| 1 | 1 | | HOUSE BILL NO. 6165 A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," by amending sections 35301, 35302, 35303, 35304, 35305, 35306, 35308, 35309, 35310, 35311, 35312, 35313, 35314, 35315, 35316, 35319, 35321, 35323, and 35324 (MCL 324.35301, 324.35302, 324.35303, 324.35304, 324.35305, 324.35306, 324.35308, 324.35309, 324.35310, 324.35311, 324.35312, 324.35313, 324.35314, 324.35315, 324.35316, 324.35319, 324.35321, 324.35323, and 324.35324), sections 35301, 35302, 35304, 35305, 35306, 35310, 35311, 35312, 35313, 35316, 35319, 35321, and 35323 as amended by 2012 PA 297 and sections 35303, 35308, 35309, 35314, 35315, and 35324 as added by 1995 PA 59, and by adding sections 35304b and 35326; and to repeal acts and parts of acts. the people of the state of michigan enact: Sec. 35301. As used in this part: (a) "Atlas" means "Atlas of Critical Dunes" published by the department of natural resources and dated February 17, 1989, as updated pursuant to section 35311. (b) (a) "Contour change" includes any grading, filling, digging, or excavating that involves more than 100 square feet or that otherwise significantly alters the physical characteristic of a critical dune area, except that which is involved in sand dune mining as defined in part 637. (c) (b) "Crest" means the line at which the first lakeward facing slope of a critical dune ridge breaks to a slope of less steep than a 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. (d) (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.atlas. (e) (d) "Department" means the department of environmental quality.environment, Great Lakes, and energy. (f) "Director" means the director of the department or the director's designee. (g) (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 to 35324. (h) (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 native 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" use" 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, cultural, or historical significance. (k) "Use" means a developmental, any development activity, including, but not limited to, industrial, commercial, residential, agricultural, silvicultural, or recreational development 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 made or caused by a person. Use does not include sand dune mining as defined in part 637. (l) "Utility line" means any pipe or pipeline used for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone or telegraph messages, or internet, radio, or television communication. (m) (l) "Zoning ordinance" means an ordinance of a local unit of government that regulates the development use 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) 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. (b) In addition to the department, local units of government should have the opportunity to manage critical dune areas. (c) Industrial, commercial, residential, agricultural, silvicultural, or recreational use or alteration of critical dune areas should occur only if the protection of the environment and the ecology of the critical dune areas for the benefit of the present and future generations is assured. Sec. 35303. (1) As soon as practicable following July 5, 1989, the department shall notify by mail each local unit of government that has within its jurisdiction critical dune areas, and include a copy of the "atlas of critical dune areas" dated February 1989 and a copy of former Act No. 222 of the Public Acts of 1976 with the notice. By October 1, 1989, the department shall mail a copy of the same notice to each property owner of record who owns property within a critical dune area. The notices shall include the following information: (1) (a) That designated property within the local unit of government Upon revision of the atlas, the department shall notify each property owner of record that owns property that has been newly designated or removed from designation as a critical dune area that the property is a critical dune area that the use of which is subject to regulation by the department under former Act No. 222 of the Public Acts of 1976.this part. (b) That a local unit of government may adopt a zoning ordinance that is approved by the department, or, if the local unit of government does not have an approved ordinance, the use of the critical dune area will be regulated by the department under the model zoning plan. (2) Upon the request of If requested by the department, a local unit of government shall supply provide to the department the address of each property owner of record who owns property within a critical dune area within its jurisdiction in a timely manner, that enables to enable the department to provide notice to the property owners as required under subsection (1). Sec. 35304. (1) A person shall not initiate undertake 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 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. except as authorized by a permit issued by the department pursuant to part 13. (2) Before filing an application, a person may request a meeting with the department as provided in section 35304b. (3) The application form for the permit 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 be filed for the uses. (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 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, required by section 35313. The application shall be accompanied by an application fee, in the following amount, subject to subsections (4) and (5): (a) Except as otherwise provided in this subsection, $2,000.00. (b) For uses meeting the requirements of a minor project category established under subsection (10), $300.00. (c) For uses meeting the requirements of a general permit category established under subsection (11), $150.00. (d) For a special use, $4,000.00. (4) If work has been done in violation of a permit requirement under this part, the department shall consider accepting and may accept an application for a permit if the application is accompanied by a fee equal to twice the application fee otherwise required under this section. (5) Beginning January 1, 2028 and by January 1 every 3 years after 2028, the department shall adjust the current fees by an amount, rounded to the nearest 5 dollars, determined by the state treasurer at the end of the preceding fiscal year to reflect the cumulative percentage change in the Detroit Consumer Price Index for the most recent 3-year period for which data is available for the Detroit area from the United States Department of Labor, Bureau of Labor Statistics. (6) If, within 30 days after the department notifies the applicant under section 1305(2), or a longer period agreed to by the applicant and the department in writing, the applicant fails to submit the specified information or fee amount requested by the department, the department may consider the application to be withdrawn and the application to be closed. (7) The department shall post on its publicly accessible website an updated list of pending permit applications and public hearings under this part. The department shall establish a process to provide notice of the list by first-class mail to persons who request notification. The department shall give notice of an application shall also be given by first-class mail to all of the following: (a) The local conservation district office. , the (b) The county clerk. , the (c) The county health department. , and the (d) The local unit of government in which the property proposed use is to be 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. (e) The owners of property adjacent to or within 500 feet of the property where the proposed use is located. (8) (c) The notice Notice under subsection (7) shall state that, unless a written request is filed with the local unit of government department within 20 days after the notice is sent, the local unit of government department may grant the application without a public hearing. Upon However, the department may issue a conditional permit before the expiration of the 20-day period if emergency conditions warrant a use to protect property or the public health, safety, or welfare. (9) On the timely written request of 2 or more persons who that own real property or reside within 2 miles of the project, the local unit of government where the proposed use is to be located or an adjacent local unit of government, the local unit of government department shall hold a public hearing pertaining to on a permit application. (d) At The department shall give at least 10 days' notice of a the time, date, location, and purpose of the 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 by providing In addition, the department shall give notice of the hearing to all of the following: (a) The persons who have that requested notice pursuant to subdivision (b) And to the person requesting subsection (7). (b) The persons that requested the hearing. (c) The owners of property adjacent to or within 500 feet of the property where the proposed use is located. (10) After providing notice and an opportunity for a public hearing, the department may establish minor project categories of uses that are similar in nature, that have minimal adverse environmental effects when performed separately, and that will have only minimal cumulative adverse effects on the environment. The department may act upon an application for a use within a minor project category without providing notices pursuant to subsection (7) or (9). All other provisions of this part, except subsection (11), are applicable to a minor project. (11) After providing notice and an opportunity for a public hearing, the department may issue general permits on a statewide basis or within a local unit of government for uses that are similar in nature, that will cause only minimal adverse environmental effects when performed separately, and that will only have minimal cumulative adverse effects on the environment. Before authorizing a specific use to proceed under a general permit, the department may provide notice pursuant to subsection (7) but shall not hold a public hearing and shall not typically require a site inspection. A general permit issued under this subsection shall not be valid for more than 5 years. (12) The department may issue, deny, or impose conditions on a use authorized under a minor project category or a general permit if the conditions are designed to remove an impairment to the critical dune area or to mitigate the effects of the project. The department may also establish a reasonable time when the proposed use is to be completed or terminated. (13) If the department determines that a project, although within a minor project category or a general permit, is likely to cause more than minimal adverse environmental effects, the department may require that the application be processed as provided in subsection (9). (14) If, within 30 days after receiving notice under subsection (7), a local unit of government with authority over zoning notifies the department in writing that it opposes the issuance of a permit based on the criteria in section 35316, the department shall deny the application for the permit, subject to section 1307(6). The department shall not make a decision on the application within the 30-day period unless the local unit of government with authority over zoning has commented on the application or waived its opportunity to comment, in writing. (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 ordinance that is in effect in the local unit of government that provides 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 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) 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 building 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 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. (5) 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 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 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. 