical dunes.

 

     (iii) Coordinate and streamline governmental decision-making

 

affecting critical dunes through the use of the most comprehensive,

 

accurate, and reliable information and scientific data available.

 

     Sec. 35304. (1) A person shall not initiate a use within a

 

critical dune area unless the person obtains a permit from the

 

local unit of government that issues permits in which the critical

 

dune area is located or the department if it the department issues

 

permits as provided under subsection (5) shall issue the permits

 

subject to (7). A permit for a use within a critical dune area is

 

subject to all of the following: requirements:

 

     (a) A person proposing a use within a critical dune area shall

 

file an application with the local unit of government, or with the

 

department if the department is issuing permits under the model

 

zoning plan. The application form shall include information that

 

may be necessary to conform with the requirements of this part. If

 

a project proposes the use of more than 1 critical dune area

 

location within a local unit of government, 1 application may be

 

filed for the uses.

 

     (b) Notice The local unit of government shall provide notice

 

of an application filed under this section shall be sent to a each

 

person who makes a written request to the local unit of government

 

for notification of pending applications. accompanied by The local

 

unit of government may charge an annual fee established by the

 

local unit of government for providing this notice. The local unit

 

of government shall prepare a monthly list of the applications made

 

during the previous month and shall promptly mail provide copies of

 

the list for the remainder of the calendar year to the persons who

 

have requested notice. In addition, if the department issues

 

permits under this part within a local unit of government, notice

 

of an application shall also be given to the local conservation

 

district office, the county clerk, the county health department,

 

and the local unit of government in which the property is located.

 

The monthly list shall state the name and address of each

 

applicant, the location of the applicant's project, and a summary

 

statement of the purpose of the use. The local unit of government

 

may hold a public hearing on pending applications.

 

     (c) The notice shall state that unless a written request is

 

filed with the local unit of government within 20 days after the

 

notice is mailed sent, the local unit of government may grant the

 

application without a public hearing. Upon the written request of 2

 

5 or more persons that who own real property within the local unit

 

of government or an adjacent local unit of government, or that

 

reside within the local unit of government or an adjacent local

 

unit of government 1 mile of the project, the local unit of

 

government shall hold a public hearing pertaining to a permit

 

application.

 

     (d) At least 10 days' notice of a hearing to be held pursuant

 

to this section shall be given by publication in 1 or more

 

newspapers of general circulation in the county in which the

 

proposed use is to be located, and in other publications, if

 

appropriate, to give notice to persons likely to be affected by the

 

proposed use, and by mailing copies of the providing notice to the

 

persons who have requested notice pursuant to subsection (1)

 

subdivision (b) and to the person requesting the hearing.

 

     (e) After the filing of an application, the local unit of

 

government shall grant or deny the permit within 60 days, or within

 

90 days if a public hearing is held. When If a permit is denied,

 

the local unit of government shall provide to the applicant a

 

concise written statement of its reasons for denial of the permit,

 

and if it appears that a minor modification of the application

 

would result in the granting of the permit, the nature of the

 

modification shall be stated. In an emergency, the local unit of

 

government may issue a conditional permit before the expiration of

 

the 20-day period referred to in subdivision (c).

 

     (f) The local unit of government shall base a decision to

 

grant or deny a permit required by under this section on the model

 

zoning plan or on any existing ordinance that is in effect in the

 

local unit of government that provides the same or a greater a

 

substantially equivalent level of protection for critical dune

 

areas and that is approved by the department.

 

     (g) Subject to section 35316, a permit shall be approved

 

unless the local unit of government or the department determines

 

that it is more likely than not that the actual harm to the

 

environment resulting from the use will significantly damage the

 

public interest on the privately owned land, or, if the land is

 

publicly owned, the public interest in the publicly owned land, by

 

significant and unreasonable depletion or degradation of any of the

 

following:

 

     (i) The diversity of the critical dune areas within the local

 

unit of government.

 

     (ii) The quality of the critical dune areas within the local

 

unit of government.

 

     (iii) The functions of the critical dune areas within the local

 

unit of government.

 

     (2) A local unit of government zoning ordinance regulating

 

critical dune areas may be more restrictive of development and more

 

protective of critical dune areas than the model zoning plan.

 

     (2) The decision of the local unit of government or the

 

department with respect to a permit shall be in writing and shall

 

be based upon evidence that would meet the standards in section 75

 

of the administrative procedures act of 1969, 1969 PA 306, MCL

 

24.275. A decision denying a permit shall document, and any review

 

upholding the decision shall determine, all of the following:

 

     (a) That the local unit of government or the department has

 

met the burden of proof under subsection (1).

 

     (b) That the decision is based upon sufficient facts or data.

 

     (c) That the decision is the product of reliable scientific

 

principles and methods.

 

     (d) That the decision has applied the principles and methods

 

reliably to the facts.

 

     (e) That the facts or data upon which the decision is based

 

are recorded in the file.

 

     (3) A permit shall not be granted that authorizes construction

 

of a dwelling or other permanent building on the first lakeward

 

facing slope of a critical dune area or foredune except on a lot of

 

record that was recorded prior to July 5, 1989 that does not have

 

sufficient buildable area landward of the crest to construct the

 

dwelling or other permanent use as proposed by the applicant. The

 

proposed construction, to the greatest extent possible, shall be

 

placed landward of the crest. The portion of the development that

 

is lakeward of the crest shall be placed in the location that has

 

the least impact on the critical dune area.

