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APPENDIX K: SAMPLE HIGH RISK EROSION AREAS ORDINACE

BLUFFLINE VERSION – DEFINITIONS (pp 2-7), ORDINANCE (pp 8-18)

EROSION HAZARD LINE VERSION – DEFINITIONS (pp 20-25), ORDINANCE (pp 26 -38)

PROVIDED BY: MICHIGAN DEPARTMENT OF NATURAL RESOURCES, LAND & WATER MANAGEMENT DIVISION

DATE: FEBRUARY 1994

MODEL BLUFFLINE APPROACH

Following is model zoning ordinance language to regulate high risk erosion areas based on structure setbacks from the bluffline. This is the approach presently used in all Michigan communities with approved HREA ordinances.

The model bluffline ordinance sets forth definitions of 23 terms that are unique to the ordinance or which may be used differently than how the same term is used in the existing local zoning ordinance. For that reason, it is important to integrate these definitions into the local ordinance and ensure that there is no conflict between the definitions that follow and those already included in the local ordinance. Examples of such terms include "lot", "required setback distance", "setback line", and "nonconforming structure". Terms that will require special attention are "accessory structure", "permanent structure", "principal structure', "readily moveable structure" and "structure". If any of these terms are defined differently than those in the local ordinance, the following approaches could be considered to resolve the conflict:

1. change the existing ordinance definition to be the same as those that follow (do this only if it will not alter the meaning of those terms as applied in other contexts in the local ordinance).

2. add language to the existing ordinance that indicates these terms have the meaning ascribed only when applied to lots in a designated HREA and as regulated in Section _________ (the HREA section of the local ordinance).

3. slightly change the term and then use the sample definition for the new term (if this is done, be sure to also change the term accordingly throughout the sample ordinance and be sure to do a thorough search of the existing ordinance to be sure that the new term is not used elsewhere. For example, "accessory structure" could be changed to "appurtent structure". This is most easily accomplished using the search and replace function of a word processor).

Illustrations that accompany the definitions and the model ordinance language are intended to help clarify administration and would benefit all affected landowners if included in the local zoning ordinance. Communities are encouraged to adopt them as part of the model ordinance language.

There are commentary notes in [BRACKETS] that must be removed prior to adoption. These notes refer to directions for tailoring the model language to a specific community. In most cases they require filling in missing information, such as the community name. They also include important notes about considerations that must be addressed when adapting the model ordinance language to a particular community. They must all be removed prior to adoption. All defined words are italicized in the model ordinance language.

State of Michigan

Township of _________

Ordinance No. ________

HIGH RISK EROSION AREA OVERLAY ZONE

[BLUFFLINE VERSION]

DEFINITIONS

[Amend Section _____ by adding the following definitions:]

1) Accessory Structure: a building or other structure, the use of which is incidental to that of the main building or use of the land. The structure shall not have a permanent foundation and shall be constructed to be readily movable or removed. [To avoid conflicts with the existing ordinance, the term appurtent structure or incidental structure could be used instead.]

2) Bluffline: the line which is the edge or crest of the elevated segment of the shoreline above the beach which normally has a precipitous front inclining steeply on the lakeward side. Where there is no precipitous front indicating the bluffline, the line of continuous perennial vegetation may be considered the bluffline (see Figure 1).

3) High Risk Erosion Area: an area of shoreline which is determined by the Department of Natural Resources on the basis of studies and surveys to be subject to erosion and which is designated as such pursuant to the Shorelands Protection and Management Act, P.A. 245 of 1970, as amended.

4) Lot: a parcel of land, excluding any portion in a street or other right-of-way, of at least sufficient depth as to comply with the setback requirements provided for in this Ordinance. Such lot may consist of: (a) a single lot of record; (b) a portion of a lot of record; (c) any combination of complete and/or portions of contiguous lots of record; or (d) a parcel of land described by metes and bounds, provided that in no case of a lot division or combination shall the depth of any lot or parcel created, including residuals be less than that necessary to comply with the setback requirements of this Ordinance.

5) Lot of Record: a lot which is part of a subdivision and is shown on a plat or map thereof which has been recorded in the Office of Register Deeds for ________ [insert name of county] County prior to the effective date of this Ordinance or the effective date of the high risk erosion designation, whichever is earlier, or a parcel of land described by survey or metes and bounds which is the subject of a deed or land contract recorded in said office prior to said date.

6) Moveable Structure, Easily: An accessory structure which is smaller than two hundred twenty-five (225) square feet; is not built on a slab; does not have a permanent foundation; and is easily removable.