35304b. (1) If a preapplication meeting is requested in writing by a landowner or another person who is authorized in writing by the landowner, the department shall meet with the person or the person's representatives to review a proposed use or a proposed permit application under this part in its entirety. The preapplication meeting shall take place at the department's district office for the district that includes the use site or at the use site itself, as specified in the request. (2) A request for a preapplication meeting shall be accompanied by a fee. The fee for a preapplication meeting at the district office is $150.00. The fee for a preapplication meeting at the use site is $300.00 for the first acre or portion of an acre of use area, plus $50.00 for each acre or portion of an acre in excess of the first acre, but not to exceed a fee of $2,500.00. If the location of the use is a single-family residential lot that is less than 1 acre in size, there is a $50.00 fee for a preapplication meeting at the district office, and the fee for a preapplication meeting at the use site is $200.00. Fees under this subsection are subject to adjustment as provided in section 35304(5). (3) If the person withdraws the request at least 24 hours before the preapplication meeting, the department may agree with the person to reschedule the meeting or shall promptly refund the fee and need not meet as provided in this section. Otherwise, if, after agreeing to the time and place for a preapplication meeting, the person requesting the meeting is not represented at the meeting, the person shall forfeit the fee for the meeting. If, after agreeing to the time and place for a preapplication meeting, the department is not represented at the meeting, the department shall refund the fee and send a representative to a rescheduled meeting to be held within 10 days after the first scheduled meeting date. (4) Any written agreement provided by the department as a result of the preapplication meeting regarding the need to obtain a permit under this part is binding on the department for 2 years after the date of the agreement. Sec. 35305. (1) If an applicant for a permit or a special exception or the owner of the property immediately adjacent to the proposed use a person 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 applicant or owner person 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, 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 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, on July 5, 1989, 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. (2) (4) A use needed to maintain, repair, or replace existing utility lines, pipelines, or other utility facilities a utility line within a critical dune area that were if the utility line was in existence on July 5, 1989, or were was constructed in accordance compliance with a permit under this part, is exempt from this part and rules promulgated under this part 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 if the person undertaking the use does both of the following: (a) Notifies the department in writing not less than 30 days before commencing the work. If the work is time sensitive, the department may provide written approval to commence work before the 30-day period ends. (b) Performs the work in compliance with all of the following: (i) (a) Vehicles shall not be driven on slopes greater a slope steeper than a 1-foot vertical rise in a 3-foot horizontal plane. (ii) (b) All disturbed areas shall be immediately stabilized and revegetated with native vegetation following completion of work to prevent erosion. (iii) (c) Any removal of woody vegetation shall be done in a manner to assure ensure that any adverse effect on the dune will be minimized and will not significantly alter the physical characteristics or stability of the dune. (iv) (d) To accomplish replacement of replace 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. (v) (e) In the case of repair of Repair or replacement of an underground utility wires, the repair wire shall be limited to accomplished by the minimal excavation necessary to replace the wires by plowing, small trench excavation, or directional boring only. Replacement However, repair or replacement of wires on slopes an underground utility wire on a slope steeper than a 1-foot vertical rise in a 4-foot horizontal plane shall be limited to installation by plowing, if the distance is not more than 1,000 feet, or directional boring only. (vi) (f) In the case of repair Repair or replacement of an underground pipelines, pipeline shall be accomplished by the minimal necessary directional boring shall be utilized, and if only. However, if excavation is necessary to access and bore the pipeline, the excavation area shall be located on slopes not steeper than a 1-foot vertical rise in a 4-foot horizontal plane. or less. (5) 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. 35308. (1) Except as provided in subsection (2), the following uses shall be are 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 part 615 and or 625. (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. 35309. (1) A local unit of government, or the department if the local unit of government does not have an approved zoning ordinance, may establish a use permit and inspection fee. (1) (2) The department shall forward all fees it collects under this section part to the state treasurer for deposit in the land and water management permit fee fund created in part 301. (2) (3) Fees collected by a local unit of government under a zoning ordinance described in section 35312 shall be credited to the treasury of the local unit of government to be and used to defray the cost of administering uses under a zoning ordinance. (3) (4) In addition to fees provided for in this section, a soil A conservation district may charge a separate fee to cover the actual expense of providing services under this part and for providing technical assistance and advice to individuals who seek assistance in matters pertaining to compliance under this part. (4) (5) A local unit of government , with a zoning ordinance described in section 35312 or the department if the local unit of government does not have an approved zoning ordinance, may require the holder of a permit issued by a the local unit of government or the department, respectively, to file with the local unit of government or the department, respectively, a bond executed by an approved surety in this state in an amount necessary to assure faithful conformance ensure compliance with the permit. 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, a permit issued under this part, the department may suspend or revoke the permit. (2) At the request of the department or another 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 the governing body of a local unit of government, 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 this part. The authority provided under this subsection is in addition to the rights that 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 60 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, 1969 PA 306, MCL 24.201 to 24.328, in the manner provided in that act for contested cases. (3) (4) In addition to any other relief provided by this section, the court may impose on a person who that violates this part , or a permit issued under this part , 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. (4) (5) A person who violates this part , or a person who violates or 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. Beginning with the effective date of the 2012 act that amended this section and once every 10 years thereafter, the department may appoint a team of qualified ecologists, who may be employed by the department or may be persons with whom the department enters into contracts, 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.After providing notice and an opportunity for a public hearing, the department may issue an update to the atlas to improve the accuracy of the designations of critical dune areas or to revise the underlying criteria to provide more precise protection to dunes. The department shall not update the atlas more than once every 5 years. The issuance of an update is subject to appeal under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. 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 adopt a zoning ordinance that regulates critical dune areas, pursuant to the Michigan zoning enabling act, 2006 PA 110, MCL 125.3101 to 125.3702. Regulation of a critical dune area under a zoning ordinance is in addition to regulation under this part. (2) A zoning ordinance shall consist of all of the provisions of the model zoning plan or comparable provisions that provide substantially equivalent protection be at least as protective of critical dune areas as this part. 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. (3) The department may regulate additional lands that are not more than 1,000 feet landward of the existing critical dune area and that the department determines are essential to the hydrology, ecology, topography, or integrity of a critical dune area. (4) If the director determines that the mapping of a critical dune area was inaccurate, the department may designate additional lands as critical dune area or remove existing lands from critical dune area designation. The director may make such a determination on the director's initiative or if a local unit of government or other person submits to the department a detailed study and report that supports the determination. The report shall include information on hydrology, ecology, topography, or other characteristics of the area that warrant the proposed change in critical dune area. The department shall notify affected property owners of the changes as required under section 35303(1). (5) The director shall certify a change in critical dune area under subsection (4) as an addendum to the atlas. The addendum shall be incorporated into the body of the atlas when the atlas is updated under section 35311. However, the addendum itself is subject to the update process. Sec. 35313. (1) A zoning ordinance shall require that all applications for permits for the use of a critical dune area include in writing An application for a permit under section 35304 shall include all of the following: (a) That A copy of a permit for the use under part 91 or a written statement from the county or municipal enforcing agency designated pursuant to part 91 finds that the project is in compliance with that a permit is not required under part 91 and or any applicable soil erosion and sedimentation control ordinance that is in effect in the local unit of government. (b) That a A copy of the county health department's or the department's approval of any proposed sewage treatment or disposal system on the site has been approved by the county health department or the department.property or a written statement from the county health department or the department that approval is not required. (c) Assurances that the cutting and removing of trees and other vegetation will be performed according to the "forestry management guidelines for Michigan" prepared by the society of American foresters in 1987 as revised in 2010 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.best management practices approved by the department, which may require mitigation for the removal of trees and other vegetation. (d) A site plan that contains data required by the planning commission concerning the physical development of the site property and extent of disruption of the site property by the proposed development. project. The site plan shall include the proposed restabilization of the property including vegetation replacement, invasive species control, and spoils disposal. (e) Plans prepared by a licensed professional engineer, registered professional architect, or licensed professional landscape architect for all of the following: (i) Any impacts on slopes steeper than a 1-foot vertical rise in a 4-foot horizontal plane. (ii) Any grading, filling, digging, or excavating that is at or below groundwater depth or that is within 1,000 feet of an inland lake or stream as defined in section 30101. (f) A stormwater management plan. (g) An environmental assessment under section 35319 if either of the following applies: (i) The use is a special use. (ii) The environmental assessment is requested by the department. (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. 35314. (1) A zoning ordinance shall provide for all of the following: (a) Lot size, width, density, and front and side setbacks. (b) Storm water drainage that provides for disposal of drainage water without serious erosion. (c) Methods for controlling erosion from wind and water. (d) Restabilization. (2) Each zoning ordinance shall provide that a use that proposes a subdivision development shall be reviewed by the local unit of government to assure compliance with all of the model zoning plan. (1) A permit issued under this part is valid for a term specified in the permit, but not more than 5 years. (2) The department may establish a reasonable time when the construction, development, or use authorized under any permit issued under this part is to be completed or terminated. (3) The department may impose on a permit, or authorization under a general permit under this part, conditions designed to remove, reduce, or mitigate an impairment to critical dune area benefits that would otherwise result from the project. Sec. 35315. A zoning ordinance The department shall not permit either of the following uses in a critical dune area: (a) The disposal of sewage on-site unless the standards of applicable sanitary codes are met or exceeded. (b) A use that does not comply with the minimum setback requirements required by rules that are promulgated under part 323. 