 

     (4) Except as provided in subsection (3), a permit shall

 

provide that a use that is a structure shall be constructed behind

 

the crest of the first landward ridge of a critical dune area that

 

is not a foredune. However, if construction occurs within 100 feet

 

measured landward from the crest of the first landward ridge that

 

is not a foredune, the use shall meet all of the following

 

requirements:

 

     (a) The structure and access to the structure shall be in

 

accordance with plans prepared for the site by a registered

 

professional architect or a licensed professional engineer and the

 

plans shall provide for the disposal of storm waters without

 

serious soil erosion and without sedimentation of any stream or

 

other body of water.

 

     (b) Access to the structure shall be from the landward side of

 

the dune.

 

     (c) The dune shall be restabilized with indigenous vegetation.

 

     (d) The crest of the dune shall not be reduced in elevation.

 

     (5) (3) As soon as possible following adoption of a zoning

 

ordinance enacted pursuant to this part, the local unit of

 

government shall submit to the department a copy of the ordinance

 

that it determines meets the requirements of this part. If the

 

local unit of government has an existing ordinance that it contends

 

is at least as restrictive as substantially equivalent to the model

 

zoning plan, that ordinance may be submitted to the department at

 

any time. The department shall review zoning ordinances submitted

 

under this section to assure compliance with this part. If the

 

department finds that an ordinance is not in compliance with this

 

part, the department shall work with the local unit of government

 

to bring the ordinance into compliance and inform the local unit of

 

the failure to comply and in what ways the submitted ordinance is

 

deficient. Unless a local unit of government receives notice,

 

within 90 180 days of after submittal that of the ordinance they

 

submit to the department under this subsection, that the ordinance

 

is not in compliance with this part, the local unit of government

 

ordinance shall be considered to be approved by the department.

 

     (6) (4) A local unit of government may adopt, submit to the

 

department, and obtain approval of a zoning ordinance based on the

 

model zoning plan or an equivalent ordinance as provided in this

 

section by June 30, 1990. If a local unit does not have an approved

 

ordinance by June 30, 1990, the department shall implement the

 

model zoning plan for that local unit of government in the same

 

manner and under the same circumstances as provided in subsection

 

(1). Notwithstanding any other provision of this part, a local unit

 

of government may adopt a zoning ordinance at any time, and upon

 

the approval of the department, that ordinance shall take the place

 

of the model zoning plan implemented by the department.

 

     (7) (5) If a local unit of government in which a proposed use

 

is to be located does not elect to issue permits or does not

 

receive department approval of a zoning ordinance that regulates

 

critical dune areas, the department shall implement the model

 

zoning plan in the place of the local unit of government and issue

 

special exceptions in the same circumstances as provided in this

 

part for the issuance of variances by local units of government,

 

and issue permits pursuant to subsection (1) and part 13.

 

     (8) (6) The department shall assist local units of government

 

in developing ordinances that meet the requirements of this part.

 

     Sec. 35305. (1) If a person an applicant for a permit or a

 

special exception or the owner of the property immediately adjacent

 

to the proposed use is aggrieved by a decision of the department in

 

regard to the issuance or denial of a permit or special exception

 

under this part, the person applicant or owner may request a formal

 

hearing on the matter involved. The hearing shall be conducted by

 

the department as a contested case hearing in the manner provided

 

for in the administrative procedures act of 1969, Act No. 306 of

 

the Public Acts of 1969, being sections 24.201 to 24.328 of the

 

Michigan Compiled Laws.1969 PA 306, MCL 24.201 to 24.328.

 

     (2) Following the hearing provided for under subsection (1), a

 

decision of the department in regard to the issuance or denial of a

 

permit or special exception under this part is subject to judicial

 

review as provided for in Act No. 306 of the Public Acts of

 

1969.the administrative procedures act of 1969, 1969 PA 306, MCL

 

24.201 to 24.328.

 

     Sec. 35306. (1) The lawful use of land or a structure, as

 

existing and lawful within a critical dune area at the time the

 

department implements the model zoning plan for a local unit of

 

government, may be continued although the use of that land or

 

structure does not conform to the model zoning plan. The

 

continuance, completion, restoration, reconstruction, extension, or

 

substitution of existing nonconforming uses of land or a structure

 

may continue upon reasonable terms that are consistent, to the

 

extent possible, with the applicable zoning provisions of the local

 

unit of government in which the use is located.

 

     (2) The lawful use of land or a structure, as existing and

 

lawful within a local unit of government that has a zoning

 

ordinance approved by the department, may, but is not required by

 

this part to, be continued subject to the law pertaining to

 

existing uses within the act that enables that local unit of

 

government to zone and the applicable zoning provisions of the

 

local unit of government.

 

     (3) A use needed to obtain or maintain a permit or license

 

that is required by law to continue operating an electric utility

 

generating facility that is in existence on July 5, 1989 shall not

 

be precluded under this part.

