Bill Text: MI SB1121 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Natural resources; sand dunes; permits; place burden of proof on applicant, and allow local ordinances to be more protective than state law. Amends secs. 35301, 35302, 35304, 35308, 35312, 35313, 35316, 35317 & 35321 of 1994 PA 451 (MCL 324.35301 et seq.) & repeals sec. 35311a of 1994 PA 451 (MCL 324.35311a).
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2014-10-22 - Referred To Committee On Natural Resources, Environment And Great Lakes [SB1121 Detail]
Download: Michigan-2013-SB1121-Introduced.html
SENATE BILL No. 1121
October 22, 2014, Introduced by Senators WARREN and ANDERSON and referred to the Committee on Natural Resources, Environment and Great Lakes.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 35301, 35302, 35304, 35308, 35312, 35313,
35316, 35317, and 35321 (MCL 324.35301, 324.35302, 324.35304,
324.35308, 324.35312, 324.35313, 324.35316, 324.35317, and
324.35321), sections 35301, 35302, 35304, 35312, 35313, 35316,
35317, and 35321 as amended by 2012 PA 297 and section 35308 as
added by 1995 PA 59; 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 if the activity 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 and
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 35304 to 35309 and 35311a 35311b to 35324.35323.
(g) "Permit" means a permit for a use within a critical dune
area under this part.
(h) "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) "Restabilization" means restoration of the natural
contours of a critical dune to the extent practicable, 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) "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 proposed multifamily use of more than 3 acres.
(iii) A proposed 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) "Use" means a developmental, silvicultural, or
recreational activity done or caused to be done by a person that
significantly
alters the a 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) "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) (b)
The purpose of this part is to
balance for present and
future generations 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 in which the critical dune area is located
or the department if the department issues permits as provided
under
subsection (7). A Subject
to subsection (7), all of the
following apply to a permit for a use within a critical dune area:
is
subject to all of the following:
(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
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 shall be
filed
for the uses. If a multiphase development is planned by the permit
applicant, 1 application shall be filed for all phases of the
development.
(b) The local unit of government shall provide notice of an
application filed under this section to each person who makes a
written request to the local unit of government for notification of
pending applications. The local unit of government may charge an
annual
fee for providing this notice. the
notices. The local unit
of government shall prepare a monthly list of the applications made
during the previous month and shall promptly 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 as provided under
subsection (7), 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 sent, the local unit of government may grant the
application without a public hearing. Upon the written request of 2
or more persons who own real property within 2 miles of the project
or within the territory of the local unit of government, the local
unit
of government shall hold a public hearing pertaining to on a
permit application.
(d) At least 10 days' notice of a hearing to be held pursuant
to
this section shall be given by publication all of the following:
(i) Publication in 1 or more newspapers of general circulation
in
the county in which the proposed use is to be located ,
and by
providing
and in other publications, if
appropriate, to give notice
to persons likely to be affected by the proposed use.
(ii) Providing notice to the persons who have requested notice
pursuant to 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. 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 under this section on the model zoning plan
or
on any existing an ordinance that is in effect in adopted by the
local
unit of government that provides a substantially equivalent
the same or a greater level of protection for critical dune areas
and that is approved by the department as provided in subsection
(6).
(g) Subject to section 35316, a permit shall not be approved
unless the local unit of government or the department determines
that the use will not 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.
(h) In applying the standard under subdivision (g), the local
unit shall consider all of the following:
(i) The cumulative effects of existing and proposed uses.
(ii) The effects of the entire proposed development, including
all of the following:
(A) All phases of a multiphase development.
(B) Uses of all lots or parcels created under the land
division act, 1967 PA 288, MCL 560.101 to 560.293, or site
condominium units created under the condominium act, 1978 PA 59,
MCL 559.101 to 559.276.
(C) Driveways, parking areas, turnaround areas, and roads.
(2) A zoning ordinance may be more restrictive of development
and more protective of critical dune areas than the model zoning
plan.
(3)
(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 granting or 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
Whether the applicant has met the burden of proof under subsection
(1).
(b)
That the decision is based upon sufficient local unit of
government or the department considered the facts or data made
available by the applicant.
(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.
(4) (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 building as proposed by
the applicant. The proposed construction under this subsection, 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.
(5) (4)
Except as provided in subsection (3),
(4), 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 a site plan prepared for the site by a registered
professional architect or a licensed professional engineer and the
site plan 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.