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 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. (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. (1) A person shall not undertake a use in a critical dune area without a permit from the department. (2) A permit shall not be approved under this part unless the department determines all of the following: (a) An unacceptable disruption will not result to the benefits the critical dune area provides. (b) A feasible and prudent alternative does not exist. (c) Issuance of the permit is in the public interest. (3) In determining whether or not a use is in the public interest, the benefits that reasonably may be expected to accrue from the use shall be balanced against the reasonably foreseeable detriments. The following general criteria shall be considered: (a) The extent and permanence of the beneficial or detrimental effects that the use may have on the public and private uses to which the area is suited, including the benefits the critical dune area provides. (b) The availability of feasible and prudent alternative locations and methods. (c) The probable effects of each proposal in relation to the cumulative effects created by other existing and anticipated activities. (d) The probable effects on recognized historic, cultural, scenic, ecological, socioeconomic, and recreational values. (e) The extent to which slopes steeper than a 1-foot vertical rise in a 4-foot horizontal plane and hydrology are impacted. (f) Impacts to the coastal processes that support the health of the critical dune area. (g) The human health and safety need for the proposed activity. (h) The number, types, and rare or imperiled status of the natural communities present on the property. (i) Fragmentation and other impacts on natural communities. (j) The presence of threatened and endangered species. (k) Hydrological and/or hydrogeological impacts. (l) The natural plant communities present on the property and the extent of proposed vegetation removal. (m) The extent of existing development of the property. (n) The presence or absence of invasive species. (o) The size and orientation of proposed structures and driveways relative to sensitive features. (p) Proposed stormwater control measures. (q) The extent of soil disturbance and of proposed grade change. (r) Elements of the proposed use that would impede the free movement of sand. (4) A permit shall not be issued by the department for a building or other permanent structure on the first lakeward slope of a critical dune area or foredune. (5) 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 native vegetation. (e) Construction techniques and methods are employed that mitigate the impact on the dune. (f) The elevation of the crest of the dune is not affected. (6) (2) If the local unit of government department is not certain of the degree of slope on a property for which a use permit is sought, the local unit department may require that the applicant supply contour maps of the site property with 5-foot intervals at or near any proposed structure or roadway or consult with the local conservation district regarding the degree of slope. (7) (3) The department shall develop guidelines to describe the method by which the department and local units of government measure measures slopes to implement the requirements of the zoning ordinance or the model zoning plan.under this part. (8) (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. 35319. The zoning ordinance shall provide that if If an environmental assessment is required under section 35313, that assessment it shall include the following information concerning the site property that is the location of the proposed use: (a) The name and address of the applicant. (b) A description of the applicant's proprietary interest in the site.property. (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) A legal description of the property. (e) A physical description of the property, including its dominant characteristics, its vegetative character, its present use, and other relevant information. (f) (d) The A description and the purpose of the proposed use. (e) The location of existing utilities and drainageways. (g) A summary of the features of environmental sensitivity and archaeological, historical, and cultural significance on the property and the impact of the proposed use on those features. (h) An invasive species site review including survey, methods of containment during and after construction, decontamination procedures, and prevention and monitoring measures. (i) 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 property. (j) An analysis of the impacts to the coastal processes that support the health of the critical dune area. (k) A proposed vegetation plan to stabilize and control the impacted surface areas to prevent wind erosion and the blowing of surface material (l) A site plan including all of the following: (i) A topographic survey with 5-foot contour intervals. (ii) Existing physical and natural features. (iii) Proposed changes of land forms, such as terracing or excavation. (iv) The approximate location and type of existing and proposed surface drainage patterns. (v) (f) The general location and approximate dimensions of existing and proposed structures, utilities, roads, open space, vegetation management, spoils disposal, and any other uses. (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. 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) 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. (1) The department may make minor revisions in a permit issued under this part if all of the following apply: (a) The use is in compliance with the permit and this part. (b) The minor revisions are requested by the permittee in writing. (c) The request is accompanied by a fee of $500.00, or, for uses that are within a minor project category or general permit category, $100.00. Fees under this subdivision are subject to adjustment as provided in section 35304(5). (d) If the request is for a transfer of the permit, the request is accompanied by a written agreement between the current and new owners or operators containing a specific date for transfer of responsibility, coverage, and liability under the permit. (2) The department shall approve or deny the request within 20 business days. However, if the only minor revision requested is a transfer under subsection (4)(a), the department shall approve or deny the request within 10 business days. If the department fails to approve or deny the request within the time required by this subsection, the department shall refund the fee. (3) If the department determines that none of the changes requested are minor revisions, the department shall retain the fee but the permittee may apply the fee toward a new permit for a use at that site. (4) As used in this section, "minor revision" means either of the following with respect to a permit issued under this part: (a) A transfer. (b) A revision that does not increase the overall impact of a use on critical dunes and that is within the scope of the use as described in the original permit. Sec. 35323. A If 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, the rebuilding or replacement of the structure or use 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 all of the following apply: (a) The structure or use was lawful at the time it was constructed or commenced. A replacement structure and its use may differ from that which was destroyed if it (b) The structure does not exceed in size or scope that which was destroyed. (c) The structure does not vary from its prior use. Sec. 35324. Federally owned land, to To the extent allowable by law, and state federally owned land within critical dune areas shall be managed by the federal or state government , respectively, in a manner that is consistent with the model zoning plan.this part. Sec. 35326. The department may promulgate rules to implement this part under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. Enacting section 1. Sections 35307, 35311a, 35311b, 35317, 35320, 35322, and 35325 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.35307, 324.35311a, 324.35311b, 324.35317, 324.35320, 324.35322, and 324.35325, are repealed. |
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| 23 | 23 | | HOUSE BILL NO. 6165 |
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| 24 | 24 | | |
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| 25 | 25 | | |
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| 26 | 26 | | |
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| 27 | 27 | | A bill to amend 1994 PA 451, entitled |
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| 28 | 28 | | |
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| 29 | 29 | | "Natural resources and environmental protection act," |
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| 30 | 30 | | |
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| 31 | 31 | | by amending sections 35301, 35302, 35303, 35304, 35305, 35306, 35308, 35309, 35310, 35311, 35312, 35313, 35314, 35315, 35316, 35319, 35321, 35323, and 35324 (MCL 324.35301, 324.35302, 324.35303, 324.35304, 324.35305, 324.35306, 324.35308, 324.35309, 324.35310, 324.35311, 324.35312, 324.35313, 324.35314, 324.35315, 324.35316, 324.35319, 324.35321, 324.35323, and 324.35324), sections 35301, 35302, 35304, 35305, 35306, 35310, 35311, 35312, 35313, 35316, 35319, 35321, and 35323 as amended by 2012 PA 297 and sections 35303, 35308, 35309, 35314, 35315, and 35324 as added by 1995 PA 59, and by adding sections 35304b and 35326; and to repeal acts and parts of acts. |
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| 32 | 32 | | |
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| 33 | 33 | | the people of the state of michigan enact: |
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| 34 | 34 | | |
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| 35 | 35 | | Sec. 35301. As used in this part: |
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| 36 | 36 | | |
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| 37 | 37 | | (a) "Atlas" means "Atlas of Critical Dunes" published by the department of natural resources and dated February 17, 1989, as updated pursuant to section 35311. |
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| 38 | 38 | | |
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| 39 | 39 | | (b) (a) "Contour change" includes any grading, filling, digging, or excavating that involves more than 100 square feet or that otherwise significantly alters the physical characteristic of a critical dune area, except that which is involved in sand dune mining as defined in part 637. |
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| 40 | 40 | | |
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| 41 | 41 | | (c) (b) "Crest" means the line at which the first lakeward facing slope of a critical dune ridge breaks to a slope of less steep than a 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. |
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| 42 | 42 | | |
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| 43 | 43 | | (d) (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.atlas. |
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| 44 | 44 | | |
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| 45 | 45 | | (e) (d) "Department" means the department of environmental quality.environment, Great Lakes, and energy. |
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| 46 | 46 | | |
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| 47 | 47 | | (f) "Director" means the director of the department or the director's designee. |
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| 48 | 48 | | |
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| 49 | 49 | | (g) (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. |
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| 50 | 50 | | |
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| 51 | 51 | | (f) "Model zoning plan" means the model zoning plan provided for in sections 35304 to 35309 and 35311a to 35324. |
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| 52 | 52 | | |
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| 53 | 53 | | (h) (g) "Permit" means a permit for a use within a critical dune area under this part. |
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| 54 | 54 | | |
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| 55 | 55 | | (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. |
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| 56 | 56 | | |
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| 57 | 57 | | (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 native vegetation, and the placement of snow fencing or other temporary sand trapping measures. for the purpose of preventing erosion, drifting, and slumping of sand. |
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| 58 | 58 | | |
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| 59 | 59 | | (j) "Special use project" use" means any of the following: |
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| 60 | 60 | | |
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| 61 | 61 | | (i) A proposed use in a critical dune area for an industrial or commercial purpose regardless of the size of the site. |
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| 62 | 62 | | |
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| 63 | 63 | | (ii) A multifamily use of more than 3 acres. |
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| 64 | 64 | | |
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| 65 | 65 | | (iii) A multifamily use of 3 acres or less if the density of use is greater than 4 individual residences per acre. |
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| 66 | 66 | | |
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| 67 | 67 | | (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, cultural, or historical significance. |
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| 68 | 68 | | |