 

     (4) A use needed to maintain, repair, or replace existing

 

utility lines, pipelines, or other utility facilities within a

 

critical dune area that were in existence on July 5, 1989, or were

 

constructed in accordance with a permit under this part, is exempt

 

for purposes for which the permit was issued from the operation of

 

this part or a local ordinance approved under this part if the

 

maintenance, repair, or replacement is completed in compliance with

 

all of the following:

 

     (a) Vehicles shall not be driven on slopes greater than 1-foot

 

vertical rise in a 3-foot horizontal plane.

 

     (b) All disturbed areas shall be immediately stabilized and

 

revegetated with native vegetation following completion of work to

 

prevent erosion.

 

     (c) Any removal of woody vegetation shall be done in a manner

 

to assure that any adverse effect on the dune will be minimized and

 

will not significantly alter the physical characteristics or

 

stability of the dune.

 

     (d) To accomplish replacement of a utility pole, the new pole

 

shall be placed adjacent to the existing pole, and the existing

 

pole shall be removed by cutting at ground level.

 

     (e) In the case of repair of underground utility wires, the

 

repair shall be limited to the minimal excavation necessary to

 

replace the wires by plowing, small trench excavation, or

 

directional boring. Replacement of wires on slopes steeper than 1-

 

foot vertical rise in a 4-foot horizontal plane shall be limited to

 

installation by plowing or directional boring only.

 

     (f) In the case of repair or replacement of underground

 

pipelines, directional boring shall be utilized, and if excavation

 

is necessary to access and bore the pipeline, the excavation area

 

shall be located on slopes 1-foot vertical rise in a 4-foot

 

horizontal plane or less.

 

     (5) (4) Uses that have received all necessary permits from the

 

state or the local unit of government in which the proposed use is

 

located by July 5, 1989, are exempt for purposes for which a permit

 

is issued from the operation of this part or local ordinances

 

approved under this part. Such uses shall be regulated pursuant to

 

local ordinances in effect by that date.

 

     Sec. 35310. (1) If the department finds that a person is not

 

in compliance with the model zoning plan if the department is

 

implementing the plan, or if the department is involved in the

 

modification or reversal of a decision regarding a special use

 

project as provided in section 35322, the department may suspend or

 

revoke the permit.

 

     (2) At the request of the department, or a person, the

 

attorney general may institute an action for a restraining order or

 

injunction or other appropriate remedy to prevent or preclude a

 

violation of the model zoning plan if the department is

 

implementing the provisions of the plan or if the department is

 

involved in the modification or reversal of a decision regarding a

 

special use project as provided in section 35322. At the request of

 

a member of the governing body of a local unit of government, or a

 

person, the county prosecutor may institute an action for a

 

restraining order or injunction or other proper remedy to prevent a

 

violation of a zoning ordinance approved under this part. This

 

shall be in addition to the rights provided in part 17, and as

 

otherwise provided by law. An action under this subsection

 

instituted by the attorney general may be instituted in the circuit

 

court for the county of Ingham or in the county in which the

 

defendant is located, resides, or is doing business.

 

     (3) The department shall periodically review the performance

 

of all local units of government that have ordinances approved

 

under this part. If the department determines that the local unit

 

of government is not administering the ordinance in conformance

 

with this part, the department shall notify the local unit of

 

government in writing of its determination, including specific

 

reasons why the local unit of government is not in compliance. The

 

local unit of government has 30 days to respond to the department.

 

If the department determines that the local unit of government has

 

not made sufficient changes to its ordinance administration or

 

otherwise explained its actions, the department may withdraw the

 

approval of the local ordinance and implement the model zoning plan

 

within that local unit of government. If a local unit disagrees

 

with an action of the department to withdraw approval of the local

 

ordinance, it may appeal that action pursuant to the administrative

 

procedures act of 1969, Act No. 306 of the Public Acts of 1969,

 

being sections 24.201 to 24.328 of the Michigan Compiled Laws 1969

 

PA 306, MCL 24.201 to 24.328, in the manner provided in that act

 

for contested cases.

 

     (4) In addition to any other relief provided by this section,

 

the court may impose on a person who violates this part, or a

 

permit, a civil fine of not more than $5,000.00 for each day of

 

violation, or may order a violator to pay the full cost of

 

restabilization of a critical dune area or other natural resource

 

that is damaged or destroyed as a result of a violation, or both.

 

     (5) A person who violates this part, or a person who violates

 

a permit issued under this part, is guilty of a misdemeanor,

 

punishable by a fine of not more than $5,000.00 per day for each

 

day of violation.

 

     Sec. 35311. By May 23, 1995, Beginning with the effective date

 

of the 2012 act that amended this section and once every 10 years

 

thereafter, the department shall appoint a team of qualified

 

ecologists, who may be employed by the department or may be persons

 

with whom the department enters into contracts, who shall to review

 

"the atlas of critical dune areas" dated February 1989. The review

 

team shall evaluate the accuracy of the designations of critical

 

dune areas within the atlas and shall recommend to the legislature

 

any changes to the atlas or underlying criteria revisions to the

 

atlas that would provide more precise protection to the targeted

 

resource. In addition, the review team shall recommend whether the

 

slope criteria in section 35330(1)(a) and (b) are appropriate and

 

supported by the best available technical data and whether

 

stairways and driveways in critical dune areas should be subject to

 

the same criteria as other constructed uses.