FIGURE 1

Illustration of Key Zoning Terms Used in the Bluffline Version of the Model High Risk Erosion Area Overlay Zone

7) Moveable Structure, Readily: a small permanent structure (greater than two hundred twenty-five square feet and less than three thousand five hundred square feet) which is designed, sited, and constructed to accomplish relocation at a reasonable cost relative to other structures of the same size and construction. Access to and from the site shall be of sufficient width and acceptable grade to permit the structure to be relocated. New construction and installations shall meet the following criteria to be considered readily moveable structures:

a) The buildings shall be on pilings, a basement, or crawl space. Except as noted below, a slab-on-grade foundation does not meet this criterion.

b) Above-grade walls shall be stud wall construction. Above-grade walls that are constructed of masonry, including stone walls, concrete poured or concrete block walls, and brick veneer walls do not meet this criterion.

Existing permanent structures shall be considered readily moveable structures if the cost of relocation landward of the required setback distance is not more than 25% of the replacement cost of the structure (including any added cost of land) or if the existing structure meets the criteria for new construction in this subdivision. A 1- or 2-car garage which is bolted to a slab foundation, which does not have living space within or above the structure, and which does not have plumbing or interior walls shall be considered a readily moveable structure if it meets the remainder of the requirements specified in this subdivision. Septic systems, tile fields, or other waste-handling facilities are not readily moveable structures.

8) Nonconforming Structure: a permanent structure which does not conform to the required setback distance at the time of high risk erosion area designation or which became nonconforming due to erosion or became nonconforming due to a change in the required setback distance. Permanent structures that are constructed in violation of these rules shall not be considered to be nonconforming structures.

9) Ordinary High Water Mark: the line between upland and bottomland which persists through successive changes in water levels below which the presence and action of the water is so common or recurrent that the character of the land is marked distinctly from the upland and is apparent in the soil itself, the configuration of the surface of the soil and the vegetation. Consistent with the Great Lakes Submerged Lands Act, P.A. 247 of 1955, as amended, the ordinary high water mark shall be deemed to be the following elevations above sea level, International Great Lakes Datum of 1985; for the following Great Lakes and connecting waterways: Lake Superior - 602.6 feet; Lakes Michigan and Huron - 580.5 feet; Lake St. Clair - 575.3 feet; and Lake Erie - 572.2 feet. (See Figure 2)

10) Parcel: a continuous area or acreage of land which is under the same ownership at the time of high risk erosion area designation.

11) Permanent Foundation: A foundation for a structure that includes all frost free foundations as regulated by the building code as well as concrete block, poured concrete, and slabs or other materials used to support the walls of a building, even if they do not extend down below the frost free line.

FIGURE 2

12) Permanent Structure: any 1 of the following structures that is erected, installed, or moved on a parcel of property:

a) A residential building.

b) A commercial building.

c) An industrial building.

d) An institutional building.

e) A mobile home.

f) Accessory and related buildings.

g) Septic systems.

h) Tile fields.

i) Other waste handling facilities.

A permanent structure shall be considered small if it has a foundation size of three thousand five hundred (3,500) square feet or less and less than five (5) individual living units. All other permanent structures shall be considered large. The term does not include recreational vehicles or travel trailers. The term also does not include accessory structures which have less than two hundred and twenty five (225) square feet, which are used for picnicking or storing of recreational or lawn equipment, and which are constructed in a manner that facilitates easy removal. The accessory structure shall not have a permanent foundation and shall not be used as a residential facility.

13) Principal Structure: the main building on a lot or parcel, including but not limited to, residential, commercial, industrial, institutional structures and mobile homes. In the high risk erosion areas described in this Ordinance, principal structure also includes septic systems, tile fields, any on-site waste handling facility, garages and any other building designed and intended for permanent use. [this definition may not be necessary since most ordinances already have one. if the existing ordinance has a comparable definition it could be dropped. please note however, that septic systems are treated as if they were a principal structure.]

14) Recession Rate: a quantitative measure of the landward movement of the zone of active erosion determined on the basis of the shoreland erosion studies conducted under P.A. 245 of 1970, as amended, and expressed in terms of an annual average rate.

15) Recreational Vehicle or Travel Trailer: a vehicle primarily designed and used as a temporary living quarters for recreational, camping or travel purposes, including a vehicle having its own motor power or a vehicle mounted on or drawn by another vehicle (Act 96, Michigan Public Acts of 1987, as amended).

16) Required Setback Distance: the least distance a permanent structure can be constructed from the bluffline without a special exception. [This could be called Required HREA Setback Distance if required setback distance is already used in the local zoning ordinance.]

