APPENDIX
F:
SAMPLE PLANNING & ZONING ENABLING ACTS WETLAND ORDINANCE
Following is explanatory text for a sample
wetlands and sensitive natural features ordinance that appeared in the August
1996 issue of Planning & Zoning News.
It is reproduced with permission of the Planning & Zoning Center, Inc.
REPORT AND
RECOMMENDATION FOR THE AMENDMENT OF WETLAND AND
ZONING ORDINANCES TO
CLARIFY REGULATORY INTENT
By Gerald A. Fisher, Attorney with Kohl, Secrest, Wardle, Lynch,
With Assistance from the
On
It was the unanimous consensus of
the Coalition members present at the meeting that the model ordinance
provisions previously disseminated by the Coalition in 1993 were fully
appropriate and defendable (see PZN, June
1993, p.13). In addition, it was the unanimous consensus of the Coalition
members present that it would be appropriate for communities to adopt
supplements to their wetlands ordinance and zoning ordinance for the purpose of
clarification relative to the two subjects addressed by the Attorney General.
With regard to the matter of natural
feature setbacks/buffer regulation, it would appear that the Attorney General
deliberated without the benefit of considering the strong, and perhaps
dispositive, impact of the following on the issue:
1. In
the Michigan Constitution, Article 7, Section 34, there is a directive that the
provisions of law concerning counties, townships, cities and villages shall be
liberally construed in their favor.
2. In
the Michigan Constitution, Article 4, Section 52,
3. The
Michigan Supreme Court in Hess v Charter
Township of West Bloomfield 439 Mich 550 (see PZN, July 1991, p.6), has held that the zoning enabling acts
represent legislation intended to carry out the constitutional directive of
Article 4, Section 52, of the Michigan Constitution to conserve natural
resources (which include wetlands).
4. In the Wetland Act (now codified
as Part 303 of the NREPA) the Legislature specifically and expressly states
that: "This part (of the act) shall
not be construed to abrogate rights or authority otherwise provided
bylaw", i.e., municipalities retain the right to protect wetlands
under other applicable law. Other
applicable law, according to the Michigan Supreme Court, interpreting Article
4, Section 52, of the Michigan Constitution, includes the zoning enabling acts.
Thus, it would appear to be quite
clear that a municipality may include within a zoning ordinance a requirement
for a setback or buffer from a wetland in order to protect natural
resources. Moreover, the Attorney
General has expressed agreement that zoning setbacks or buffers from wetlands
may be required for purposes other than the protection of wetlands. The amendment below spells out language
which clarifies the other purposes for regulating wetland setbacks or
buffers. Also, please recall that
there is the option to require a setback from other natural features.
With respect to the regulation of
wetlands which are two acres or less in area, the earlier model ordinance
language required an applicant to submit data and analysis. The model ordinance language was very
careful not to place a burden of proof upon the property owner. Nonetheless, in order to remove any
doubt on this subject, the amendment below expressly addresses the matter of
burden of proof.
MODEL LANGUAGE FOR
ORDINANCE AMENDMENT
I. Wetland
Ordinance – Regulation of Wetlands Two Acres or Less
The following amendments may be incorporated as part of the
wetland ordinance relative to regulation of noncontiguous wetlands less than
two acres in area (underlining refers to language to be added to earlier model
language printed in June 1993 PZN, and
strike-out language to be deleted):
1. A permit
shall be approved with respect to a noncontiguous wetland less than two acres
in area unless the municipality determines that the wetland is essential to the
preservation of the natural resources of the municipality. It shall not be the burden of the
property owner to prove that the wetland is not essential to the preservation
of the natural resources of the
municipality.
2. All
noncontiguous wetland areas of less than two acres which appear on the wetlands
inventory map, or which are otherwise identified during a field inspection by
the municipality, shall be analyzed for the purpose of determining whether such
areas are essential to the preservation of the natural resources of the
municipality. If there is to be a
denial of a permit to dredge, fill, construct, or otherwise undertake an operation,
in a noncontiguous wetland area of less than two acres, then, on the basis of
data presented by the applicant, or supplemental data gathered by or
on behalf of the municipality, findings shall be made in writing and given
to the applicant stating the basis for the determination that such wetland is
essential to preservation of the natural resources of the municipality. In order to make such a determination,
there shall be a finding that one or more of the following exist within such
wetland:
(a) The
site supports state or federal endangered or threatened plants, fish, or
wildlife appearing on a list specified in Section 6 of the Endangered Species
Act of 1974, Act No. 203 of the Public Acts of 1974, being Section 299.226 of
the Michigan Compiled Laws.