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| 69 | 69 | | (k) "Use" means a developmental, any development activity, including, but not limited to, industrial, commercial, residential, agricultural, silvicultural, or recreational development 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 made or caused by a person. Use does not include sand dune mining as defined in part 637. |
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| 70 | 70 | | |
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| 71 | 71 | | (l) "Utility line" means any pipe or pipeline used for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone or telegraph messages, or internet, radio, or television communication. |
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| 72 | 72 | | |
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| 73 | 73 | | (m) (l) "Zoning ordinance" means an ordinance of a local unit of government that regulates the development use of critical dune areas within the local unit of government. pursuant to the requirements of this part. |
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| 74 | 74 | | |
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| 75 | 75 | | Sec. 35302. The legislature finds that: |
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| 76 | 76 | | |
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| 77 | 77 | | (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. |
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| 78 | 78 | | |
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| 79 | 79 | | (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: |
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| 80 | 80 | | |
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| 81 | 81 | | (i) Ensure and enhance the diversity, quality, functions, and values of the critical dunes in a manner that is compatible with private property rights. |
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| 82 | 82 | | |
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| 83 | 83 | | (ii) Ensure sound management of all critical dunes by allowing for compatible economic development and multiple human uses of the critical dunes. |
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| 84 | 84 | | |
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| 85 | 85 | | (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. |
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| 86 | 86 | | |
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| 87 | 87 | | (b) In addition to the department, local units of government should have the opportunity to manage critical dune areas. |
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| 88 | 88 | | |
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| 89 | 89 | | (c) Industrial, commercial, residential, agricultural, silvicultural, or recreational use or alteration of critical dune areas should occur only if the protection of the environment and the ecology of the critical dune areas for the benefit of the present and future generations is assured. |
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| 90 | 90 | | |
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| 91 | 91 | | Sec. 35303. (1) As soon as practicable following July 5, 1989, the department shall notify by mail each local unit of government that has within its jurisdiction critical dune areas, and include a copy of the "atlas of critical dune areas" dated February 1989 and a copy of former Act No. 222 of the Public Acts of 1976 with the notice. By October 1, 1989, the department shall mail a copy of the same notice to each property owner of record who owns property within a critical dune area. The notices shall include the following information: |
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| 92 | 92 | | |
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| 93 | 93 | | (1) (a) That designated property within the local unit of government Upon revision of the atlas, the department shall notify each property owner of record that owns property that has been newly designated or removed from designation as a critical dune area that the property is a critical dune area that the use of which is subject to regulation by the department under former Act No. 222 of the Public Acts of 1976.this part. |
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| 94 | 94 | | |
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| 95 | 95 | | (b) That a local unit of government may adopt a zoning ordinance that is approved by the department, or, if the local unit of government does not have an approved ordinance, the use of the critical dune area will be regulated by the department under the model zoning plan. |
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| 96 | 96 | | |
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| 97 | 97 | | (2) Upon the request of If requested by the department, a local unit of government shall supply provide to the department the address of each property owner of record who owns property within a critical dune area within its jurisdiction in a timely manner, that enables to enable the department to provide notice to the property owners as required under subsection (1). |
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| 98 | 98 | | |
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| 99 | 99 | | Sec. 35304. (1) A person shall not initiate undertake 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 permit for a use within a critical dune area is subject to all of the following: |
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| 100 | 100 | | |
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| 101 | 101 | | (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. except as authorized by a permit issued by the department pursuant to part 13. |
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| 102 | 102 | | |
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| 103 | 103 | | (2) Before filing an application, a person may request a meeting with the department as provided in section 35304b. |
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| 104 | 104 | | |
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| 105 | 105 | | (3) The application form for the permit 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 be filed for the uses. |
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| 106 | 106 | | |
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| 107 | 107 | | (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 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, required by section 35313. The application shall be accompanied by an application fee, in the following amount, subject to subsections (4) and (5): |
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| 108 | 108 | | |
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| 109 | 109 | | (a) Except as otherwise provided in this subsection, $2,000.00. |
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| 110 | 110 | | |
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| 111 | 111 | | (b) For uses meeting the requirements of a minor project category established under subsection (10), $300.00. |
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| 112 | 112 | | |
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| 113 | 113 | | (c) For uses meeting the requirements of a general permit category established under subsection (11), $150.00. |
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| 114 | 114 | | |
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| 115 | 115 | | (d) For a special use, $4,000.00. |
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| 116 | 116 | | |
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| 117 | 117 | | (4) If work has been done in violation of a permit requirement under this part, the department shall consider accepting and may accept an application for a permit if the application is accompanied by a fee equal to twice the application fee otherwise required under this section. |
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| 118 | 118 | | |
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| 119 | 119 | | (5) Beginning January 1, 2028 and by January 1 every 3 years after 2028, the department shall adjust the current fees by an amount, rounded to the nearest 5 dollars, determined by the state treasurer at the end of the preceding fiscal year to reflect the cumulative percentage change in the Detroit Consumer Price Index for the most recent 3-year period for which data is available for the Detroit area from the United States Department of Labor, Bureau of Labor Statistics. |
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| 120 | 120 | | |
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| 121 | 121 | | (6) If, within 30 days after the department notifies the applicant under section 1305(2), or a longer period agreed to by the applicant and the department in writing, the applicant fails to submit the specified information or fee amount requested by the department, the department may consider the application to be withdrawn and the application to be closed. |
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| 122 | 122 | | |
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| 123 | 123 | | (7) The department shall post on its publicly accessible website an updated list of pending permit applications and public hearings under this part. The department shall establish a process to provide notice of the list by first-class mail to persons who request notification. The department shall give notice of an application shall also be given by first-class mail to all of the following: |
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| 124 | 124 | | |
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| 125 | 125 | | (a) The local conservation district office. , the |
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| 126 | 126 | | |
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| 127 | 127 | | (b) The county clerk. , the |
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| 128 | 128 | | |
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| 129 | 129 | | (c) The county health department. , and the |
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| 130 | 130 | | |
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| 131 | 131 | | (d) The local unit of government in which the property proposed use is to be 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. |
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| 132 | 132 | | |
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| 133 | 133 | | (e) The owners of property adjacent to or within 500 feet of the property where the proposed use is located. |
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| 134 | 134 | | |
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| 135 | 135 | | (8) (c) The notice Notice under subsection (7) shall state that, unless a written request is filed with the local unit of government department within 20 days after the notice is sent, the local unit of government department may grant the application without a public hearing. Upon However, the department may issue a conditional permit before the expiration of the 20-day period if emergency conditions warrant a use to protect property or the public health, safety, or welfare. |
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| 136 | 136 | | |
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| 137 | 137 | | (9) On the timely written request of 2 or more persons who that own real property or reside within 2 miles of the project, the local unit of government where the proposed use is to be located or an adjacent local unit of government, the local unit of government department shall hold a public hearing pertaining to on a permit application. |
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| 138 | 138 | | |
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| 139 | 139 | | (d) At The department shall give at least 10 days' notice of a the time, date, location, and purpose of the 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 by providing In addition, the department shall give notice of the hearing to all of the following: |
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| 140 | 140 | | |
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| 141 | 141 | | (a) The persons who have that requested notice pursuant to subdivision (b) And to the person requesting subsection (7). |
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| 142 | 142 | | |
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| 143 | 143 | | (b) The persons that requested the hearing. |
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| 144 | 144 | | |
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| 145 | 145 | | (c) The owners of property adjacent to or within 500 feet of the property where the proposed use is located. |
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| 146 | 146 | | |
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| 147 | 147 | | (10) After providing notice and an opportunity for a public hearing, the department may establish minor project categories of uses that are similar in nature, that have minimal adverse environmental effects when performed separately, and that will have only minimal cumulative adverse effects on the environment. The department may act upon an application for a use within a minor project category without providing notices pursuant to subsection (7) or (9). All other provisions of this part, except subsection (11), are applicable to a minor project. |