(6) (5)
A local unit of government
may at any time adopt a
zoning ordinance as described in subsection (1)(f). As soon as
possible
following adoption of a the
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 substantially equivalent
to
provides a level of
protection the same as or greater than 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 ensure 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 180 days after submittal of the ordinance
to the department under this subsection, that the ordinance is not
in compliance with this part, the ordinance shall be considered to
be approved by the department.
(6)
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) 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) The department shall assist local units of government in
developing ordinances that meet the requirements of this part.
Sec. 35308. (1) Except as provided in subsection (2), the
following uses shall be prohibited in a critical dune area:
(a)
A surface drilling operation that is utilized for the
purpose
of exploring for or producing
hydrocarbons or natural brine
or for the disposal of the waste or by-products of the operation.
(b) Production facilities regulated under parts 615 and 625.
(c) A road unless the road provides access to a building in
the critical dune area that is not otherwise accessible by road.
(2) Uses described in subsection (1) that are lawfully in
existence at a site on July 5, 1989 may be continued. The
continuance, completion, restoration, reconstruction, extension, or
substitution of those existing uses shall be permitted upon
reasonable terms prescribed by the department.
Sec.
35312. (1) A After
consulting with the local conservation
district, a local unit of government that has 1 or more critical
dune areas within its jurisdiction may formulate a zoning ordinance
pursuant to the Michigan zoning enabling act, 2006 PA 110, MCL
125.3101 to 125.3702, to regulate critical dune areas.
(2) A zoning ordinance shall consist of all of the provisions
of the model zoning plan or comparable provisions that provide
substantially
equivalent the same or a
greater level of 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 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 under section 35312 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 conservation district. These instructions or
plans may include applicable silvicultural practices as described
in "forestry management guidelines for Michigan" prepared by the
society
of American foresters in 1987 as revised in 2010. and The
instructions or plans 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) 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 local conservation
district in determining the required data.
(2)
A local unit of government or the department shall not may
require
an environmental site assessment or as part of a permit
application but shall not require an 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 not steeper than
a 1-foot vertical rise in a 3-foot horizontal plane, unless the
structure and access to the structure are in accordance with a site
plan prepared for the site by a registered professional architect
or a licensed professional engineer and the site plan provides for
the disposal of storm waters without serious soil erosion and
without sedimentation of any stream or other body of water. Before
approving the site plan, the planning commission shall consult with
the local 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 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.
(d) Silvicultural practices, as described in the "forest
management guidelines for Michigan", prepared by the society of
American foresters 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.
(e) 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.
(2) 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 conservation district regarding
the degree of slope.
(3) 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) 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 ensure 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
ensuring 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. If a A variance or
special exception shall not be granted unless the local unit of
government or the department determines both of the following:
(a) 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
the
(b) The use will not 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) (a)
The diversity of the critical dune
areas within the
local unit of government.
(ii) (b)
The quality of the critical dune
areas within the
local unit of government.
(iii) (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
granting or 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
Whether the applicant has met the burden of proof under subsection
(1).
(b)
That the decision is based upon sufficient local unit of
government or the department considered the facts or data made
available by the applicant.
(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 may
require
an environmental site assessment or environmental impact
statement
for a variance but shall not require an environmental
impact statement except for a special use project.
(4) A variance shall not be granted from a setback requirement
provided
for under the model zoning plan or an equivalent a zoning
ordinance
approved under section 35034 enacted pursuant to this
part
35304 unless the property for which the variance is
requested
is 1 of the following:
(a) A nonconforming lot of record that is recorded prior to
July
5, 1989, and that becomes nonconforming due to because of the
operation of this part or a zoning ordinance.
(b) A lot legally created after July 5, 1989 that later
becomes
nonconforming due to because
of natural shoreline erosion.
(c) 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.
(5) 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) 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 days to review and comment
on the proposed special exception. The department shall not make a
decision on an application for 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. application.
The local unit of
government may waive its opportunity to review the application at
any time within 60 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 60 days. If the local unit of government waives its
opportunity to review the application, 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 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 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. 35321. A zoning ordinance shall provide that, in
reviewing a site plan required under section 35313(1)(d), the
planning commission shall do 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 local
conservation district will be helpful in reviewing a site plan.
(c) (b)
Recommend alterations of a proposed
development to
minimize adverse effects anticipated if the development is approved
and
to assure ensure compliance with all applicable state and local
requirements.
Enacting section 1. Section 35311a of the natural resources
and environmental protection act, 1994 PA 451, MCL 324.35311a, is
repealed.
