Bill Text: MI SB0431 | 2019-2020 | 100th Legislature | Introduced

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Bill Title: Land use: zoning and growth management; aggregates mining; modify conditions under which zoning ordinance may prohibit. Amends sec. 205 of 2006 PA 110 (MCL 125.3205).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-09-23 - Referred To Committee Of The Whole With Substitute (s-6) [SB0431 Detail]

Download: Michigan-2019-SB0431-Introduced.html

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SENATE BILL No. 431

 

 

August 20, 2019, Introduced by Senator HOLLIER and referred to the Committee on Natural Resources.

 

 

 

     A bill to amend 2006 PA 110, entitled

 

"Michigan zoning enabling act,"

 

by amending section 205 (MCL 125.3205), as amended by 2018 PA 366.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 205. (1) A zoning ordinance is subject to all of the

 

following:

 

     (a) The electric transmission line certification act, 1995 PA

 

30, MCL 460.561 to 460.575.

 

     (b) The regional transit authority act, 2012 PA 387, MCL

 

124.541 to 124.558.

 

     (c) The small wireless communications facilities deployment

 

act, 2018 PA 365, MCL 460.1301 to 460.1339.

 

     (2) A county or township shall not regulate or control the

drilling, completion, or operation of oil or gas wells or other

 

wells drilled for oil or gas exploration purposes and shall does

 

not have jurisdiction with reference to the issuance of permits for

 

the location, drilling, completion, operation, or abandonment of

 

such wells.

 

     (3) An ordinance A local unit of government shall not, by

 

ordinance or otherwise, prevent, prohibit, or deny a permit,

 

approval, or other authorization for the extraction, by mining, of

 

valuable natural resources from any property unless very by a

 

person with property, possessory, or contractual rights to do so if

 

both of the following apply:

 

     (a) The natural resources are valuable. For the purposes of

 

this section, natural resources are valuable if a person, by

 

extracting the natural resources, can receive revenue and

 

reasonably expect to operate at a profit.

 

     (b) Very serious consequences would not result from the

 

extraction of those the natural resources. Natural resources shall

 

be considered valuable for the purposes of this section if a

 

person, by extracting the natural resources, can receive revenue

 

and reasonably expect to operate at a profit.This state has a

 

paramount public interest in the conservation and development of

 

this state's valuable natural resources. Whether very serious

 

consequences would result from the extraction, by mining, of

 

natural resources shall be considered in light of this paramount

 

state interest. For purposes of this section, a consequence is very

 

serious if it substantially exceeds the ordinary impacts of

 

customary mining operations and poses an actual and unnecessary

risk to public health, safety, or welfare that cannot be avoided or

 

ameliorated through the imposition of reasonable controls or

 

conditions on the mining operations.

 

     (4) A person challenging a zoning decision under subsection

 

(3) has the initial burden of showing that there are valuable

 

natural resources located on the relevant property, that there is a

 

need for the natural resources by the person or in the market

 

served by the person, and that no very serious consequences would

 

result from the extraction, by mining, of the natural resources.

 

     (5) In determining under this section whether very serious

 

consequences would result from the extraction, by mining, of

 

natural resources, the standards set forth in Silva v Ada Township,

 

416 Mich 153 (1982), shall be applied and all of the following

 

factors may be considered, if applicable:

 

     (4) Notwithstanding anything to the contrary in this act or

 

any other statute or ordinance, the requirements of subsection

 

(3)(a) and (b) are met if the person seeking to extract natural

 

resources by mining submits to a local unit of government a plan

 

for the proposed extraction that includes all of the following:

 

     (a) A demonstration that the person can, by extracting the

 

natural resources, receive revenue and reasonably expect to operate

 

at a profit.

 

     (b) A general description of the materials, methods, and

 

techniques that will be utilized for the mining operations.

 

     (c) A site plan showing the location of buildings, equipment,

 

stockpiles, roads, berms, or other features necessary to the mining

 

operations and demonstrating all of the following:

     (i) A setback of the mining area from the nearest public

 

roadway or adjoining property line of not less than 50 feet.

 

     (ii) A setback of equipment used for screening and crushing of

 

not less than 200 feet from the nearest public roadway or adjoining

 

property line, or not less than 300 feet from the nearest

 

residential dwelling occupied on adjacent property as of the date

 

of submittal of the plan for extraction.