17) Setback Line: the line which is the required setback distance landward of the bluffline and which is the lakeward limit for the construction of permanent structures without a special exception. [This could be called HREA Setback Line if setback line is already used in the local zoning ordinance.]

18) Shoreland: the land, water and land beneath the water which is in close proximity to the shoreline of Lake ___________ [insert name of great lake].

19) Shoreline: that area of the shorelands where land and water meet.

20) Structure: anything fabricated, constructed or erected which requires fixation or placement in, on, or around the ground or to another structure which is affixed or placed in or on the ground.

21) Substandard Lot or Parcel: also known as "nonconforming" lot or parcel. A lot or parcel of record or a lot or parcel which is described in a land contract or deed that is executed and delivered before the designation of a high risk erosion area and which does not have adequate depth to provide the required setback distance from the bluffline for a permanent structure. The term also means those lots which are legally created after the designation of a high risk erosion area and which have sufficient depth to meet setback requirements for permanent structures, but which subsequently become substandard due to erosion processes or become substandard due to a change in the required setback distance.

22) Shore Protection Structure: any structural or physical method used to control shoreland erosion processes. Shore protection structures include, but are not limited to, structures such as seawalls, revetments or bulkheads, and may also include any type of beach nourishment by filling.

23) Zone of Active Erosion: the area of the shoreland where the disturbance or loss of soil and substrate has occurred with sufficient frequency to cause unstable slopes or prevent vegetation of the area.

ARTICLE ____ HIGH RISK EROSION AREA OVERLAY ZONE [BLUFF LINE VERSION]

SECTION 1.00 AUTHORITY AND PURPOSE.

__________ [insert name of county, township, city or village], ________ [insert county name] County, Michigan under the authority granted in the __________ [insert reference to appropriate zoning enabling act; one of the following: county rural zoning enabling act, p.a. 183 of 1943, mcla 125.201 et seq.; city and village zoning act, p.a. 207 of 1921, mcla 125.581 et seq.; or the township rural zoning act, p.a. 184 of 1943, mcla 125.271 et seq.], as amended, and the Shorelands Protection and Management Act, P.A. 245 of 1970, as amended, enacts the standards contained herein to protect and regulate high risk erosion areas identified within the ___________ [insert county, township, city or village].

The purpose of this Article is to prevent the placement of structures in areas designated as high risk due to erosion consistent with the Shorelands Protection Management Act of 1970, as amended. The standards and requirements contained in this Ordinance, and zoning map, are intended to further the purposes of the Shorelands Protection and Management Act, P.A. 245 of 1970, as amended. It is furthermore, the intent of this Ordinance to [please note that these purposes are somewhat more expansive than p.a. 245 requires, but are the minimum necessary to justify the bluffline setback approach described in this sample ordinance.]:

1. Establish minimum required setbacks for principal and accessory structures, which, based on erosion studies prepared by the Department of Natural Resources, will reduce property loss and damage.

2. Minimize the economic hardships which individuals and __________ [insert name of county, township, city or village] may face in the case of property loss due to erosion.

3. Protect public health and safety from effects of shoreland erosion.

4. Protect water and beach quality.

5. Preserve bluff vegetation in order to help stabilize bluffs and slow erosion.

6. Provide for the administration of this Ordinance and to determine the powers and duties of the Zoning Board of Appeals as relates to this Section.

7. Prescribe penalties for any violation of the provisions of this Ordinance.

SECTION 2.00 AREA AFFECTED AND BOUNDARIES. The boundaries of those stretches of shoreland affected by this Ordinance shall be consistent with the affected properties described herein. This area is shown on the official ____________ [insert name of county, township, city or village] High Risk Erosion Zoning Map which is part of this Ordinance. A copy of the Zoning Map and text shall be filed in the office of the ______________ [insert county, township, city or village] and County Clerk. This area extends landward from the ordinary high water mark to the required setback line for permanent structures. The setback line is not a fixed line over time, it moves landward as erosion continues.

For the purpose of this Ordinance, the minimum required setback distance shall be measured landward from the bluffline and shall be construed as running parallel to the bluffline. In the event the bluffline recedes (moves landward), the setback line of the high risk erosion area shall also be construed as to have moved landward a distance equal to the bluffline recession.

The boundaries of the high risk erosion areas coincide with descriptions provided in the shoreland erosion studies of the Department of Natural Resources, and are as follows:

1. High Risk Erosion Area A - [insert written description of local designated high risk erosion areas, to coincide with attached hrea map].

2. High Risk Erosion Area B - [insert written description of local designated high risk erosion areas, to coincide with attached hrea map].

