DIVISION 1. GENERALLY
Sec. 13-46. Findings.
The township board finds that rapid growth and the increasing demands upon our natural resources have increased the potential for encroaching upon, polluting or eliminating many of its wetlands and watercourses which, if preserved and maintained, constitute important physical, aesthetic, recreational and economic assets to existing and future township residents.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-47. Purpose.
The purpose of this article is to provide for:
(1) The protection, preservation, maintenance and use of township watercourses and wetlands, in order to minimize disturbance and damage to them, including: damage from erosion, turbidity or siltation; a loss of fish or other beneficial aquatic organisms, wildlife and vegetation; and/or the destruction of natural habitat thereof.
(2) The protection of the township's potable fresh water supplies from drought, overdraft, pollution or mismanagement.
(3) Reduced property damage or other risks associated with flood condition; and/or reduce financial burdens imposed upon the township by improper use of lands subject to periodic flooding; to preserve the location. character and extent of natural drainage courses.
(4) The protection of individual and community riparian rights.
(5) The enforcement of this article and the coordination of the enforcement of appropriate local, county and state ordinances and/or statutes, with the corresponding county or state agency including, but not limited to the Michigan Department of Environmental Quality and the Oakland County Drain Commission.
(6) The requiring and granting of use permits for activities in those areas designated as wetlands and watercourses.
(7) Penalties for the violation of this article.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-48. Validity.
The authority for the adoption of this article is provided by Chapter I, Article III of state PA 451 of 1994, the Natural Resources and Environmental Protection Act. The township board declares that this article is essential to the health, safety and general welfare of the people of the township and is based upon reasonable standards.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-49. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Activity shall mean any use, operation, development or action caused by any person, including, but not limited to, constructing or erecting buildings or other structures; depositing or removing material; dredging; ditching; draining or diverting water, pumping or discharging surface water; grading; land balancing or excavation.
Bottomland shall mean the land area of a lake, stream or watercourse which lies below the ordinary high water mark and which may or may not be covered with water.
Channel shall mean the geographical area within the natural or artificial banks of a watercourse required to convey continuously or intermittently flowing conditions.
Deposit shall mean to fill, place or dump.
Discontinuance shall mean cessation of present use.
Drainage course shall mean any artificial construction to control runoff so as to prevent flooding of or creation of floodlands.
Locate shall mean to construct, place, insert or excavate.
Material shall mean soil, sand, gravel, clay, peat, debris and refuse, or any other material, organic or inorganic.
Minor projects shall mean a proposed activity or activities that will cause only minimal adverse environmental effects when performed separately, and that will have only minimal cumulative adverse effects on the environment.
Natural obstruction shall mean any rock, tree, gravel or other natural matter that is an obstruction, and has been located in a floodway by a nonhuman cause.
Nonconforming location shall mean location of an operation, obstruction or structure which lawfully existed upon the waters or bottomlands as of November 19, 1986, and which does not conform to the requirements of this article.
Obstruction shall mean any artificial obstruction which may impede, retard, change flow direction, volume or water level, either in itself or by catching or collecting debris carried by such water, or that is placed where the natural flow of the water would carry the same downstream to the damage or detriment of either life or property.
Official map shall mean the official wetland and watercourse map of the Charter Township of Milford.
Operation shall mean depositing or engagement in any construction, use or a combination thereof, which in any way modifies the condition of the watercourses, wetlands or lands subject to this article, under section 13-52, as they exist on the effective date hereof.
Ordinary high water mark shall mean 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. On an inland lake which has a level established by law, it means the high established level. Where water returns to its natural level as a result of the permanent removal or abandonment of a dam, it means the natural ordinary high water mark.
Owner shall mean any person who has dominion over, control of, or title to an obstruction, natural obstruction or to wetland properties.
Person shall mean any individual, sole proprietorship, partnership, corporation, association, municipality, the State of Michigan, and any instrumentality or agency of this state, the federal government, or municipality, or other legal entity.
Precipitation shall mean the deposit on a property of rain, snow, sleet, hail or mist.
Remove shall include to dig, dredge, suck, pump, bulldoze, dragline, blast or otherwise displace lands.
Runoff shall mean surface discharge of precipitation to a watercourse or low area. Delayed runoff can occur from sudden warming after precipitation accumulated as snow and ice.
Seasonal shall mean any intermittent or temporary operation which occurs annually and is subject to interruption from changes in weather, water level or time of year and may involve annual removal and replacement of an operation, obstruction or structure.