 

     Sec. 35311a. (1) Notwithstanding section 35316 or any other

 

provision of this part, the construction, improvement, and

 

maintenance of a driveway shall be permitted for any dwelling or

 

other permanent building allowed in a critical dune area, including

 

a dwelling or other permanent building approved under this part or

 

a lawful nonconforming use, subject only to applicable permit

 

requirements under sections 35312 through 35325 and the following:

 

     (a) A driveway shall be permitted either to the principal

 

building or, in the sole discretion of the applicant to an

 

accessory building, under the provisions of this section.

 

Additional driveways, if any, shall meet the applicable

 

requirements for any other use under this part. The development of

 

a plan for a driveway should include consideration of the use of

 

retaining walls, bridges, or similar measures, if feasible, to

 

minimize the impact of the driveway, parking, and turnaround areas,

 

and the consideration of alternative locations on the same lot of

 

record.

 

     (b) Driveways on slopes steeper than a 1-foot vertical rise in

 

a 4-foot horizontal plane, but not steeper than a 1-foot rise in a

 

3-foot horizontal plane, shall be in accordance with plans

 

submitted with the permit application and prepared for the site by

 

a registered professional architect or licensed professional

 

engineer. The plans shall include (i) storm water drainage that

 

provides for disposal of storm water without serious erosion, (ii)

 

methods for controlling erosion from wind and water, and (iii)

 

restabilization, by design elements including vegetation, cut-and-

 

fill, bridges, traverses, and such other elements as are required

 

in the judgment of the architect or engineer to meet these

 

requirements.

 

     (c) Driveways on slopes steeper than a 1-foot vertical rise in

 

a 3-foot horizontal plane shall be in accordance with plans

 

submitted with the permit application and prepared for the site by

 

a licensed professional engineer. The plans shall include (i) storm

 

water drainage that provides for disposal of storm water without

 

serious erosion, (ii) methods for controlling erosion from wind and

 

water, and (iii) restabilization, by design elements including

 

vegetation, cut-and-fill, bridges, traverses, and such other

 

elements as are required in the judgment of the engineer to meet

 

these requirements. The engineer shall certify under seal that the

 

driveway is not likely to increase erosion or decrease stability.

 

     (2) Temporary construction access for all construction,

 

including new construction, renovation, repairs, rebuilding, or

 

replacement, and repair, improvement, or replacement of septic

 

tanks and systems, shall be allowed for any use allowed in a

 

critical dune area for which a driveway is not already installed by

 

the owner, subject only to the requirements that the temporary

 

access shall not involve a contour change or vegetation removal

 

that increases erosion or decreases stability except as can be

 

restabilized upon completion of the construction. The temporary

 

access shall be maintained in stable condition, and restabilization

 

shall be commenced promptly upon completion of the construction.

 

     (3) As used in this section, "driveway" means a privately

 

owned, constructed, and maintained vehicular access from a road or

 

easement serving the property to the principal building or

 

accessory buildings, that is paved, graveled, or otherwise improved

 

for vehicular access, 16 feet wide or narrower in the sole

 

discretion of the applicant or owner, and may include, in the sole

 

discretion of the applicant or owner, a shared driveway.

 

     Sec. 35311b. (1) Notwithstanding section 35316 or any other

 

provision of this part, at the request of the applicant, the

 

construction, improvement, and maintenance of accessibility

 

measures shall be permitted for any dwelling or other permanent

 

building allowed in a critical dune area, including a dwelling or

 

other permanent building approved under this part or a lawful

 

nonconforming use, subject only to applicable permit requirements

 

under sections 35312 through 35325 and the following:

 

     (a) Accessibility measures on slopes steeper than a 1-foot

 

vertical rise in a 4-foot horizontal plane, but not steeper than a

 

1-foot vertical rise in a 3-foot horizontal plane, shall be in

 

accordance with plans submitted with the permit application and

 

prepared for the site by a registered professional architect or

 

licensed professional engineer. The plans shall include (i) storm

 

water drainage that provides for disposal of storm water without

 

serious erosion, (ii) methods for controlling erosion from wind and

 

water, and (iii) restabilization, by design elements including

 

vegetation, cut-and-fill, bridges, traverses, and such other

 

elements as are required in the judgment of the architect or

 

engineer to meet these requirements.

 

     (b) Accessibility measures on slopes steeper than a 1-foot

 

vertical rise in a 3-foot horizontal plane shall be in accordance

 

with plans submitted with the permit application and prepared for

 

the site by a licensed professional engineer. The plans shall

 

include (i) storm water drainage that provides for disposal of storm

 

water without serious erosion, (ii) methods for controlling erosion

 

from wind and water, and (iii) restabilization, by design elements

 

including vegetation, cut-and-fill, bridges, traverses, and such

 

other elements as are required in the judgment of the engineer to

 

meet these requirements. The engineer shall certify under seal that

 

the accessibility measures are not likely to increase erosion or

 

decrease stability.