 

     (d) A description of the proposed haul routes to be used to

 

transport natural resources from the mining area to a primary road,

 

other than for local deliveries.

 

     (e) Signs to be maintained on the boundaries of the mining

 

area, facing outward, spaced every 200 feet or closer, and stating

 

"NO TRESPASSING-MINING AREA".

 

     (f) Stockpiles, other than screening berms, not exceeding the

 

higher of 70 feet above ground surface at the location of the

 

stockpile or 40 feet higher than the elevation of the adjoining

 

property at the nearest property line.

 

     (g) Berming or other screening of the active mining area from

 

an occupied residence on an adjoining property to the extent

 

reasonably practicable. The screening may be accomplished using

 

overburden to the extent available to construct berms of up to 6

 

feet in height along adjoining property lines or by other means

 

requested by the applicant.

 

     (h) A description of processing activities that may include,

 

but are not limited to, washing, screening, crushing, and blending

 

of stone, sand, gravel, and other materials, including recycled

 

materials and other materials obtained from off site.

     (i) A general description of the natural resources deposit.

 

     (j) The sequence of mining, including proposed phasing, if

 

applicable.

 

     (k) Surface overburden removal plans.

 

     (l) A description of the depth from grade level from which the

 

natural resources will be removed.

 

     (m) Proof of financial assurance for reclamation of the mining

 

area meeting the following requirements:

 

     (i) Financial assurance shall be maintained during mining

 

operations and until reclamation has been substantially completed.

 

     (ii) The amount of financial assurance shall be the product of

 

$1,500.00 multiplied by the number of acres disturbed by mining

 

operations but not yet reclaimed, excluding roadways, plant sites,

 

and open water areas that will remain after completion of

 

reclamation. The amount of financial assurance shall be adjusted

 

annually as necessary because of changes in the number of acres as

 

described in this subparagraph.

 

     (iii) Financial assurance shall consist, at the sole option of

 

the applicant, of a performance bond, surety, escrow, cash

 

certificate of deposit, or other equivalent security or a

 

combination thereof. Alternatively, the applicant may demonstrate

 

that it has sufficient financial resources to satisfy the

 

reclamation requirements of subdivision (n).

 

     (n) Plans for reclamation of the mining area following

 

cessation of mining operations that include all of the following:

 

     (i) Grading, revegetating, and stabilization that will

 

minimize, to the extent practicable, soil erosion, sedimentation,

noise, off-site migration of dust, and public safety concerns

 

consistent with subsection (10).

 

     (ii) Reclaiming slopes of the banks of the excavation not

 

exceeding 1 foot vertical to 3 feet horizontal measured from the

 

nearest setback line into any area disturbed by mining operations.

 

     (iii) Where open water with a maximum depth in excess of 5

 

feet will result from mining operations, reclaiming slopes into the

 

water not exceeding 1 foot vertical to 5 feet horizontal maintained

 

and extended into the water to a depth of 5 feet.

 

     (5) As an alternative to subsection (4), and notwithstanding

 

anything to the contrary in this act or any other statute or

 

ordinance, the requirements of subsection (3)(a) and (b) are met if

 

the person seeking to extract natural resources by mining

 

demonstrates both of the following:

 

     (a) That the person can, by extracting the natural resources,

 

receive revenue and reasonably expect to operate at a profit.

 

     (b) That very serious consequences would not result from the

 

extraction of the natural resources by mining, considering the

 

following factors, as applicable:

 

     (i) (a) The relationship of extraction and associated

 

activities with existing land uses.

 

     (ii) (b) The impact on existing land uses in the vicinity of

 

the property.

 

     (iii) (c) The impact on property values in the vicinity of the

 

property and along the proposed hauling route serving the property,

 

based on credible evidence.

 

     (iv) (d) The impact on pedestrian and traffic safety in the

vicinity of the property and along the proposed hauling route

 

serving the property.

 

     (v) (e) The impact on other identifiable health, safety, and

 

welfare interests in the local unit of government.

 

     (f) The overall public interest in the extraction of the

 

specific natural resources on the property.

 

     (6) An application to extract natural resources by mining

 

shall be considered to be administratively complete effective 30

 

days after it is received by the local unit of government unless

 

the local unit of government notifies the applicant, in writing,

 

before the expiration of the 30-day period that the application is

 

not administratively complete. The notification shall specify the

 

information necessary to make the application administratively

 

complete. If the local unit of government notifies the applicant as

 

provided in this subsection, the 30-day period is tolled until the

 

applicant submits to the local unit of government the specified

 

information.