[example: the north end of the high risk erosion area shall be at the southern boundary of the township of wright (the section line separating sections 2 and 11) and the shoreline. the south end of the hgh risk erosion area in section 14, t11n, r16e, lies 520 feet south of the intersection of holmes road, extended, and the shoreline.]

SECTION 3.00 SETBACK REQUIREMENTS FROM BLUFFLINE. Within the boundaries of the high risk erosion areas established by this Ordinance, no permanent structure shall be located between the ordinary high water mark and the line defining the required setback distance indicated in Table 1 that follows.

1. The required setback distance provided for in this Ordinance shall be measured in a landward direction as a distance horizontal from and perpendicular to the bluffline at the closest point to the existing or proposed principal structure. For each high risk erosion area described in Section 2.00, the required setback for any principal structure shall be as follows:

Table 1 PERMANENT STRUCTURE SETBACKS

Required Setback Required Setback

Designated High Distance for Small Distance for all

Risk Erosion Area Readily Moveable Other Structures

Structures (30 year) (60 year)

Area A

1 ______ feet ______ feet

2 ______ feet ______ feet

Area B

1 ______ feet ______ feet

2 ______ feet ______ feet

Area C ______ feet ______ feet

Area D ______ feet ______ feet

Area E ______ feet ______ feet

2. Modification of the Required Setback Distance. A person who can document with acceptable engineering studies an annual average recession rate which differs from the Department of Natural Resources' recession rate data may be granted a modification of the setback requirement for principal structures by the Zoning Board of Appeals. Prior to any modification of the required setback distance, the applicant's engineering studies shall be sent to the Department of Natural Resources, who shall report to the Zoning Board of Appeals on the accuracy of the applicant's studies. The Zoning Board of Appeals shall only act upon requests for modification of the setback requirement after a determination has been made on the validity of the applicant's data by the Department of Natural Resources and only after the Zoning Board of Appeals has determined that such modification would not violate the spirit and intent of this Ordinance.

SECTION 4.00 GENERAL PROVISIONS.

1. The erection, relocation or reconstruction of a principal structure on any lot or parcel which, in whole or part, falls within the area affected by the Ordinance shall only be used upon receipt of a zoning permit from the Zoning Administrator pursuant to Section 8.00.

2. No lot or parcel shall hereafter be created, subdivided or otherwise established without sufficient depth to accommodate a principal structure in accord with the requirements of this Ordinance. Hereafter, all principal structures erected, and all structural alterations or relocation of existing permanent structures shall be in accord with the requirements of this Ordinance.

3. The erection, installation, movement, or enlargement of an accessory structure or a permanent structure on a parcel, any part of which falls within the area affected by this Ordinance (within a high risk erosion area), shall be constructed only after a permit has been issued by the Zoning Administrator of _____ [insert name of county, township, city or village]. An easily moveable structure is exempt from these permit requirements. [Delete this last sentence if your community does not wish to offer an exemption.]

4. The permit application shall contain all of the following information:

a) A legal description of the property.

b) A description of the proposed accessory and/or permanent structure.

c) A sketch of the proposed site to scale, which shows the location of the proposed accessory and/or permanent structure in relation to the location of the property lines and prominent features.

d) The signature, phone and address of the applicant in full.

e) Description of proposed site access.

f) Any existing or proposed shore protection devices. [please note: a permit from the department of natural resources is needed for all such devices.]

g) Proposed or existing location of utility lines, easements and/or right-of-ways.

h) Verification that the County Health Department and other state and federal permits, as appropriate have been applied for or obtained for the property.

i) Proof of property ownership (if the owner is not the applicant, then the legal interest in the land possessed by the applicant shall be revealed).

j) Inventory of significant existing on-site vegetation by general type and location.

5. A permit application to erect, install, or move a permanent structure in a designated high risk erosion area shall be approved if the proposed permanent structure meets or exceeds all of the following requirements:

a) The proposed permanent structure or addition is landward of the required setback line (see Section 3.00, Table 1).

b) Small permanent structures that are erected, installed, or moved into the area between the setback line and a distance twice the required setback distance shall be readily moveable structures, except for those small permanent structures located on parcels which do not have access of sufficient width and acceptable grade to allow for relocation.

c) A permanent structure shall not be erected, installed, or moved lakeward of the setback line in a high risk erosion area without a special exception as provided by Section 6.00.

d) The proposed permanent structure, meets the requirements of other applicable state laws, including but not limited to the provisions of the Sand Dune Protection and Management Act No. 222 of the Public Acts of 1976, as amended, being 281.651 et seq. of the Michigan Compiled Laws.

e) Review and approval of the design of small permanent structures shall be made to ensure the building is a readily moveable structure.