 

     (2) As used in this section, "Accessibility measures" means a

 

circulation path and at least 1 entrance on a circulation path

 

complying with American national standards institute chapter 4

 

standards for accessible routes, from a road or easement serving

 

the property, and, at the option of the applicant, from a sidewalk,

 

a driveway, or a garage. As used in this section, accessibility

 

measures do not include driveways.

 

     (3) For the purposes of this section, the choice of components

 

for an accessible route under American national standards institute

 

standard 402.2 shall be at the option of the applicant.

 

     Sec. 35312. (1) After consulting with the local soil

 

conservation district, a A local unit of government that has 1 or

 

more critical dune areas within its jurisdiction may formulate a

 

zoning ordinance pursuant to the following:Michigan zoning enabling

 

act, 2006 PA 110, MCL 125.3101 to 125.3702.

 

     (a) A county may zone as provided in the county rural zoning

 

enabling act, Act No. 183 of the Public Acts of 1943, being

 

sections 125.201 to 125.232 of the Michigan Compiled Laws.

 

     (b) A city or village may zone as provided in Act No. 207 of

 

the Public Acts of 1921, being sections 125.581 to 125.592 of the

 

Michigan Compiled Laws.

 

     (c) A township may zone as provided in the township rural

 

zoning act, Act No. 184 of the Public Acts of 1943, being sections

 

125.271 to 125.301 of the Michigan Compiled Laws.

 

     (2) A zoning ordinance shall consist of all of the provisions

 

of the model zoning plan or comparable provisions that are at least

 

as protective provide substantially equivalent protection of

 

critical dune areas as the model zoning plan but shall not be more

 

restrictive than the model zoning plan or the standard of review

 

for permits or variances prescribed in the model zoning plan.

 

     (3) A local unit of government may by an affirmative vote of

 

its governing body following a public hearing regulate additional

 

lands as critical dune areas under this part as considered

 

appropriate by the planning commission if the lands are determined

 

by the local unit of government to be essential to the hydrology,

 

ecology, topography, or integrity of a critical dune area. A local

 

unit of government shall provide within its zoning ordinance for

 

the protection of lands that are within 250 feet of a critical dune

 

area, if those lands are determined by the local unit of government

 

to be essential to the hydrology, ecology, topography, or integrity

 

of a critical dune area.

 

     (4) If a local unit of government does not have an approved

 

zoning ordinance, the department may regulate additional lands

 

described in subsection (3). However, the lands added by the

 

department shall not extend more than 250 feet from the landward

 

boundary of a critical dune area, unless, following a public

 

hearing, an affirmative vote of the governing body of the local

 

unit of government authorizes such an a further extension. If the

 

director determines that the mapping of a critical dune area

 

designated in the "atlas of critical dune areas" dated February

 

1989 was inaccurate, the department may regulate additional lands.

 

However, the lands added by the department shall not extend more

 

than 250 feet from the landward boundary of a critical dune area.

 

     Sec. 35313. (1) A zoning ordinance shall require that all

 

applications for permits for the use of a critical dune area

 

include in writing all of the following:

 

     (a) That the county enforcing agency designated pursuant to

 

part 91 finds that the project is in compliance with part 91 and

 

any applicable soil erosion and sedimentation control ordinance

 

that is in effect in the local unit of government.

 

     (b) That a proposed sewage treatment or disposal system on the

 

site has been approved by the county health department or the

 

department.

 

     (c) Assurances that the cutting and removing of trees and

 

other vegetation will be performed according to the instructions or

 

plans of the local soil conservation district. These instructions

 

or plans may include all applicable silvicultural practices as

 

described in the "voluntary "forestry management guidelines for

 

Michigan" prepared by the society of American foresters in 1987 as

 

revised in 2010 . The instructions or plans and may include a

 

program to provide mitigation for the removal of trees or

 

vegetation by providing assurances that the applicant will plant on

 

the site more trees and other vegetation than were removed by the

 

proposed use.

 

     (d) Except as otherwise provided in subdivision (e), a site

 

plan that contains data required by the planning commission

 

concerning the physical development of the site and extent of

 

disruption of the site by the proposed development. The planning

 

commission may consult with the soil conservation district in

 

determining the required data.

 

     (e) An environmental assessment that comports with section

 

35319 for a special use project. An environmental impact statement

 

pursuant to section 35320 may be required if the additional

 

information is considered necessary or helpful in reaching a

 

decision on a permit application for a special use project.

 

     (2) A local unit of government or the department shall not

 

require an environmental site assessment or environmental impact

 

statement as part of a permit application except for a special use

 

project.

 

     Sec. 35316. (1) Unless a variance is granted pursuant to

 

section 35317, a zoning ordinance shall not permit the following

 

uses in a critical dune area:

 

     (a) A structure and access to the structure on a slope within

 

a critical dune area that has a slope that measures from a 1-foot

 

vertical rise in a 4-foot horizontal plane to less than a 1-foot

 

vertical rise in a 3-foot horizontal plane, unless the structure

 

and access to the structure are in accordance with plans prepared

 

for the site by a registered professional architect or a licensed

 

professional engineer and the plans provide for the disposal of

 

storm waters without serious soil erosion and without sedimentation

 

of any stream or other body of water. Prior to approval of the

 

plan, the planning commission shall consult with the local soil

 

conservation district.