Structure shall mean any assembly of materials above or below the surface of the land or water, including, but not limited to, houses, buildings, bulkheads, piers, docks, rafts, landings, dams or waterway obstructions.
Temporary shall mean a time period as specified in the use permit, or if unspecified, shall mean an uninterruptible time period of less than one year.
Upland shall mean the land area adjoining a lake, stream or watercourse, above the ordinary high water mark, uses for which are essentially nonaquatic.
Watercourse shall mean any waterway or other body of water having well-defined banks, including rivers, streams, creeks and brooks, whether continually or intermittently flowing, and lakes and ponds, and/or as shown on the official wetland and watercourse map.
Wetlands shall mean poorly drained and very poorly drained soils which are either covered with water, or on which the water table is at or near the surface for a considerable part of the year and which, by the nature of their surface and/or subsurface soil characteristics contribute to the factors which replenish the subsurface water supply. Upon observation under normal circumstances, these soils support a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, wet meadows, sloughs, potholes, river overflows, mud flats and natural ponds, and/or as shown on the official wetland and watercourse map.
(Ord. No. 147A, § 1, 11-21-01)
Cross references: Definitions and rules of construction generally, § 1-2.
Sec. 13-50. Rules of construction.
The following rules of construction apply to the text of this article:
(1) In a case of a difference of meaning or implication between the text of this article and any caption or illustration, the text shall control.
(2) Particulars provided by way of illustration or enumeration shall not control the general language.
(3) Ambiguities, if any, shall be construed in favor of protecting the resources indicated in section 13-52 et seq.
(4) Words used in the present tense shall include the future; and words used in the singular number shall include the plural; and the plural shall include the singular, unless the context clearly indicates the contrary.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-51. Nullification and conflict of authority.
Nothing in this article shall be interpreted to conflict with present or future state statutes on the same subject matter; conflicting provisions of this article shall be nullified to, but only to, the extent of the conflict. Moreover, the provisions of this article shall be construed, if possible, to be consistent with and in addition to relevant state regulations and statutes. The provisions of this article shall be held to be minimum requirements and shall be construed in favor of the township and shall not be deemed a limitation or repeal of any other powers granted by state statutes. This article shall not repeal, nullify or impair any existing easements, covenants or deed restrictions. However, where this article imposes greater restrictions, the provisions of this article shall prevail.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-52. Application of article.
Those wetlands subject to the regulatory terms of this article include:
(1) An inland lake or pond, or river or stream; and more than five acres in size.
(2) An inland lake or pond, or river or stream; and at least five acres in size, but not less than two acres if the township determines that protection of the area is essential to the preservation of the natural resources of the township from pollution, impairment, or destruction and the township has so notified the owner.
(3) Wetlands which are less than two acres in size which are determined by the township to be essential to preservation of the natural resources of the township, if these wetlands meet one or more of the following and the township has so notified the owner:
a. The site supports state or federal endangered or threatened plants, fish or wildlife as regulated by Section 36505, Part 365, Chapter I, Article III of state PA 451 of 1994, the Natural Resources and Environmental Protection Act.
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 wetland.
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 cycles and nursery grounds and sanctuaries for fish.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-53. Incorporated maps and map amendment procedures.
(a) The official wetland and watercourse map which designate the wetlands and watercourses in the township, including amendments that may be made from time and which are on file with the township, are incorporated into this article and made a part hereof by reference.
(b) Upon completion of an inventory map or upon a subsequent amendment of an inventory map, the township shall notify each record owner of property on the property tax roll of the township that the inventory maps exist or have been amended, where the maps may be reviewed, that the owner's property may be designated as a wetland on the inventory map, and that the township has an ordinance regulating wetland. The notice shall also inform the property owner that the inventory map does not necessarily include all of the wetlands within the township that may be subject to the wetland ordinance. The notice may be given by including the required information with the annual notice of the property owner's property tax assessment.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-54. Compliance.
No operation, structure or land shall hereafter be used, and no structure shall be located, extended, converted or structurally altered without full compliance with the terms of this article and other applicable regulations which apply to uses within the jurisdiction of this article.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-55. Penalties; enforcement.
(a) Any person violating any of the provisions of this article shall be guilty of a misdemeanor, and upon conviction therefore shall be fined up to $500.00 for each such conviction, or shall be punished by imprisonment for a period not to exceed 90 days for each offense, or by both such fine and imprisonment in the discretion of the court, together with the costs of such prosecution. Each day upon which such violation shall occur shall constitute a separate offense.