6. A permit application to make an addition to an existing permanent structure in a designated high risk erosion area shall be approved if the addition meets or exceeds the required setback distance and all other requirements of this ordinance for the district in which it is located.

7. Accessory or appurtenant structures shall not have a permanent foundation, shall be less than two hundred twenty-five (225) square feet, shall not be more than ten (10) feet in height and may be used for picnicking or storage of recreational or lawn equipment. The structure shall not be used as a residential facility. An accessory structure is exempt from the setback requirements for a permanent structure. Permitted accessory structures which are placed in high risk erosion areas shall be removed prior to erosion damage.

8. Any substandard lot of record or substandard lot described in a land contract or deed executed or delivered prior to the adoption of this Ordinance shall only be used if it meets the requirements of Section 6.00.

9. If a permanent structure is relocated, all construction materials, including the entire foundation, shall be removed and properly disposed of according to the terms of a permit issued as a part of the moving operation.

10. After May 1, 1992, the slope and height of a dune or bluff shall not be artificially altered to affect the setback requirement unless the alteration is in compliance with a permit issued pursuant to the provisions of Act No. 347 of the Public Acts of 1972, as amended, being 281.101 et seq. of the Michigan Compiled Laws, and Act No. 247 of the Public Acts of 1955, as amended, being 322.701 et seq. of the Michigan Compiled Laws, if the alteration or fill extends into the waters of the Great Lakes or below the ordinary high water mark elevation. [please note: the may 1, 1992 date is when the new hrea administrative rules took effect and apply even if local regulations have not been brought into compliance with the new rules.]

SECTION 5.00 MAINTENANCE AND RESTORATION OF NONCONFORMING STRUCTURES. The lawful use of any structure existing at the time in which this Ordinance is adopted may continue in the same manner and to the same extent although the location of the permanent structure does not conform with the provisions of this Ordinance. A nonconforming permanent structure shall not be repaired, restored, extended, enlarged or removed except in accord with the requirements that follow:

Section 5.01 Routine Maintenance and Remodeling. Routine repairs and maintenance work required to keep a nonconforming principal structure in sound condition are permitted. Remodeling of a nonconforming principal structure is permitted as long as the structure is neither enlarged or extended in a nonconforming manner. Addition of extra stories shall be construed as the expansion of a nonconforming use.

Section 5.02 Enlargements to Nonconforming Structures. The following exceptions can be made to accommodate enlargements to existing nonconforming structures upon review and approval of the _________ Zoning Board of Appeals per Section ____.

1. Additions to a readily moveable structure which is not in compliance with the required setback distance of a designated high risk erosion area shall be approved if all of the following provisions are complied with:

a) The existing building with the addition will meet the definition of a readily moveable structure.

b) The proposed addition does not reduce the permanent structure's distance from the bluffline.

c) The proposed addition and the existing permanent structure are not less than thirty (30) feet landward of the bluffline.

2. An addition to an existing small nonconforming permanent structure which is not a readily moveable structure shall be approved if, at the date of construction, the provisions of either subsection (a) or (b) of this Section and the provisions of subsection (c) of this Section are complied with as follows:

a) The total of all floor space added shall not exceed twenty-five percent (25%) of the foundation size of the permanent structure. The foundation size shall be determined as of the time the permanent structure became nonconforming. When the twenty-five percent (25%) limit on additions (including building up) has been reached, no further additions can be made for the remaining life of the structure. The addition shall not reduce the permanent structure's distance from the bluffline.

b) The addition shall meet the definition of a readily moveable structure and the addition shall be on the landward side of the original permanent structure. A special exception may only be granted if the property owner, as a condition agrees to relocate the readily moveable portion of the permanent structure to a location landward of the setback line when so ordered by the Zoning Board of Appeals. The Zoning Board of Appeals may make such an order only when the foundation of the existing structure is undermined by erosion.

c) The proposed addition and the existing structure is not less than thirty (30) feet landward of the bluffline.

Section 5.03 Restoration of Nonconforming Structures.

1. When a nonconforming structure is damaged by a force other than erosion, the Zoning Board of Appeals shall only authorize restoration if the Board determines that the structure will be restored in compliance with the following standards:

a) The cost of returning the principal structure to its original conditions shall be sixty (60) percent or less of the structure's precatastrophe replacement value. No structure damaged more than sixty (60) percent of its precatastrophe replacement value shall be restored. [please note: this is the standard from the old administrative rules. the new rules permit reconstruction up to 100% if it is a readily movable structure. a local government could retain the old standard (which is more consistent with most local nonconforming use standards) or could permit reconstruction if it were to be done as a "readily moveable structure". however, doing so would make that nonconforming use standard different from all others in the local zoning ordinance.]

b) The permanent structure, if rebuilt in its existing location, would be no less than twenty (20) feet landward of the bluffline.

c) The reconstructed building would be a readily moveable structure.