 

     (b) A use on a slope within a critical dune area that has a

 

slope steeper than a 1-foot vertical rise in a 3-foot horizontal

 

plane.

 

     (c) A use that is a structure that is not in compliance with

 

subsection (2).

 

     (c) (d) A use involving a contour change if the local unit of

 

government or the department determines that it is more likely than

 

not to increase erosion , or decrease stability. , or is more

 

extensive than required to implement a use for which a permit is

 

requested.

 

     (d) (e) Silvicultural practices, as described in the

 

"voluntary "forest management guidelines for Michigan", prepared by

 

the society of American foresters in 1987 as revised in 2010, if

 

the local unit of government or the department determines that they

 

are more likely than not to increase erosion , or decrease

 

stability. , or are more extensive than required to implement a use

 

for which a permit is requested.

 

     (e) (f) A use that involves a vegetation removal if the local

 

unit of government or the department determines that it is more

 

likely than not to increase erosion , or decrease stability. , or

 

is more extensive than required to implement a use for which a

 

permit is requested.

 

     (g) A use that is not in the public interest. In determining

 

whether a proposed use is in the public interest, the local unit of

 

government shall consider both of the following:

 

     (i) The availability of feasible and prudent alternative

 

locations or methods, or both, to accomplish the benefits expected

 

from the use. If a proposed use is 1 single family dwelling on a

 

lot of record owned by the applicant, consideration of feasible and

 

prudent alternative locations shall be limited to the lot of record

 

on which the use is proposed. A lot of record shall not be created

 

strictly for the purpose of avoiding consideration of alternative

 

locations under this subparagraph.

 

     (ii) The impact that is expected to occur to the critical dune

 

area, and the extent to which the impact may be minimized.

 

     (2) A use that is a structure shall be constructed behind the

 

crest of the first landward ridge of a critical dune area that is

 

not a foredune. However, if construction occurs within 100 feet

 

measured landward from the crest of the first landward ridge that

 

is not a foredune, the applicant shall demonstrate that the

 

proposed use meets all of the following requirements:

 

     (a) The use will not destabilize the critical dune area.

 

     (b) Contour changes and vegetative removal are limited to that

 

essential to siting the structure and access to the structure.

 

     (c) Access to the structure is from the landward side of the

 

dune.

 

     (d) The dune is restabilized with indigenous vegetation.

 

     (e) Construction techniques and methods are employed that

 

mitigate the impact on the dune.

 

     (f) The crest of the dune is not reduced in elevation.

 

     (g) If the department is implementing the model zoning plan,

 

the use meets all other applicable requirements of the zoning

 

ordinance or the model zoning plan.

 

     (2) (3) If the local unit of government is not certain of the

 

degree of slope on a property for which a use permit is sought, the

 

local unit may require that the applicant supply contour maps of

 

the site with 5-foot intervals at or near any proposed structure or

 

roadway. or consult with the local soil conservation district

 

regarding the degree of slope.

 

     (3) (4) Within 60 days after the effective date of this

 

section, the The department shall develop guidelines to describe

 

the method by which the department and local units of government

 

measure slopes to implement the requirements of the zoning

 

ordinance or the model zoning plan.

 

     (4) (5) If a person is ordered by the department, or by a

 

local unit of government that is enforcing a zoning ordinance

 

authorized under this part, to restore a critical dune area that

 

has been degraded by that person, the department or local unit of

 

government shall establish a procedure by which the restoration of

 

the critical dune area is monitored to assure that the restoration

 

is completed in a satisfactory manner.

 

     Sec. 35317. (1) A local unit of government may issue variances

 

under a zoning ordinance, or the department may issue special

 

exceptions under the model zoning plan if a local unit of

 

government does not have an approved zoning ordinance, if a

 

practical difficulty will occur to the owner of the property if the

 

variance or special exception is not granted. In determining

 

whether a practical difficulty will occur if a variance or special

 

exception is not granted, primary consideration shall be given to

 

assuring that human health and safety are protected by the

 

determination and that the determination complies with applicable

 

local zoning, other state laws, and federal law. A variance or a

 

special exception is also subject to the following limitations: If

 

a practical difficulty will occur to the owner of the property if

 

the variance or special exception is not granted, a variance or

 

special exception shall be granted under this section unless the

 

local unit of government or the department determines that it is

 

more likely than not that the actual harm to the environment

 

resulting from the use will significantly damage the public

 

interest on the privately owned land, or, if the land is publicly

 

owned, the public interest in the publicly owned land, by

 

significant and unreasonable depletion or degradation of any of the

 

following:

 

     (a) The diversity of the critical dune areas within the local

 

unit of government.

 

     (b) The quality of the critical dune areas within the local

 

unit of government.

 

     (c) The functions of the critical dune areas within the local

 

unit of government.

 

     (2) The decision of the local unit of government or the

 

department shall be in writing and shall be based upon evidence

 

that would meet the standards in section 75 of the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.275. A decision denying

 

a variance or special exception shall document, and any review

 

upholding the decision shall determine, all of the following:

 

     (a) That the local unit of government or the department has

 

met the burden of proof under subsection (1).

 

     (b) That the decision is based upon sufficient facts or data.

 

     (c) That the decision is the product of reliable scientific

 

principles and methods.