(b) Any use or activity in violation of the terms of this article is hereby declared to be a nuisance per se, and may be abated by order of any court of competent jurisdiction. The township board, in addition to other remedies, including those provided in subsection (c) of this section, may institute any appropriate action or proceeding to prevent, abate or restrain the violation. All costs, fees and expenses in connection with such action shall be assessed as damages and charged to the violator.
(c) In the event of a violation, the township shall have the power to order complete restoration of the wetland area involved by the person or agent responsible for the violation. If such responsible person or agent does not complete such restoration within the time specified in the order (not to exceed 18 months), the township shall have the authority to restore the affected wetlands to the prior condition wherever possible and the person or agent responsible for the original violation shall be held liable to the township for the cost of restoration.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-56. Liability for violation.
Any person violating the provisions of this article shall become liable to the township for any expenses or loss of damage occasioned by the township by reason of such violation. If it is determined by the township board that the effects of the violation can be repaired, the violator shall be liable for such repair.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-57. Public hearing for amendments.
The public hearings required for amendments to official maps and text shall be before the township planning commission. Notice of such public hearings shall be given by publishing in a newspaper of general circulation in the township at least ten days before the hearing. Prior to any hearing, copies of the proposed maps or proposed amendments thereto shall be available for public inspection by any citizen at the office of the township clerk. In lieu of sending and/or publishing copies of the proposed maps or amendments, reference may be made to the material on file with the township clerk. After the public hearing, a recommendation shall be submitted by the planning commission to the township board relative to the merits of the proposed amendments.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-58. Wetland determination disputes.
If, because of problems with scale or detail, there is any ambiguity as to whether a particular area is a part of a wetlands, that determination shall be made by the body or official reviewing the use or activity for that area. The map shall include the location of designated lakes, streams, drains and vegetative wetlands. The purpose of this map is to help identify major wetlands within the township. The wetlands map does not create any legally enforceable presumptions regarding whether property that is or is not included on the map is or is not in fact a wetland.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-59. Notice to department of natural resources.
The township shall notify the state department of environmental quality of the adoption of this article. The township shall enter into an agreement with the state department of environmental quality providing for the exchange of information and for the coordination of the granting of permits, as required by the Natural Resources and Environmental Protection Act, Act. No. 451 of the Public Acts of Michigan of 1994, as may be amended.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-60. Continuance of nonconforming uses.
Any operation, use, obstruction or structure existing at the time of the enactment or affected by subsequent amendment of this article, but not in conformity with its provisions, may be continued subject to the requirements of this chapter. The burden of proof of establishing the existence of such nonconforming use shall be upon the petitioner.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-61. Change of nonconforming use.
Any operation, use, obstruction or structure which does not conform to the provisions of this article or subsequent amendments may not be:
(1) Changed to another nonconforming location and/or operation.
(2) Reestablished after discontinuance for one year.
(3) Expanded except in conformity with this article.
(4) Rebuilt or repaired after damage exceeding 50 percent of the fair sales value of the structure immediately prior to damage, except in conformity with this article.
(Ord. No. 147A, § 1, 11-21-01)
Secs. 13-62--13-70. Reserved.
DIVISION 2. PERMITS
Sec. 13-71. Acts requiring permits.
Except as hereinafter provided in this division, it shall be unlawful for any owner or user to perform any of the following activities upon watercourses and/or wetland areas without obtaining a written permit, as established in this division:
(1) Deposit or permit to be deposited any material, including structures, into, within or upon any bottomland, watercourse or wetland area in a manner that would interfere with the natural condition of the watercourses or wetland.
(2) Remove or permit to be removed any material from a watercourse or wetland area.
(3) No structure of any kind, building, roadway, tennis court, paving, towers or stanchions, may be constructed upon bottomlands, watercourses or wetlands.
(4) Dredge, fill or otherwise alter the profile of bottomlands, watercourses or wetlands.
(5) Enlarge, diminish or alter a lake, stream or other naturally or artificially occurring waterway.
(6) Create, enlarge or diminish any natural or artificially constructed canal, channel, ditch, lagoon, pond, land or other waterway for navigation or any other purposes, whether or not connected to an existing lake, stream or watercourse.