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| 148 | 148 | | |
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| 149 | 149 | | (11) After providing notice and an opportunity for a public hearing, the department may issue general permits on a statewide basis or within a local unit of government for uses that are similar in nature, that will cause only minimal adverse environmental effects when performed separately, and that will only have minimal cumulative adverse effects on the environment. Before authorizing a specific use to proceed under a general permit, the department may provide notice pursuant to subsection (7) but shall not hold a public hearing and shall not typically require a site inspection. A general permit issued under this subsection shall not be valid for more than 5 years. |
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| 150 | 150 | | |
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| 151 | 151 | | (12) The department may issue, deny, or impose conditions on a use authorized under a minor project category or a general permit if the conditions are designed to remove an impairment to the critical dune area or to mitigate the effects of the project. The department may also establish a reasonable time when the proposed use is to be completed or terminated. |
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| 152 | 152 | | |
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| 153 | 153 | | (13) If the department determines that a project, although within a minor project category or a general permit, is likely to cause more than minimal adverse environmental effects, the department may require that the application be processed as provided in subsection (9). |
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| 154 | 154 | | |
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| 155 | 155 | | (14) If, within 30 days after receiving notice under subsection (7), a local unit of government with authority over zoning notifies the department in writing that it opposes the issuance of a permit based on the criteria in section 35316, the department shall deny the application for the permit, subject to section 1307(6). The department shall not make a decision on the application within the 30-day period unless the local unit of government with authority over zoning has commented on the application or waived its opportunity to comment, in writing. |
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| 156 | 156 | | |
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| 157 | 157 | | (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). |
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| 158 | 158 | | |
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| 159 | 159 | | (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 ordinance that is in effect in the local unit of government that provides a substantially equivalent level of protection for critical dune areas and that is approved by the department. |
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| 160 | 160 | | |
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| 161 | 161 | | (g) Subject to section 35316, a permit shall be approved unless the local unit of government or the department determines that 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: |
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| 162 | 162 | | |
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| 163 | 163 | | (i) The diversity of the critical dune areas within the local unit of government. |
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| 164 | 164 | | |
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| 165 | 165 | | (ii) The quality of the critical dune areas within the local unit of government. |
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| 166 | 166 | | |
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| 167 | 167 | | (iii) The functions of the critical dune areas within the local unit of government. |
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| 168 | 168 | | |
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| 169 | 169 | | (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: |
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| 170 | 170 | | |
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| 171 | 171 | | (a) That the local unit of government or the department has met the burden of proof under subsection (1). |
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| 172 | 172 | | |
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| 173 | 173 | | (b) That the decision is based upon sufficient facts or data. |
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| 174 | 174 | | |
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| 175 | 175 | | (c) That the decision is the product of reliable scientific principles and methods. |
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| 176 | 176 | | |
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| 177 | 177 | | (d) That the decision has applied the principles and methods reliably to the facts. |
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| 178 | 178 | | |
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| 179 | 179 | | (e) That the facts or data upon which the decision is based are recorded in the file. |
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| 180 | 180 | | |
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| 181 | 181 | | (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, 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. |
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| 182 | 182 | | |
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| 183 | 183 | | (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: |
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| 184 | 184 | | |
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| 185 | 185 | | (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. |
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| 186 | 186 | | |
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| 187 | 187 | | (b) Access to the structure shall be from the landward side of the dune. |
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| 188 | 188 | | |
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| 189 | 189 | | (c) The dune shall be restabilized with indigenous vegetation. |
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| 190 | 190 | | |
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| 191 | 191 | | (d) The crest of the dune shall not be reduced in elevation. |
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| 192 | 192 | | |
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| 193 | 193 | | (5) 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 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 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. |
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| 194 | 194 | | |
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| 195 | 195 | | (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. |
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| 196 | 196 | | |
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| 197 | 197 | | (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. |
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| 198 | 198 | | |
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| 199 | 199 | | (8) The department shall assist local units of government in developing ordinances that meet the requirements of this part. |
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| 200 | 200 | | |
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| 201 | 201 | | Sec. 35304b. (1) If a preapplication meeting is requested in writing by a landowner or another person who is authorized in writing by the landowner, the department shall meet with the person or the person's representatives to review a proposed use or a proposed permit application under this part in its entirety. The preapplication meeting shall take place at the department's district office for the district that includes the use site or at the use site itself, as specified in the request. |
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| 202 | 202 | | |
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| 203 | 203 | | (2) A request for a preapplication meeting shall be accompanied by a fee. The fee for a preapplication meeting at the district office is $150.00. The fee for a preapplication meeting at the use site is $300.00 for the first acre or portion of an acre of use area, plus $50.00 for each acre or portion of an acre in excess of the first acre, but not to exceed a fee of $2,500.00. If the location of the use is a single-family residential lot that is less than 1 acre in size, there is a $50.00 fee for a preapplication meeting at the district office, and the fee for a preapplication meeting at the use site is $200.00. Fees under this subsection are subject to adjustment as provided in section 35304(5). |
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| 204 | 204 | | |
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| 205 | 205 | | (3) If the person withdraws the request at least 24 hours before the preapplication meeting, the department may agree with the person to reschedule the meeting or shall promptly refund the fee and need not meet as provided in this section. Otherwise, if, after agreeing to the time and place for a preapplication meeting, the person requesting the meeting is not represented at the meeting, the person shall forfeit the fee for the meeting. If, after agreeing to the time and place for a preapplication meeting, the department is not represented at the meeting, the department shall refund the fee and send a representative to a rescheduled meeting to be held within 10 days after the first scheduled meeting date. |
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| 206 | 206 | | |
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| 207 | 207 | | (4) Any written agreement provided by the department as a result of the preapplication meeting regarding the need to obtain a permit under this part is binding on the department for 2 years after the date of the agreement. |
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| 208 | 208 | | |
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| 209 | 209 | | Sec. 35305. (1) If an applicant for a permit or a special exception or the owner of the property immediately adjacent to the proposed use a person 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 applicant or owner person 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, 1969 PA 306, MCL 24.201 to 24.328. |
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| 210 | 210 | | |
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| 211 | 211 | | (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 the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. |
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| 212 | 212 | | |
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| 213 | 213 | | 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, on July 5, 1989, 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. |
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| 214 | 214 | | |
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| 215 | 215 | | (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. |
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| 216 | 216 | | |
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| 217 | 217 | | (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. |
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| 218 | 218 | | |
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| 219 | 219 | | (2) (4) A use needed to maintain, repair, or replace existing utility lines, pipelines, or other utility facilities a utility line within a critical dune area that were if the utility line was in existence on July 5, 1989, or were was constructed in accordance compliance with a permit under this part, is exempt from this part and rules promulgated under this part 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 if the person undertaking the use does both of the following: |
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| 220 | 220 | | |
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| 221 | 221 | | (a) Notifies the department in writing not less than 30 days before commencing the work. If the work is time sensitive, the department may provide written approval to commence work before the 30-day period ends. |
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| 222 | 222 | | |
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| 223 | 223 | | (b) Performs the work in compliance with all of the following: |
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| 224 | 224 | | |
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| 225 | 225 | | (i) (a) Vehicles shall not be driven on slopes greater a slope steeper than a 1-foot vertical rise in a 3-foot horizontal plane. |