(b) The
site represents what is identified as a locally rare or unique ecosystem.
(c) The
site supports plants or animals of an identified local importance.
(d) The
site provides groundwater recharge documented by a public agency.
(e) The
site provides flood and storm control by the hydrologic absorption and storage
capacity of the wetlands.
(f) The
site provides wildlife habitat by providing breeding, nesting, or feeding
grounds or cover for forms of wildlife, waterfowl, including migratory
waterfowl, and rare, threatened, or endangered wildlife species.
(g) The
site provides protection of subsurface water resources and provision of
valuable watersheds and recharging groundwater supplies.
(h) The
site provides pollution treatment by serving as a biological and chemical
oxidation basin.
(i) The
site provides erosion control by serving as a sedimentation area and filtering
basin, absorbing silt and organic matter.
(j) The
site provides sources of nutrients in water food cycles and nursery grounds and
sanctuaries for fish.
3. The date
which must be submitted by the applicant for purposes of making the In connection with the
determination whether the wetland is essential to the preservation of the
natural resources of the municipality, shall include the property owner may make an election and response under
subparagraph (a) or (b), below, relative to each noncontiguous wetland area
less than two acres:
(a) In
lieu of having the municipality or its consultant proceed with the analysis and
determination, the property owner may acknowledge that one or more of the
criteria in subparagraphs 2(a) through 2(j), above, exist on the wetland in
question, including a specification of the one or more criteria which do exist;
or
(b) An analysis prepared by the applicant's
qualified wetlands consultant, with respect to each criterion in Paragraphs
2(a) through 2(l), detailing An
election to have the municipality or its consultant proceed with the analysis
on whether each of the criterion in Paragraphs 2(a) through 2(j) exist or
do not exist in the wetland in question, including specific reasons for the
conclusion in respect to each criterion.
II. Zoning
Ordinance Amendment – Natural Feature Setback Regulation
The following amendment may be adopted as part of the
separate article of the zoning ordinance enacted to regulate natural (or
environmental) feature setbacks:
1. Intent and Purpose
It is the intent of this article to require a minimum
setback from natural features, and to regulate property within such setback in
order to:
a. Prevent
physical harm, impairment and/or destruction of or to a natural feature. It has been determined that, in the
absence of such a minimum setback, intrusions in or onto natural features would
occur, resulting in harm, impairment and/or destruction of natural features
contrary to the public health, safety and general welfare.
b. Achieve
the following objectives in relation to setback areas:
(1) Protect
unique wildlife habitat and habitat transition, including, without limitation,
feeding, nesting, resting and traveling areas for numerous animals.
(2) Protection
of surface water run-off and water quality for pollution prevention purposes,
and assistance in beneficial water recharge for drinking, irrigation and other
purposes.
(3) Provide
water storage area in storm events.
(4) Provide
areas for recreational or other functional uses which are unique due to
geographic relationship to natural feature.
(5) Preserve
aesthetic views and areas for the enjoyment of natural resources.
(6) Preserve
threatened and endangered species habitat, including upland species.
(7) Reduce
the need for on-site and off-site stormwater storage capacity based upon the
availability of a greater area of absorption and a smaller impervious area.
(8) Stabilize
and protect soil resources, including the prevention of erosion and prohibition
of loss due to moving water resulting in destruction of upland, structures and
infrastructure on the upland, and prevention of the alteration of the course of
moving waters.
This regulation is based on the police power, for the
protection of the public health, safety and welfare, including the authority
granted in the Zoning Enabling Act.