(7) Construct, place, enlarge, extend or remove a temporary, seasonal or permanent operation or structure upon bottomlands, watercourses or wetlands.
(8) Construct, extend, enlarge or connect any conduit, pipe, culvert or open or closed drainage facility erected for the purpose of carrying storm water runoff from any site, or any other land use permitting discharge of silt, sediment, organic or inorganic materials, chemicals, fertilizers, flammable liquids or any substance producing turbidity, except through an interceptor, retention or settling basin, filter or treatment facility designed to control and eliminate the pollutant before discharge to any lake, pond, stream, watercourse or wetland.
(9) Construct, enlarge, extend or connect any private or public sewage or waste treatment plant discharge to any lake, pond, stream, water or drainage course or wetland except in accordance with the latest requirements of the county, state and federal regulations governing the improvement and maintenance of clean natural waters.
(10) Erect, enlarge, or operate a private or public marina.
(11) Pump surface waters for irrigation or sprinkling of private or public uses other than for individually owned single-family residences from lakes, ponds, rivers, streams, or waterways except when the waterway is wholly contained within the user's property.
(12) Drain, or cause to be drained, any water from a wetland.
(13) Any other activities which, upon review, conflict with the intent of this article.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-72. Permitted activities.
(a) Notwithstanding the prohibitions of section 13-71 of this article, the following activities are permitted within wetland areas without a permit, unless otherwise prohibited by statute, ordinance or regulation:
(1) Fishing, trapping or hunting.
(2) Swimming or boating.
(3) Hiking, horseback riding, bird watching or other similar recreational activities.
(4) Grazing of animals.
(5) Farming, horticulture, silviculture, lumbering and ranching activities, including plowing, irrigation, irrigation ditching, seeding, cultivating, minor drainage, harvesting for the production of food, fiber and forest products, or upland soil and water conservation practices. Wetland altered under this subdivision shall not be used for a purpose other than a purpose described in this subsection without a permit.
(6) Maintenance or operation of serviceable structures in existence on the effective date of this article or constructed pursuant to this article.
(7) Construction or maintenance of farm or stock ponds.
(8) Maintenance, operation or improvement which includes straightening, widening or deepening of the following which is necessary for the production or harvesting of agricultural products:
a. An existing private agricultural drain.
b. That portion of a drain legally established pursuant to the drain code of 1956, Act No. 40 of the Public Acts of 1956, as amended being MCL 280.1 to 280.630, which has been constructed or improved for drainage purposes.
c. A drain constructed pursuant to other provisions of applicable law and ordinance.
(9) Construction or maintenance of farm roads, forest roads or temporary roads for moving mining or forestry equipment, if the roads are constructed and maintained in a manner to assure that any adverse effect on the wetland will be otherwise minimized.
(10) Drainage necessary for the production and harvesting of agricultural products if the wetland is owned by a person who is engaged in commercial farming and the land is to be used for the production and harvesting of agricultural products. Except as otherwise provided in this article, wetland improved under this subdivision after the effective date of this act shall not be used for nonfarming purposes without a permit from the township. This subdivision shall not apply to a wetland which is contiguous to a lake or stream, or to a tributary of a lake or stream, or to a wetland which the township has determined by clean and convincing evidence to be a wetland which is necessary to be preserved for the public interest, in which case a permit shall be required.
(11) Maintenance or improvement of public streets, highways or roads, within the right-of-way and in such a manner as to assure that any adverse effect on the wetland will be otherwise minimized. Maintenance or improvement does not include adding extra lanes; increasing the right-of-way; or deviating from the existing location of the street, highway or road.
(12) Maintenance, repair or operation of gas or oil pipelines and construction of gas or oil pipelines having a diameter of six inches or less, if the pipelines are constructed, maintained or repaired in a manner to assure that any adverse effect on the wetland will be otherwise minimized.
(13) Maintenance, repair or operation of electric transmission and distribution power lines and construction of distribution power lines if the distribution power lines are constructed, maintained or repaired in a manner to assure that any adverse effect on the wetland will be otherwise minimized.
(14) Operation or maintenance, including reconstruction of recently damaged parts, of serviceable dikes and levees in existence on the effective date of this article or constructed pursuant to this article.
(15) Installation on lakes or ponds, for noncommercial use, of any type of dock, boat hoist, ramp, raft or other recreational structure which is placed in a lake and removed at the end of the boating season.