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| 226 | 226 | | |
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| 227 | 227 | | (ii) (b) All disturbed areas shall be immediately stabilized and revegetated with native vegetation following completion of work to prevent erosion. |
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| 228 | 228 | | |
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| 229 | 229 | | (iii) (c) Any removal of woody vegetation shall be done in a manner to assure ensure that any adverse effect on the dune will be minimized and will not significantly alter the physical characteristics or stability of the dune. |
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| 230 | 230 | | |
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| 231 | 231 | | (iv) (d) To accomplish replacement of replace 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. |
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| 232 | 232 | | |
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| 233 | 233 | | (v) (e) In the case of repair of Repair or replacement of an underground utility wires, the repair wire shall be limited to accomplished by the minimal excavation necessary to replace the wires by plowing, small trench excavation, or directional boring only. Replacement However, repair or replacement of wires on slopes an underground utility wire on a slope steeper than a 1-foot vertical rise in a 4-foot horizontal plane shall be limited to installation by plowing, if the distance is not more than 1,000 feet, or directional boring only. |
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| 234 | 234 | | |
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| 235 | 235 | | (vi) (f) In the case of repair Repair or replacement of an underground pipelines, pipeline shall be accomplished by the minimal necessary directional boring shall be utilized, and if only. However, if excavation is necessary to access and bore the pipeline, the excavation area shall be located on slopes not steeper than a 1-foot vertical rise in a 4-foot horizontal plane. or less. |
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| 236 | 236 | | |
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| 237 | 237 | | (5) 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. |
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| 238 | 238 | | |
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| 239 | 239 | | Sec. 35308. (1) Except as provided in subsection (2), the following uses shall be are prohibited in a critical dune area: |
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| 240 | 240 | | |
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| 241 | 241 | | (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. |
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| 242 | 242 | | |
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| 243 | 243 | | (b) Production facilities regulated under parts part 615 and or 625. |
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| 244 | 244 | | |
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| 245 | 245 | | (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. |
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| 246 | 246 | | |
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| 247 | 247 | | Sec. 35309. (1) A local unit of government, or the department if the local unit of government does not have an approved zoning ordinance, may establish a use permit and inspection fee. |
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| 248 | 248 | | |
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| 249 | 249 | | (1) (2) The department shall forward all fees it collects under this section part to the state treasurer for deposit in the land and water management permit fee fund created in part 301. |
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| 250 | 250 | | |
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| 251 | 251 | | (2) (3) Fees collected by a local unit of government under a zoning ordinance described in section 35312 shall be credited to the treasury of the local unit of government to be and used to defray the cost of administering uses under a zoning ordinance. |
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| 252 | 252 | | |
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| 253 | 253 | | (3) (4) In addition to fees provided for in this section, a soil A conservation district may charge a separate fee to cover the actual expense of providing services under this part and for providing technical assistance and advice to individuals who seek assistance in matters pertaining to compliance under this part. |
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| 254 | 254 | | |
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| 255 | 255 | | (4) (5) A local unit of government , with a zoning ordinance described in section 35312 or the department if the local unit of government does not have an approved zoning ordinance, may require the holder of a permit issued by a the local unit of government or the department, respectively, to file with the local unit of government or the department, respectively, a bond executed by an approved surety in this state in an amount necessary to assure faithful conformance ensure compliance with the permit. |
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| 256 | 256 | | |
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| 257 | 257 | | 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, a permit issued under this part, the department may suspend or revoke the permit. |
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| 258 | 258 | | |
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| 259 | 259 | | (2) At the request of the department or another 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 the governing body of a local unit of government, 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 this part. The authority provided under this subsection is in addition to the rights that 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. |
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| 260 | 260 | | |
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| 261 | 261 | | (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 60 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, 1969 PA 306, MCL 24.201 to 24.328, in the manner provided in that act for contested cases. |
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| 262 | 262 | | |
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| 263 | 263 | | (3) (4) In addition to any other relief provided by this section, the court may impose on a person who that violates this part , or a permit issued under this part , 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. |
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| 264 | 264 | | |
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| 265 | 265 | | (4) (5) A person who violates this part , or a person who violates or 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. |
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| 266 | 266 | | |
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| 267 | 267 | | Sec. 35311. Beginning with the effective date of the 2012 act that amended this section and once every 10 years thereafter, the department may appoint a team of qualified ecologists, who may be employed by the department or may be persons with whom the department enters into contracts, 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.After providing notice and an opportunity for a public hearing, the department may issue an update to the atlas to improve the accuracy of the designations of critical dune areas or to revise the underlying criteria to provide more precise protection to dunes. The department shall not update the atlas more than once every 5 years. The issuance of an update is subject to appeal under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. |
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| 268 | 268 | | |
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| 269 | 269 | | 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 adopt a zoning ordinance that regulates critical dune areas, pursuant to the Michigan zoning enabling act, 2006 PA 110, MCL 125.3101 to 125.3702. Regulation of a critical dune area under a zoning ordinance is in addition to regulation under this part. |
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| 270 | 270 | | |
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| 271 | 271 | | (2) A zoning ordinance shall consist of all of the provisions of the model zoning plan or comparable provisions that provide substantially equivalent protection be at least as protective of critical dune areas as this part. 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. |
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| 272 | 272 | | |
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| 273 | 273 | | (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. |
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| 274 | 274 | | |
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| 275 | 275 | | (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. |
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| 276 | 276 | | |
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| 277 | 277 | | (3) The department may regulate additional lands that are not more than 1,000 feet landward of the existing critical dune area and that the department determines are essential to the hydrology, ecology, topography, or integrity of a critical dune area. |
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| 278 | 278 | | |
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| 279 | 279 | | (4) If the director determines that the mapping of a critical dune area was inaccurate, the department may designate additional lands as critical dune area or remove existing lands from critical dune area designation. The director may make such a determination on the director's initiative or if a local unit of government or other person submits to the department a detailed study and report that supports the determination. The report shall include information on hydrology, ecology, topography, or other characteristics of the area that warrant the proposed change in critical dune area. The department shall notify affected property owners of the changes as required under section 35303(1). |
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| 280 | 280 | | |
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| 281 | 281 | | (5) The director shall certify a change in critical dune area under subsection (4) as an addendum to the atlas. The addendum shall be incorporated into the body of the atlas when the atlas is updated under section 35311. However, the addendum itself is subject to the update process. |
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| 282 | 282 | | |
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| 283 | 283 | | Sec. 35313. (1) A zoning ordinance shall require that all applications for permits for the use of a critical dune area include in writing An application for a permit under section 35304 shall include all of the following: |
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| 284 | 284 | | |
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| 285 | 285 | | (a) That A copy of a permit for the use under part 91 or a written statement from the county or municipal enforcing agency designated pursuant to part 91 finds that the project is in compliance with that a permit is not required under part 91 and or any applicable soil erosion and sedimentation control ordinance that is in effect in the local unit of government. |
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| 286 | 286 | | |
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| 287 | 287 | | (b) That a A copy of the county health department's or the department's approval of any proposed sewage treatment or disposal system on the site has been approved by the county health department or the department.property or a written statement from the county health department or the department that approval is not required. |
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| 288 | 288 | | |
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| 289 | 289 | | (c) Assurances that the cutting and removing of trees and other vegetation will be performed according to the "forestry management guidelines for Michigan" prepared by the society of American foresters in 1987 as revised in 2010 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.best management practices approved by the department, which may require mitigation for the removal of trees and other vegetation. |
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| 290 | 290 | | |
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| 291 | 291 | | (d) A site plan that contains data required by the planning commission concerning the physical development of the site property and extent of disruption of the site property by the proposed development. project. The site plan shall include the proposed restabilization of the property including vegetation replacement, invasive species control, and spoils disposal. |