It is the purpose of this article to establish and preserve minimum setbacks from natural
features in order to recognized and make provision for the that
there is a special relationship, interrelationship between
natural features and the adjoining upland in and terms of: Spatial
relationship; interdependency in terms of physical location, plant species,
animal species and an encouragement of diversity and richness of plant and
animal species; overland and subsurface hydrology; water table; water quality;
erosion or sediment deposition.
2. Regulation
A natural feature setback shall be maintained in relation to
all areas defined in this ordinance as being a "natural feature,"
unless, and to the extent, it is determined to be in the public interest not to
maintain such a setback.
3. Definition of "Natural
Feature"
A "natural feature" shall
mean a wetland, and shall mean a watercourse.
4. Authorization and Prohibition
(a) The
natural feature setback shall be an area or feature with boundaries and
limitations determined in accordance with the standards and provisions in this
article in relation to respective types of natural features.
(b) In
conjunction with the review of plans submitted for authorization to develop
property or otherwise undertake an operation in or on, or adjacent to, a
natural feature, applicable natural feature setbacks shall be determined, and
authorizations and prohibitions established, by the body undertaking the plan
review.
(c) Within
an established natural feature setback, unless and only to the extent
determined to be in the public interest by the body undertaking plan review,
there shall be no: Deposit of any material, including structures; removal of
any soils, minerals and/or vegetation; dredging, filling or land balancing;
and/or constructing or undertaking seasonal or permanent operations. This prohibition shall not apply with
regard to those activities exempted from this prohibition, below.
(d) In
determining whether proposed construction or operations are in the public
interest, the benefit which would reasonably be expected to accrue from the
proposal shall be balanced against the reasonably foreseeable detriments of the
construction or other operation, taking into consideration the local, state and
national concern for the protection and preservation of the natural feature in
question. If, as a result of such a
balancing, there remains a debatable question whether the proposed project
and/or operation is clearly in the public interest, authorization for the
construction and/or operation within the natural feature setback shall not be
granted. The following general
criteria shall be applied in undertaking this balancing test:
(1) The
relative extent of the public and private need for the proposed activity.
(2) The
availability of feasible and prudent alternative locations and methods to
accomplish the expected benefits from the activity.
(3) The
extent and permanence of the beneficial or detrimental effects which the
proposed activity may have on the public and private use to which the area is
suited, including the benefits the natural feature and/or natural feature
setback provides.
(4) The
probable impact of the proposed construction and/or operation in relation to
the cumulative effect created by other existing and anticipated activities in
the natural feature to be protected.
(5) The
probable impact on recognized historic, cultural, scenic, ecological, or
recreational values, and on fish, wildlife and the public health.
(6) The
size and quantity of the natural feature setback being considered.
(7) The
amount and quantity of the remaining natural feature setback.
(8) Proximity
of the proposed construction and/or operation in relation to the natural
feature, taking into consideration the degree of slope, general topography in
the area, soil type and the nature of the natural feature to be protected.
(9) Economic
value, both public and private, of the proposed construction and/or operation,
and economic value, both public and private, if the proposed construction
and/or operation were not permitted.
(10) The
necessity for the proposed construction and/or operation.
5. Exemptions
If and to the extent the municipality is prohibited by its
ordinances and/or law from regulating the proposed activity in or on the
respective natural feature, regulation under this article shall be exempted, subject
to the following exceptions...
6. Application Form (To be inserted.)
7. Setback Standards
Unless otherwise determined by the body undertaking the plan
review, the following setbacks shall apply:
(a) A
25 foot setback from the boundary or edge of a wetlands as defined and
regulated in Ordinance No. ____ [If the municipality does not have a wetlands
ordinance, the following phrase may be inserted:... from a wetlands as defined
by Act 203 of the Public Acts of 1979, as amended Act 59 of the
Public Acts of 1995, Part 303 of the NREPA.]
(b) A
25 foot setback from the ordinary high water mark of a watercourse, i.e., from
a natural or artificial lake, pond or impoundment, river, stream or creek which
may or may not be serving as a drain as defined by Act 40 of the Public Acts of
1956, as amended, or any other body of water which has definite banks, a bed
and visible evidence of a continued flow or continued occurrence of water.
Graphic by John Warbach, Planning
& Zoning Center, Inc.