(16) Improvement or maintenance of the Huron River or its tributaries when such operations are organized or endorsed by the township and specifically intended to preserve natural resources. Such permitted activities shall include, but not be limited to:
a. Removal of materials which may cause diverted flows and bank erosion, including the removal of trees, brush and debris;
b. Bank stabilization projects which require minimal disturbance of existing conditions; and
c. Wildlife and aquatic habitat improvement projects.
(17) Operation and maintenance of existing dams and other water control devices, (H.C.M.A. re: Kensington Metropolitan Park; Camp Dearborn; Proud Lake Recreation Area; and Village of Milford) for temporary alteration or diversion of water levels or circulation for emergency maintenance or aquaculture purposes, if in compliance with state statutes.
(b) After the effective date of this article, but immediately prior to the approval of a state program under Section 404 of Title 4 of the Clean Water Act of 1977, 33 U.S.C. 1344, where a project solely involves the discharge of fill material subject to the individual permit requirements of Section 4040 of Title 4 of the Clean Water Act of 1977, 33 U.S.C. 1344, an additional permit shall not be required by this Act.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-73. Use permits required.
Pursuant to the terms of this division, all operations affecting the wetlands and watercourses of the township shall require the filing and approval of a use permit application and the issuance of a use permit.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-74. Submittal of application.
All use permit applications shall be completed in full using an application form supplied by the Michigan Department of Environmental Quality and be submitted to the township building department along with the following information:
(1) A detailed description and purpose of the proposed operation.
(2) The amount and type of material to be removed and/or deposited.
(3) A dimensional site plan showing the legal description, zoning classification (including zoning on adjacent parcels), existing features and the size and location of all parts of the proposed operation.
(4) Where removal, depositing or grading is proposed, an accurate topographical map of these disturbed areas should be drawn to scale not less than 1:360 (one inch equals 30 feet) and shall be prepared and certified by a registered surveyor or civil engineer. Preparation, by a surveyor or engineer, may be waived, if the township engineer or building inspector is satisfied that the map is of sufficient detail to meet the needs of the intent of this article. The topographical map shall contain:
a. Name and address of owner of record of the affected property and of the applicant, if other than the owner; location and dimensions of all boundary lines; names of the owners of record of adjoining properties and of properties directly across any road and of any properties that will be affected by the operation; graphic scale, north arrow and date.
b. Existing contour data for the entire property with a vertical interval of no more than five feet and vertical contours at an interval of no more than two feet for all areas to be disturbed by the proposed operation, extending for a distance of at least 50 feet beyond the limits of such areas. Indicated elevations shall be based on a United States Geological Survey datum.
c. Specifications of the extent of all areas to be disturbed, the depth to which removal or deposition operations are proposed and the angle of repose of all affected slopes.
d. An area map at a scale of not less than 1:2400 (one inch equals 200 feet) showing property lines, normal high water line boundaries and elevation, proposed changes in location and extent of existing wetlands, drainage and watercourses.
(5) Portions of the above may be waived if, in the opinion of the township building official, the application is of minor significance and sufficient to satisfy the intent of the article.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-74.1. Wetlands determination.
Any person requesting a permit from the township for an activity, such as, but not limited to, a building permit, site plan, preliminary plat, lot split or special use permit, landfill permit or soil removal permit, must also make application for a preliminary wetland determination as is authorized by Section 30308(2), Part 303, Chapter I, Article III of Sate Public Act 451 of 1994, the Natural Resource and Environmental Protection Act.
(1) Preliminary wetland determination: If the building official or another duly authorized representative of the township determines, after reviewing the official wetlands map, that the proposed activity may encroach into a wetland and is deemed not to be a minor project as defined herein, then a final wetland determination shall be required of the applicant before such a permit as referenced above can be accepted. If the building official or other duly authorized representative determines that the proposed activity clearly would not encroach into a wetland or watercourse, then a permit shall be issued provided the requirements of all other applicable ordinances are met. If the proposed activity is initially deemed by the building official to be a minor project, as defined herein, then an application may be accepted without requiring a final wetland determination.
(2) Final wetland determination: After the building official or other duly authorized representative has determined that the proposed activity may encroach into a wetland or watercourse and is deemed not to be a minor project, then the applicant shall arrange to have a final wetlands determination, completed by the township wetland consultant, chosen by the township planning commission, to delineate the precise boundaries of the wetland or watercourse, and which may be affected by the proposed activity. This does not preempt any responsibility of the applicant to also make application to the MDNR for a required wetland permit.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-75. Review of application.