2. As a condition for approval of restoration plans, the Zoning Board of Appeals may require:

a) Measures which will aid in stabilizing the bluff other than the construction of erosion control devices.

b) The use of runoff or soil erosion control techniques to prevent any acceleration erosion which may occur during restoration of the structure.

c) The lawful disposal of all debris including the previous foundation resulting from the damage or from the restoration of a principal structure (such as construction materials) in a manner such that the debris poses no safety or health hazard.

d) Other conditions on the restoration of nonconforming principal structures, provided these conditions are consistent with the intent of this Ordinance and consistent with the promotion of the public health, safety and welfare.

3. If a building is more than sixty (60%) destroyed or declared a total loss for insurance purposes, the requirements for new permanent structures shall apply. [please note, that while local zoning often precludes reconstruction of a destroyed nonconforming structure, the dnr hrea rules allow reconstruction even if a structure is destroyed 100%.]

4. Determination of Replacement Costs. The precatastrophe replacement value of repairing damage to a nonconforming structure, excluding contents, damaged by a force other than erosion shall be made on the basis of an appraisal by a qualified individual designated by the Zoning Board of Appeals. The cost for such determination shall be born by the applicant.

SECTION 6.00 EXCEPTIONS ON NONCONFORMING PARCELS. The following exceptions can be made to the required setback distance upon review and approval of the _________ [insert name of county, township, city or village] Zoning Board of Appeals per Section____ . Any exception shall be the minimum required for the location of a permanent structure on a nonconforming parcel:

1. To erect, install or move a small readily moveable structure lakeward of the setback line on a nonconforming parcel provided the following are complied with [standards b and d below are especially important]:

a) If a sanitary sewer is not used, the septic system, tile field, or other waste-handling facility shall be located at least as far landward as the lakeward edge of the building.

b) The readily moveable structure shall be located as far landward of the bluffline as possible without violating another provision of this ordinance.

c) The readily moveable structure shall be designed and constructed in accordance with proper engineering standards and building moving restrictions applicable to the subject area. Review and approval of the design to ensure that the building is a readily moveable structure shall be completed prior to issuance of any local permits.

d) The readily moveable structure is not less than thirty (30) feet landward of the bluffline and is not located on a lakeward facing slope of sixty percent (60%) or more.

e) The readily moveable structure meets requirements of other applicable state laws, including but not limited to the provisions of the Sand Dune Protection and Management Act No. 222 of the Public Acts of 1976, as amended, being 281.651 et seq. of the Michigan Compiled Laws.

2. If a nonconforming parcel does not have access to and from the place where the structure is proposed to be located of sufficient width and acceptable grade to erect or move a readily moveable structure, or if the application is for a large permanent structure on a nonconforming parcel, a special exception shall be granted to utilize a shore protection structure in place of a portion of the required setback distance. The special exception shall be granted only if all of the following provisions are complied with:

a) If a sanitary sewer is not used, the septic system, tile field, or other waste-handling facility shall be located at least as far landward of the bluffline as the principal building.

b) The permanent structure shall be located landward of the bluffline as far as possible without violating another provision of this Ordinance.

c) The shore protection structure shall be designed to meet or exceed a twenty (20) year storm event at the site for small permanent structures and a fifty (50) year storm event at the site for large permanent structures. A professional engineer shall certify that the shore protection structure has been designed and will be constructed in accordance with these standards. If the shore protection structure is constructed in the waters of the Great Lakes or lies below the ordinary high water mark, a permit pursuant to the provisions of the Great Lakes Submerged Lands Act No. 247 of the Public Acts of 1955, as amended, being 322.071 et seq. of the Michigan Compiled Laws, shall be obtained for the shore protection structure.

d) The permanent structure shall be a minimum of thirty (30) feet from the shore protection structure. If the bluff or dune is unstable due to height, slope, wind erosion, or groundwater seepage, the _________ [insert name of county, township, city or village] with input from the DNR may require a setback of more than thirty (30) feet or an engineered bluff stabilization plan, or both. In areas of steep slopes greater than eighteen (18) percent, a greater setback may be necessary to provide access for maintenance equipment and a safe building site.

e) If the application is for a large permanent structure, the Zoning Board of Appeals shall require compliance with both of the following provisions:

1) The establishment of an escrow account to maintain the approved shore protection structure or bluff stabilization, or both. The amount required in the escrow account shall be reasonable and based on the project design.