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| 292 | 292 | | |
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| 293 | 293 | | (e) Plans prepared by a licensed professional engineer, registered professional architect, or licensed professional landscape architect for all of the following: |
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| 294 | 294 | | |
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| 295 | 295 | | (i) Any impacts on slopes steeper than a 1-foot vertical rise in a 4-foot horizontal plane. |
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| 296 | 296 | | |
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| 297 | 297 | | (ii) Any grading, filling, digging, or excavating that is at or below groundwater depth or that is within 1,000 feet of an inland lake or stream as defined in section 30101. |
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| 298 | 298 | | |
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| 299 | 299 | | (f) A stormwater management plan. |
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| 300 | 300 | | |
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| 301 | 301 | | (g) An environmental assessment under section 35319 if either of the following applies: |
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| 302 | 302 | | |
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| 303 | 303 | | (i) The use is a special use. |
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| 304 | 304 | | |
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| 305 | 305 | | (ii) The environmental assessment is requested by the department. |
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| 306 | 306 | | |
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| 307 | 307 | | (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. |
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| 308 | 308 | | |
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| 309 | 309 | | Sec. 35314. (1) A zoning ordinance shall provide for all of the following: |
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| 310 | 310 | | |
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| 311 | 311 | | (a) Lot size, width, density, and front and side setbacks. |
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| 312 | 312 | | |
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| 313 | 313 | | (b) Storm water drainage that provides for disposal of drainage water without serious erosion. |
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| 314 | 314 | | |
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| 315 | 315 | | (c) Methods for controlling erosion from wind and water. |
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| 316 | 316 | | |
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| 317 | 317 | | (d) Restabilization. |
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| 318 | 318 | | |
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| 319 | 319 | | (2) Each zoning ordinance shall provide that a use that proposes a subdivision development shall be reviewed by the local unit of government to assure compliance with all of the model zoning plan. |
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| 320 | 320 | | |
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| 321 | 321 | | (1) A permit issued under this part is valid for a term specified in the permit, but not more than 5 years. |
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| 322 | 322 | | |
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| 323 | 323 | | (2) The department may establish a reasonable time when the construction, development, or use authorized under any permit issued under this part is to be completed or terminated. |
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| 324 | 324 | | |
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| 325 | 325 | | (3) The department may impose on a permit, or authorization under a general permit under this part, conditions designed to remove, reduce, or mitigate an impairment to critical dune area benefits that would otherwise result from the project. |
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| 326 | 326 | | |
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| 327 | 327 | | Sec. 35315. A zoning ordinance The department shall not permit either of the following uses in a critical dune area: |
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| 328 | 328 | | |
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| 329 | 329 | | (a) The disposal of sewage on-site unless the standards of applicable sanitary codes are met or exceeded. |
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| 330 | 330 | | |
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| 331 | 331 | | (b) A use that does not comply with the minimum setback requirements required by rules that are promulgated under part 323. |
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| 332 | 332 | | |
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| 333 | 333 | | 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: |
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| 334 | 334 | | |
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| 335 | 335 | | (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 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. |
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| 336 | 336 | | |
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| 337 | 337 | | (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. |
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| 338 | 338 | | |
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| 339 | 339 | | (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. |
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| 340 | 340 | | |
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| 341 | 341 | | (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. |
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| 342 | 342 | | |
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| 343 | 343 | | (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. |
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| 344 | 344 | | |
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| 345 | 345 | | (1) A person shall not undertake a use in a critical dune area without a permit from the department. |
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| 346 | 346 | | |
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| 347 | 347 | | (2) A permit shall not be approved under this part unless the department determines all of the following: |
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| 348 | 348 | | |
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| 349 | 349 | | (a) An unacceptable disruption will not result to the benefits the critical dune area provides. |
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| 350 | 350 | | |
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| 351 | 351 | | (b) A feasible and prudent alternative does not exist. |
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| 352 | 352 | | |
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| 353 | 353 | | (c) Issuance of the permit is in the public interest. |
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| 354 | 354 | | |
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| 355 | 355 | | (3) In determining whether or not a use is in the public interest, the benefits that reasonably may be expected to accrue from the use shall be balanced against the reasonably foreseeable detriments. The following general criteria shall be considered: |
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| 356 | 356 | | |
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| 357 | 357 | | (a) The extent and permanence of the beneficial or detrimental effects that the use may have on the public and private uses to which the area is suited, including the benefits the critical dune area provides. |
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| 358 | 358 | | |
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| 359 | 359 | | (b) The availability of feasible and prudent alternative locations and methods. |
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| 360 | 360 | | |
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| 361 | 361 | | (c) The probable effects of each proposal in relation to the cumulative effects created by other existing and anticipated activities. |
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| 362 | 362 | | |
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| 363 | 363 | | (d) The probable effects on recognized historic, cultural, scenic, ecological, socioeconomic, and recreational values. |
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| 364 | 364 | | |
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| 365 | 365 | | (e) The extent to which slopes steeper than a 1-foot vertical rise in a 4-foot horizontal plane and hydrology are impacted. |
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| 366 | 366 | | |
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| 367 | 367 | | (f) Impacts to the coastal processes that support the health of the critical dune area. |
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| 368 | 368 | | |
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| 369 | 369 | | (g) The human health and safety need for the proposed activity. |
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| 370 | 370 | | |
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| 371 | 371 | | (h) The number, types, and rare or imperiled status of the natural communities present on the property. |
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| 372 | 372 | | |
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| 373 | 373 | | (i) Fragmentation and other impacts on natural communities. |
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| 374 | 374 | | |
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| 375 | 375 | | (j) The presence of threatened and endangered species. |
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| 376 | 376 | | |
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| 377 | 377 | | (k) Hydrological and/or hydrogeological impacts. |
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| 378 | 378 | | |
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| 379 | 379 | | (l) The natural plant communities present on the property and the extent of proposed vegetation removal. |
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| 380 | 380 | | |
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| 381 | 381 | | (m) The extent of existing development of the property. |
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| 382 | 382 | | |
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| 383 | 383 | | (n) The presence or absence of invasive species. |
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| 384 | 384 | | |
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| 385 | 385 | | (o) The size and orientation of proposed structures and driveways relative to sensitive features. |
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| 386 | 386 | | |
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| 387 | 387 | | (p) Proposed stormwater control measures. |
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| 388 | 388 | | |
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| 389 | 389 | | (q) The extent of soil disturbance and of proposed grade change. |
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| 390 | 390 | | |
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| 391 | 391 | | (r) Elements of the proposed use that would impede the free movement of sand. |
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| 392 | 392 | | |
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| 393 | 393 | | (4) A permit shall not be issued by the department for a building or other permanent structure on the first lakeward slope of a critical dune area or foredune. |
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| 394 | 394 | | |
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| 395 | 395 | | (5) 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: |
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| 396 | 396 | | |
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| 397 | 397 | | (a) The use will not destabilize the critical dune area. |
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| 398 | 398 | | |
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| 399 | 399 | | (b) Contour changes and vegetative removal are limited to that essential to siting the structure and access to the structure. |
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| 400 | 400 | | |
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| 401 | 401 | | (c) Access to the structure is from the landward side of the dune. |
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| 402 | 402 | | |
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| 403 | 403 | | (d) The dune is restabilized with native vegetation. |
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| 404 | 404 | | |
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| 405 | 405 | | (e) Construction techniques and methods are employed that mitigate the impact on the dune. |