(a) Upon receipt of a complete application and fee for a wetland permit, the township shall modify, approve or deny the application within 90 days after its receipt, in accordance with the following procedures:
(1) Upon receipt of a completed application and fee for a wetland permit, the township clerk shall immediately refer the application to the building department.
(2) The township building department or its consulting engineers shall review the submitted permit application to insure that all required information has been provided.
(3) If the building department determines that the project is a minor project, they shall issue an appropriate use permit within 30 days from the first date they reviewed the project.
(4) If the building department determines that the project is not a minor project, then a final wetland determination will be required.
(5) For all projects, other than minor projects, the planning commission shall hold a public hearing within 35 days from the date the planning commission receives the completed application and fees. Notice of such hearing shall be mailed by first class mail to property owners within 1,000 feet of the boundary of the property upon which the activity is proposed, which notice shall be sent at least ten days prior to the public hearing. A legal notice of the public hearing shall be published in a local newspaper not less than five nor more than 15 days prior to the public hearing. At the scheduled hearing, the planning commission shall consider the application, provide an opportunity for the applicant to address the planning commission, and provide an opportunity for interested persons to address the matter. The hearing may be adjourned from time to time, as deemed necessary by the planning commission, and, if it appears that impairment, pollution and/or destruction of a wetland or other natural resource may result, and that technical expertise is required, the planning commission may require an environmental statement, environmental assessment, or environmental impact study to be provided by the application, or may submit the application to its engineering consultant or other consultant as deemed appropriate for examination and investigation upon payment by the applicant of the monies projected by such engineer or other consultant to be reasonably necessary to make an examination and investigation of the application and provide a report thereon. The planning commission, within 35 days of the public hearing, shall make a report and recommendation to the township board.
(6) In the event the planning commission shall take no action within 35 days of the conclusion of the public hearing, then the application shall proceed to the township board which shall make a decision at its next regular meeting. The township board shall be prohibited from convening an additional public hearing beyond that previously held under subsection (5) above as part of its deliberations.
(b) Whenever a permit is under consideration, the township board may approve the permit, approve the permit subject to conditions, or deny the permit based upon findings of fact and may:
(1) Impose such conditions on the manner and extent of the proposed activity or use as are necessary to ensure that the intent of this article is carried out and that the activity or use will be conducted in such a manner as will cause the least possible damage, encroachment or interference with natural resources and natural processes within the watercourse and/or wetland area;
(2) Fix a reasonable time within which any wetland operation must be completed;
(3) Require the filing with the township clerk of a cash bond or irrevocable letter of credit, in such form and amount as determined necessary by the township to ensure compliance with the approved permit; and
(4) When the permit is granted by the board, the board shall send written notice of the granting of the permit to all persons who have submitted written comments on the application to the township.
(c) In reviewing the application, the planning commission and the township board may seek opinions and advise from experts who have special wetlands knowledge and who would submit their findings upon request. The applicant may be assessed fees, as established by resolution of the township board.
(d) Whenever a permit application is denied, the reasons for denial shall be transmitted, in writing to the applicant. The failure to supply complete information with a permit application may be reason for the denial of a permit.
(e) If the township does not approve or disapprove the permit application within 90 days of the receipt, the permit application shall be considered approved.
(f) The applicant for an approval required in conjunction with site plan review, site condominium review or subdivision approval shall, at the time of submission, elect to have the application processed under either subsection (1) or (2) as follows:
(1) The wetland application shall be reviewed immediately, either prior to or concurrent with the review of the site plan, plat, or other proposed land use submitted by the applicant, with the understanding that the land use review may not be completed at the time the decision is rendered on the wetland application. Election of this alternative may require a reopening of the wetland application if the land use approval is inconsistent with the wetland approval; or
(2) The wetland application shall be reviewed and acted upon concurrent with the review of the site plan, plat, or other proposed land use submitted by the applicant, and the 90-day review period limitation specified in Section 6(a) of Act 203 of the Public Acts of 1979, as amended, shall thereby be extended accordingly.
(g) A permit issued by the township board shall not be effective until ten days following the date of issuance.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-75.1. Criteria for approval.
(a) A permit for an activity listed in section 13-71 shall not be approved, unless the township determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and the activity is otherwise lawful.