2) Notice in the disclosure statement or deed that a portion of the required setback distance has been waived.

f) The proposed permanent structure meets the requirements of other applicable state laws, including but not limited to the provisions of the Sand Dune Protection and Management Act No. 222 of the Public Acts of 1976, being 281.651 et seq. of the Michigan Compiled Laws.

SECTION 7.00 SETBACK EXCEPTIONS FOR APPROVED SHORE PROTECTION. The following exceptions can be made to the required setback distance upon approval of the __________ [insert name of county, township, city or village] Zoning Board of Appeals per Section _____. Any exception shall be the minimum required for the location of a permanent structure or a nonconforming parcel. [please note: this section is optional. a community may not want to provide for such special exceptions. it is very difficult for a property owner to obtain the required shore protection approval from the dnr, so the possibility of obtaining such an exception is likely to be rare. it may be better to leave such exceptions strictly up to the dnr under their rules.]

1. A special exception shall be granted, and a portion of the required setback distance waived, for the installation of an approved shore protection structure if all of the following conditions are met.

a) A contract for perpetual care of the shore protection structure is agreed upon by the property owner or property owner's association and the ___________ [insert name of county, township, city or village]. The responsibility will be defined in a written agreement between the ________ [insert name of county, township, city or village] and the property owner(s). The local agency shall agree to perform maintenance or repairs to maintain the integrity of the shore protection structure. The local agency shall submit to the Department of Natural Resources a financial plan for maintaining the shore protection structure.

b) The shore protection structure is designed and constructed to meet or exceed a fifty (50) year storm standard. The design and construction shall be certified by a professional engineer. If the shore protection structure is constructed in the waters of the Great Lakes or lies below the ordinary high water mark, a permit pursuant to the provisions of Act No. 247 of the Public Acts of 1955, as amended, being 322.701 et seq. of the Michigan Compiled Laws, shall be obtained for the shore protection structure.

c) A favorable finding is made by the _________ [insert name of county, township, city or village] with input by the Department of Natural Resources (DNR), that a greater public good exists to support the use of a shore protection structure rather than a natural shoreline in terms of all of the following:

1) The preservation of fish and wildlife habitat.

2) The value to the entire community of a natural shoreline as opposed to the value to the entire community of additional development that is made possible by the shore protection structure.

3) The impact of the loss of sand movement along the shoreline.

4) The impact on erosion of land in the immediate area of the shore protection structure. Before making the finding, the __________ [insert name of county, township, city or village] shall hold a public hearing. Notice shall be sent to all riparians within three-hundred (300) feet of the proposed shore protection structure and to the Department of Natural Resources [great lakes shoreline section, land and water management division, p.o. Box 30028, lansing, mi 48909].

d) There is a minimum of thirty (30) feet from the shore protection structure to any permanent structure. If the bluff or dune is unstable due to height, slope, wind erosion, or groundwater seepage, the ___________ [insert name of county, township, city or village], with input from the DNR may require a setback of more than thirty (30) feet or an engineered bluff or dune stabilization plan, or both. In areas of steep slopes, a greater setback may be necessary to provide access for maintenance equipment and a safe building site. If the parcel has existing permanent structures which are less than thirty (30) feet from the proposed shore protection structure, there shall be sufficient access to permit the maintenance and repair of the shore protection structure.

e) Shore protection is already a common feature of the shoreline lying within one-thousand (1,000) feet of the proposed shore protection structure.

[The following Section 8.00 may be unnecessary as it may duplicate existing ordinance language. If so, it should be deleted. If it partially overlaps, the overlapping portions should be deleted, but the balance added to the existing ordinance.]

SECTION 8.00 ZONING ADMINISTRATION. An enforcement officer shall be duly appointed by the ________ [insert reference to governing body: county commission, township board or city/village council] to enforce this Ordinance and in addition thereto shall:

1. Issue a zoning permit when after review of proposed plans and an on-site inspection, it is determined that the proposed placement and design of a structure complies with the requirements of this Ordinance.

2. Issue violation notices requiring compliance within 30 days and initiate any other activities to abate violations as authorized by this Ordinance.

3. Maintain permanent and current records of this Ordinance, including all permits applied for, issued and denied, maintain the zoning maps and property descriptions, delineate affected areas, maintain records of application for variances, appeals and the decisions on these appeals by the Zoning Board of Appeals.