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| 406 | 406 | | |
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| 407 | 407 | | (f) The elevation of the crest of the dune is not affected. |
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| 408 | 408 | | |
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| 409 | 409 | | (6) (2) If the local unit of government department is not certain of the degree of slope on a property for which a use permit is sought, the local unit department may require that the applicant supply contour maps of the site property with 5-foot intervals at or near any proposed structure or roadway or consult with the local conservation district regarding the degree of slope. |
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| 410 | 410 | | |
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| 411 | 411 | | (7) (3) The department shall develop guidelines to describe the method by which the department and local units of government measure measures slopes to implement the requirements of the zoning ordinance or the model zoning plan.under this part. |
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| 412 | 412 | | |
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| 413 | 413 | | (8) (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. |
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| 414 | 414 | | |
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| 415 | 415 | | Sec. 35319. The zoning ordinance shall provide that if If an environmental assessment is required under section 35313, that assessment it shall include the following information concerning the site property that is the location of the proposed use: |
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| 416 | 416 | | |
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| 417 | 417 | | (a) The name and address of the applicant. |
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| 418 | 418 | | |
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| 419 | 419 | | (b) A description of the applicant's proprietary interest in the site.property. |
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| 420 | 420 | | |
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| 421 | 421 | | (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. |
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| 422 | 422 | | |
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| 423 | 423 | | (d) A legal description of the property. |
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| 424 | 424 | | |
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| 425 | 425 | | (e) A physical description of the property, including its dominant characteristics, its vegetative character, its present use, and other relevant information. |
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| 426 | 426 | | |
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| 427 | 427 | | (f) (d) The A description and the purpose of the proposed use. |
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| 428 | 428 | | |
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| 429 | 429 | | (e) The location of existing utilities and drainageways. |
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| 430 | 430 | | |
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| 431 | 431 | | (g) A summary of the features of environmental sensitivity and archaeological, historical, and cultural significance on the property and the impact of the proposed use on those features. |
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| 432 | 432 | | |
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| 433 | 433 | | (h) An invasive species site review including survey, methods of containment during and after construction, decontamination procedures, and prevention and monitoring measures. |
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| 434 | 434 | | |
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| 435 | 435 | | (i) 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 property. |
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| 436 | 436 | | |
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| 437 | 437 | | (j) An analysis of the impacts to the coastal processes that support the health of the critical dune area. |
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| 438 | 438 | | |
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| 439 | 439 | | (k) A proposed vegetation plan to stabilize and control the impacted surface areas to prevent wind erosion and the blowing of surface material |
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| 440 | 440 | | |
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| 441 | 441 | | (l) A site plan including all of the following: |
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| 442 | 442 | | |
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| 443 | 443 | | (i) A topographic survey with 5-foot contour intervals. |
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| 444 | 444 | | |
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| 445 | 445 | | (ii) Existing physical and natural features. |
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| 446 | 446 | | |
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| 447 | 447 | | (iii) Proposed changes of land forms, such as terracing or excavation. |
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| 448 | 448 | | |
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| 449 | 449 | | (iv) The approximate location and type of existing and proposed surface drainage patterns. |
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| 450 | 450 | | |
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| 451 | 451 | | (v) (f) The general location and approximate dimensions of existing and proposed structures, utilities, roads, open space, vegetation management, spoils disposal, and any other uses. |
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| 452 | 452 | | |
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| 453 | 453 | | (g) Major proposed change of land forms such as new lakes, terracing, or excavating. |
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| 454 | 454 | | |
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| 455 | 455 | | (h) Sketches showing the scale, character, and relationship of structures, streets or driveways, and open space. |
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| 456 | 456 | | |
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| 457 | 457 | | (i) Approximate location and type of proposed drainage, water, and sewage facilities. |
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| 458 | 458 | | |
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| 459 | 459 | | (j) Legal description of property. |
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| 460 | 460 | | |
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| 461 | 461 | | (k) A physical description of the site, including its dominant characteristics, its vegetative character, its present use, and other relevant information. |
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| 462 | 462 | | |
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| 463 | 463 | | (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. |
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| 464 | 464 | | |
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| 465 | 465 | | (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. |
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| 466 | 466 | | |
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| 467 | 467 | | 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: |
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| 468 | 468 | | |
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| 469 | 469 | | (a) Determine whether the requirements of the zoning ordinance have been met and whether the plan is consistent with existing laws. |
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| 470 | 470 | | |
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| 471 | 471 | | (b) 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. |
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| 472 | 472 | | |
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| 473 | 473 | | (1) The department may make minor revisions in a permit issued under this part if all of the following apply: |
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| 474 | 474 | | |
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| 475 | 475 | | (a) The use is in compliance with the permit and this part. |
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| 476 | 476 | | |
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| 477 | 477 | | (b) The minor revisions are requested by the permittee in writing. |
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| 478 | 478 | | |
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| 479 | 479 | | (c) The request is accompanied by a fee of $500.00, or, for uses that are within a minor project category or general permit category, $100.00. Fees under this subdivision are subject to adjustment as provided in section 35304(5). |
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| 480 | 480 | | |
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| 481 | 481 | | (d) If the request is for a transfer of the permit, the request is accompanied by a written agreement between the current and new owners or operators containing a specific date for transfer of responsibility, coverage, and liability under the permit. |
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| 482 | 482 | | |
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| 483 | 483 | | (2) The department shall approve or deny the request within 20 business days. However, if the only minor revision requested is a transfer under subsection (4)(a), the department shall approve or deny the request within 10 business days. If the department fails to approve or deny the request within the time required by this subsection, the department shall refund the fee. |
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| 484 | 484 | | |
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| 485 | 485 | | (3) If the department determines that none of the changes requested are minor revisions, the department shall retain the fee but the permittee may apply the fee toward a new permit for a use at that site. |
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| 486 | 486 | | |
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| 487 | 487 | | (4) As used in this section, "minor revision" means either of the following with respect to a permit issued under this part: |
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| 488 | 488 | | |
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| 489 | 489 | | (a) A transfer. |
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| 490 | 490 | | |
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| 491 | 491 | | (b) A revision that does not increase the overall impact of a use on critical dunes and that is within the scope of the use as described in the original permit. |
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| 492 | 492 | | |
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| 493 | 493 | | Sec. 35323. A If 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, the rebuilding or replacement of the structure or use 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 all of the following apply: |
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| 494 | 494 | | |
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| 495 | 495 | | (a) The structure or use was lawful at the time it was constructed or commenced. A replacement structure and its use may differ from that which was destroyed if it |
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| 496 | 496 | | |
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| 497 | 497 | | (b) The structure does not exceed in size or scope that which was destroyed. |
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| 498 | 498 | | |
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| 499 | 499 | | (c) The structure does not vary from its prior use. |
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| 500 | 500 | | |
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| 501 | 501 | | Sec. 35324. Federally owned land, to To the extent allowable by law, and state federally owned land within critical dune areas shall be managed by the federal or state government , respectively, in a manner that is consistent with the model zoning plan.this part. |
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| 502 | 502 | | |
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| 503 | 503 | | Sec. 35326. The department may promulgate rules to implement this part under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. |
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| 504 | 504 | | |
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| 505 | 505 | | Enacting section 1. Sections 35307, 35311a, 35311b, 35317, 35320, 35322, and 35325 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.35307, 324.35311a, 324.35311b, 324.35317, 324.35320, 324.35322, and 324.35325, are repealed. |
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