 

     (d) That the decision has applied the principles and methods

 

reliably to the facts.

 

     (e) That the facts or data upon which the decision is based

 

are recorded in the file.

 

     (3) A local unit of government or the department shall not

 

require an environmental site assessment or environmental impact

 

statement for a variance except for a special use project.

 

     (4) (a) A variance shall not be granted from a setback

 

requirement provided for under the model zoning plan or an

 

equivalent zoning ordinance approved under section 35034 enacted

 

pursuant to this part unless the property for which the variance is

 

requested is 1 of the following:

 

     (a) (i) A nonconforming lot of record that is recorded prior to

 

July 5, 1989, and that becomes nonconforming due to the operation

 

of this part or a zoning ordinance.

 

     (b) (ii) A lot legally created after July 5, 1989 that later

 

becomes nonconforming due to natural shoreline erosion.

 

     (c) (iii) Property on which the base of the first landward

 

critical dune of at least 20 feet in height that is not a foredune

 

is located at least 500 feet inland from the first foredune crest

 

or line of vegetation on the property. However, the setback shall

 

be a minimum of 200 feet measured from the foredune crest or line

 

of vegetation.

 

     (b) A variance or special exception shall not be granted that

 

authorizes construction of a dwelling or other permanent building

 

on the first lakeward facing slope of a critical dune area or a

 

foredune. However, a variance or special exception may be granted

 

if the proposed construction is near the base of the lakeward

 

facing slope of the critical dune on a slope of less than 1-foot

 

vertical rise in an 8-foot horizontal plane on a nonconforming lot

 

of record that is recorded prior to July 5, 1989 that has borders

 

that lie entirely on the first lakeward facing slope of the

 

critical dune area that is not a foredune.

 

     (5) (2) Each local unit of government that has issued a

 

variance for a use other than a special use project during the

 

previous 12 months shall file an annual report with the department

 

indicating variances that have been granted by the local unit of

 

government during that period.

 

     (6) (3) Upon receipt of an application for a special exception

 

under the model zoning plan, the department shall forward a copy of

 

the application and all supporting documentation to the local unit

 

of government having jurisdiction over the proposed location. The

 

local unit of government shall have 60 30 days to review and

 

comment on the proposed special exception. The department shall not

 

make a decision on a special exception under the model zoning plan

 

until either the local unit of government has commented on the

 

proposed special exception or has waived its opportunity to review

 

the special exception. The local unit of government may waive its

 

opportunity to consider review the application at any time within

 

60 30 days after receipt of the application and supporting

 

documentation by notifying the department in writing. The local

 

unit of government also waives its opportunity to review the

 

application if it fails to act as authorized in this subsection

 

within 30 days. If the local unit of government waives its

 

opportunity to review the application, or fails to act as

 

authorized in this section within 60 days, the local unit of

 

government also waives its opportunity to oppose the decision by

 

the department to issue a special exception. If the local unit of

 

government opposes the issuance of the special exception, the local

 

unit of government shall notify the department, in writing, of its

 

opposition within the 60-day 30-day notice period. If the local

 

unit of government opposes the issuance of the special exception,

 

the department shall not issue a special exception. The local unit

 

of government may also consider whether a practical difficulty will

 

occur to the owner of the property if the special exception is not

 

granted by the department and may make a recommendation to the

 

department within the 60-day 30-day notice period. The department

 

shall base its determination of whether a practical difficulty

 

exists on information provided by the local unit of government and

 

other pertinent information.

 

     Sec. 35319. The zoning ordinance shall provide that if an

 

environmental assessment is required under section 35313(e) 35313,

 

that assessment shall include the following information concerning

 

the site of the proposed use:

 

     (a) The name and address of the applicant.

 

     (b) A description of the applicant's proprietary interest in

 

the site.

 

     (c) The name, address, and professional qualifications of the

 

person preparing the environmental assessment and his or her

 

opinion as to whether the proposed development of the site is

 

consistent with protecting features of environmental sensitivity

 

and archaeological or historical significance that may be located

 

on the site.

 

     (d) The description and purpose of the proposed use.

 

     (e) The location of existing utilities and drainageways.

 

     (f) The general location and approximate dimensions of

 

proposed structures.

 

     (g) Major proposed change of land forms such as new lakes,

 

terracing, or excavating.

 

     (h) Sketches showing the scale, character, and relationship of

 

structures, streets or driveways, and open space.

 

     (i) Approximate location and type of proposed drainage, water,

 

and sewage facilities.

 

     (j) Legal description of property.

 

     (k) A physical description of the site, including its dominant

 

characteristics, its vegetative character, its present use, and

 

other relevant information.

 

     (l) A natural hazards review consisting of a list of natural

 

hazards such as periodic flooding, poor soil bearing conditions,

 

and any other hazards peculiar to the site.

 

     (m) An erosion review showing how erosion control will be

 

achieved and illustrating plans or programs that may be required by

 

any existing soil erosion and sedimentation ordinance.

 

     Sec. 35320. If an environmental impact statement is required

 

under section 35313(e) 35313 prior to permitting a proposed use, a

 

zoning ordinance may require that the statement include all of the

 

following:

 

     (a) The name and address of the applicant.

 

     (b) A description of the applicant's proprietary interest in

 

the site of the proposed use.