4. In the case of denying a zoning permit, the Zoning Administrator shall inform the property owner of the right to appeal and the conditions under which an appeal will be considered. The Zoning Administrator shall further inform the Zoning Board of Appeals and the Department of Natural Resources at the time an appeal is filed. Written notice of an exception request from the minimum required setback distance shall be given to the Department of Natural Resources at least 14 days prior to the hearing before the Zoning Board of Appeals. [please note: such notices should be mailed to the great lakes shorelands section, land & water management division, dnr, p.o. box 30028, lansing, mi 48909. also note that many hrea properties are also subject to regulation under the sand dune protection and management act. it is important that any local zoning permits, special exceptions and variances granted also comply with that act for properties subject to both state laws.]

SECTION 9.00 DISCLAIMER OF LIABILITY. The provisions of this Ordinance are considered the "minimum" necessary for reducing erosion hazards and property loss for a thirty (30) year period of recession for small permanent structures and a projected sixty (60) year period for large permanent structures or non-readily moveable structures based upon current engineering and scientific methods of study. Faster or slower rates of erosion may occur. Erosion rates may be increased by natural causes such as high lake levels or major storms, or by man-made causes such as the construction of erosion control devices or by increasing the amount of runoff from the land. Placing a structure landward of the required setback distance is not a guarantee or warranty of safety from erosion damage. Individual property owners concerned with erosion hazards are encouraged to consult with local building officials and personnel of the Department of Natural Resources to arrive at site design plans which may use a greater setback to maximize protection from erosion damage.

SECTION 10.00 RELATIONSHIP TO OTHER PERMITS. Approval of a permit does not exempt the applicant from complying with all other relevant statues, Ordinances, or rules and regulations.

SECTION 11.00 INTERPRETATION

In the interpretation and application of this Ordinance, all provisions shall be (a) considered as minimum requirements, (b) liberally construed in favor of the governing body and (c) deemed neither to limit nor repeal any other powers granted under State by adding the following definitions:

SECTION 12.00 SEPARABILITY. If any article, section, clause, provision or portion of this Ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, it shall be deemed separate and the remainder of this Ordinance shall not be affected thereby.

SECTION 13.00 VIOLATIONS - PENALTIES. It shall be unlawful for any person to commence building of any kind that is in violation of the terms of this Ordinance, and any violation shall be subject to the penalties herein prescribed. Any person violating any provision of this Ordinance shall upon conviction thereof, be punished by imprisonment for not more than ninety (90) days, or by a fine of not more than five hundred (500) dollars and the costs of prosecution, or by both in the discretion of the court. Each day that a violation exists shall constitute a separate punishable offense. The imposition of any sentence shall not exempt the offender from compliance with the requirements of this Ordinance. Violation of this Ordinance is hereby declared a nuisance per se and conviction under the penal provisions of this Ordinance shall not preclude proceedings to abate such nuisance.

SECTION 14.00 EFFECTIVE DATE

This ordinance shall become effective 30 days after publication.

Motion by:

Second by:

Yeas (roll call vote):

Nayes:

Date Adopted:

_________________________________

(Signature, Top Elected Official)

_________________________________

(Signature, Clerk)

MODEL EROSION HAZARD LINE APPROACH

Following is model zoning ordinance language to regulate high risk erosion areas based on structure setbacks from the erosion hazard line. This is a new approach included in the May 1992 administrative rules under the Shorelands Protection and Management Act.

The model bluffline ordinance sets forth definitions of 26 terms that are unique to the ordinance or which may be used differently than how the same term is used in the existing local zoning ordinance. For that reason, it is important to integrate these definitions into the local ordinance and ensure that there is no conflict between the definitions that follow and those already included in the local ordinance. Examples of such terms include "lot", "required setback distance", “setback line”, and "nonconforming structure". Terms that will require special attention are "accessory structure", "permanent structure", "principal structure", "readily moveable structure" and "structure". If any of these terms are defined differently than those in the local ordinance, the following approaches could be considered to resolve the conflict:

1. change the existing ordinance definition to be the same as those that follow (do this only if it will not alter the meaning of those terms as applied in other contexts in the local ordinance).

2. add language to the existing ordinance that indicates these terms have the meaning ascribed only when applied to lots in a designated HREA and as regulated in Section (the HREA section of the local ordinance).

Illustrations that go along with the definitions and the model ordinance language are intended to help clarify administration and would benefit all affected landowners if included in the local zoning ordinance. Communities are encouraged to adopt them as part of the model ordinance language. Since the erosion hazard line approach is new, and different from the bluff line approach, it will be critical that the illustrations (particularly Figures 1-4) be a part of any local zoning ordinance using this approach.