 

     (7) An application to extract natural resources by mining that

 

contains the information required under this act is considered

 

approved if the local unit of government does not make a final

 

decision regarding the application within 180 days after receipt of

 

the completed application. However, the applicant may agree in

 

writing to extend the 180-day period.

 

     (8) If the applicant has made a prima facie case that the

 

requirements of subsection (4) or (5) are met, the burden of proof

 

shifts to the party challenging or opposing the proposed mining

 

operations in an administrative or judicial action challenging

those operations or the zoning ordinance.

 

     (9) If a person challenges in court a zoning decision or

 

ordinance that prevents, prohibits, or denies an applicant a permit

 

or other authorization to extract natural resources by mining, the

 

judicial proceedings and the review of the zoning decision or

 

ordinance shall be de novo.

 

     (10) (6) Subsections (3) to (5) do not limit a local unit of

 

government's reasonable regulation of hours of operation, blasting

 

hours, noise levels, dust control measures, and traffic, not

 

preempted by part 632 of the natural resources and environmental

 

protection act, 1994 PA 451, MCL 324.63201 to 324.63223. However,

 

such regulation shall be reasonable in accommodating customary

 

mining operations .and shall not be more restrictive than the

 

following:

 

     (a) For dust control, dust shall not exceed the standards

 

required pursuant to any applicable general or individual air

 

permit issued pursuant to part 55 of the natural resources and

 

environmental protection act, 1994 PA 451, MCL 324.5501 to

 

324.5542, or federal law.

 

     (b) For noise levels, the 8-hour time-weighted average sound

 

pressure level in decibels measured at the common property line

 

nearest to the active mining area on a sound level meter using the

 

A-weighting network shall not exceed the greater of the following:

 

     (i) 20 DB(A) above background levels.

 

     (ii) The following levels for adjacent property:

 

     (A) For residentially zoned property: 75 A-weighted decibels.

 

     (B) For commercially zoned property: 85 A-weighted decibels.

     (C) For industrial and all other zoning classifications: 90 A-

 

weighted decibels.

 

     (c) For ground vibration, all stationary machinery and

 

equipment shall be mounted and operated to prevent transmission of

 

ground vibration exceeding a displacement of 0.10 inches measured

 

anywhere outside of the property line. Blasting activity shall not

 

create any of the following at any residential building:

 

     (i) Ground vibration in excess of that set forth in United

 

States Bureau of Mines Reports, RI 8507, Figure B-1 "Safe levels of

 

blasting vibrations for houses using a combination of velocity and

 

displacement".

 

     (ii) Air blast in excess of 133 decibels at any residential

 

dwelling.

 

     (d) For truck loading hours, customer truck loading shall be

 

permitted from at least 5 a.m. to 7 p.m. local time, Monday through

 

Saturday, or as otherwise specifically required by state or county

 

contract. These limitations only apply to the loading of trucks or

 

trailers for over-the-road transportation and do not apply to the

 

loading or unloading of railroad cars or ships, which shall be

 

permitted at any time.

 

     (11) A permit or other authorization issued by a local unit of

 

government to extract natural resources by mining is valid until

 

mining operations, including reclamation, are completed.

 

     (12) The 2019 amendatory act that added this subsection

 

applies to the following:

 

     (a) All requests for the extraction of natural resources by

 

mining submitted on or after the effective date of that amendatory

act.

 

     (b) All requests for the extraction of natural resources by

 

mining pending on the effective date of that amendatory act or with

 

respect to which all administrative and judicial actions have not

 

been exhausted.

 

     (13) This section does not apply to ferrous mineral operators

 

regulated under part 631 of the natural resources and environmental

 

protection act, 1994 PA 451, MCL 324.63101 to 324.63110.

 

     (14) This act does not alter or limit the preemptive effect of

 

part 632 of the natural resources and environmental protection act,

 

1994 PA 451, MCL 324.63201 to 324.63223, as it relates to the

 

regulation of nonferrous metallic mining by a local unit of

 

government. A local unit of government shall not exercise zoning

 

authority under this act over activity governed by part 632 of the

 

natural resources and environmental protection act, 1994 PA 451,

 

MCL 324.63201 to 324.63223.

 

     (15) (7) This act does not limit state regulatory authority

 

under other statutes or rules.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.