 

     (c) The name, address, and professional qualifications of the

 

proposed professional design team members, including the

 

designation of the person responsible for the preparation of the

 

environmental impact statement.

 

     (d) The description and purpose of the proposed use.

 

     (e) Six copies and 1 reproducible transparency of a schematic

 

use plan of the proposed use showing the general location of the

 

proposed use and major existing physical and natural features on

 

the site, including, but not limited to, watercourses, rock

 

outcropping, wetlands, and wooded areas.

 

     (f) The location of the existing utilities and drainageways.

 

     (g) The location and notation of public streets, parks, and

 

railroad and utility rights-of-way within or adjacent to the

 

proposed use.

 

     (h) The general location and dimensions of proposed streets,

 

driveways, sidewalks, pedestrian ways, trails, off-street parking,

 

and loading areas.

 

     (i) The general location and approximate dimensions of

 

proposed structures.

 

     (j) Major proposed change of land forms such as new lakes,

 

terracing, or excavating.

 

     (k) Approximate existing and proposed contours and drainage

 

patterns, showing at least 5-foot contour intervals.

 

     (l) Sketches showing the scale, character, and relationship of

 

structures, streets or driveways, and open space.

 

     (m) Approximate location and type of proposed drainage, water

 

and sewage treatment and disposal facilities.

 

     (n) A legal description of the property.

 

     (o) An aerial photo and contour map showing the development

 

site in relation to the surrounding area.

 

     (p) A description of the physical site, including its dominant

 

characteristics, its vegetative character, its present use, and

 

other relevant information.

 

     (q) A soil review giving a short descriptive summary of the

 

soil types found on the site and whether the soil permits the use

 

of septic tanks or requires central sewer. The review may be based

 

on the "unified soil classification system" as adopted by the

 

United States government corps of engineers and bureau of

 

reclamation, dated January 1952, or the national cooperative soil

 

survey classification system, and the standards for the development

 

prospects that have been offered for each portion of the site.

 

     (r) A natural hazards review consisting of a list of natural

 

hazards such as periodic flooding, poor soil bearing conditions,

 

and any other hazards peculiar to the site.

 

     (s) A substrata review including a descriptive summary of the

 

various geologic bedrock formations underlying the site, including

 

the identification of known aquifers, the approximate depths of the

 

aquifers, and, if being tapped for use, the principal uses to be

 

made of these waters, including irrigation, domestic water supply,

 

and industrial usage.

 

     (t) An erosion review showing how erosion control will be

 

achieved and illustrating plans or programs that may be required by

 

any existing soil erosion and sedimentation ordinance.

 

     (u) At a minimum, plans for compliance with all of the

 

following standards shall be required for the construction and

 

postconstruction periods:

 

     (i) Surface drainage designs and structures are erosion-proof

 

through control of the direction, volume, and velocities of

 

drainage patterns. These patterns shall promote natural vegetation

 

growth that are included in the design so that drainage waters may

 

be impeded in their flow and percolation encouraged.

 

     (ii) The design shall include trash collection devices when

 

handling street and parking drainage to contain solid waste and

 

trash.

 

     (iii) Watercourse designs, control volumes, and velocities of

 

water to prevent bottom and bank erosion. In particular, changes of

 

direction shall guard against undercutting of banks.

 

     (iv) If vegetation has been removed or has not been able to

 

occur establish on surface areas such as infill zones, it is the

 

duty of the developer to stabilize and control the impacted surface

 

areas to prevent wind erosion and the blowing of surface material

 

through the planting of grasses, windbreaks, and other similar

 

barriers.

 

     Sec. 35321. A zoning ordinance shall provide that, in

 

reviewing a site plan required under section 35313(d), 35313(1)(d),

 

the planning commission shall do all both of the following:

 

     (a) Determine whether the requirements of the zoning ordinance

 

have been met and whether the plan is consistent with existing

 

laws.

 

     (b) Determine whether the advice or assistance of the soil

 

conservation district will be helpful in reviewing a site plan.

 

     (b) (c) Recommend alterations of a proposed development to

 

minimize adverse effects anticipated if the development is approved

 

and to assure compliance with all applicable state and local

 

requirements.

 

     Sec. 35322. Prior to issuing a permit allowing a special use

 

project within a critical dune area, a local unit of government

 

shall submit the special use project application and plan and the

 

proposed decision of the local unit of government to the

 

department. The department shall have 60 30 days to review the plan

 

and may affirm, modify, or reverse the proposed decision of the

 

local unit of government.

 

     Sec. 35323. A structure or use located in a critical dune area

 

that is destroyed by fire, other than arson for which the owner is

 

found to be responsible, or an act of nature, except for erosion,

 

is exempt from the operation of this part or a zoning ordinance

 

under this part for the purpose of rebuilding or replacing the

 

structure or use, if the structure or use was lawful at the time it

 

was constructed or commenced. and the structure A replacement

 

structure and its use may differ from that which was destroyed if

 

it does not exceed in size or scope that which was destroyed. and

 

does not vary from its prior use.

 

     Enacting section 1. Section 35326 of natural resources and

 

environmental protection act, 1994 PA 451, MCL 324.35326, is

 

repealed.