(b) In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity. The decision shall reflect the township concern for the protection of natural resources from pollution, impairment and destruction. The following general criteria shall be considered:
(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 uses to which the area is suited, including the benefits the wetland provides.
(4) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed, including the impact of the ability of the area to store water, as well as its conveyance and replenishment functions.
(5) The probable impact on recognized historic, cultural, scenic, aesthetic, ecological or recreational values and on the public health or fish or wildlife, including their habitat.
(6) The size of the wetland being considered.
(7) The amount of remaining wetland in the general area, and the impact on the adjoining wetlands, drainage areas, and water table.
(8) Proximity to any waterway.
(9) Economic value, both public and private, of the proposed land change to the general area.
(10) The probably impact and degradation of both surface and ground water quality.
(11) The land use for which the property is zoned.
(12) Whether an unacceptable disruption to the aquatic resources will result from the proposed activity.
(c) A permit shall not be issued, unless the applicant also shows either of the following:
(1) The proposed activity is primarily dependent upon being located in the wetland.
(2) A feasible and prudent alternative does not exist.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-76. Conditions of issuance.
(a) All operations permitted or approved by use permits shall be conducted in such a manner as well cause the least possible damage and encroachment or interference with natural resources and natural processes within the wetlands and watercourses in the township.
(b) The township building department, upon issuance of a use permit, shall:
(1) Impose such conditions, on the manner and extent of the proposed operation, use, structure or use activity, as are required by the township board, or as necessary to insure that the intent of this article is carried out.
(2) Fix a reasonable time for the undertaking and/or completion of all operations.
(3) Require the filing with the township of a cash bond, performance bond or irrevocable letter of credit, in such form and amount as required by the township board, or as determined necessary by the township to insure compliance with the use permit.
(c) The review and approval of a use permit application may be done concurrently with the review and approval of site plans, site condominiums, or subdivision plats. The township shall issue the use permit upon the final approval of the development proposal for which the use permit is requested.
(d) A copy of the approved use permit, which contains the conditions of issuance, shall be posted on the site in clear view.
(e) Use permits, for seasonal operations, need not be renewed annually, unless otherwise stated in the use permit.
(f) Any change, which increases the size, scope, use or hours of operation, must be examined as a new use permit application.
(g) Any temporary, seasonal or permanent operation, which is discontinued for one year, shall be terminated and the use permit automatically voided.
(h) A use permit shall be obtained prior to the issuance of building permits necessary for construction.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-77. Fees.
Fees for permits and/or special consultants shall be established by, and may be changed from time to time, by resolution of the township board. All fees shall be paid at the time of application to the township and in such a manner as the township board shall direct.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-78. Protection of wetlands and watercourses during and after construction.
Any applicant who has received a permit under this article shall comply with the following in connection with any construction or other activity on the property for which the permit has been issued:
(1) Maintain soil erosion control structures and measures, including, but not limited to, silt fences, straw bale berms and sediment traps.
(2) Identify clearly, through staking or other means of acceptable to the township, the location of wetlands or watercourses on the subject site so that such locations are visible to all construction workers. The visible identifications of wetlands or watercourses shall be in place prior to the grading of any land or issuance of any construction permit.
(3) Assure that there is no encroachment of equipment or earth moving activities into wetlands or watercourses.
(4) Prominently display at the site a copy of the use permit or other evidence that a permit has been obtained.
(5) The owner shall allow township representatives to enter and inspect the premises periodically throughout the duration of the activity.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-79. Performance assurance.
Prior to the issuance of the wetlands permit, the applicant shall provide the township with a cash deposit, certified check, irrevocable letter of credit or performance bond in an amount equal to 100 percent of the value of the permitted work (as determined by the township) to assure the township that soil erosion and wetland preservation efforts will be undertaken in accordance with the approved plans. These assurances shall run to the township and shall be forfeitable by its terms and conditions automatically 15 days after the township has provided notice to the applicant, either by personal delivery, certified mail or first class mail, that the requirements of the plan have not been complied with and that failure to proceed poses harm to the protected wetlands. If the applicant fails to perform within the 15-day period, the value of the assurance shall be automatically transferred to the township or otherwise be enforceable by the township by any means available. Thereafter, the township shall be authorized to go onto the property and complete the construction in accordance with the requirements of the approved plans. In the case of the deposit, certified check or the irrevocable letter of credit, the amount on deposit may be reduced as the work progresses, provided that at times the deposit or letter of credit amount is sufficient in the estimation of the township to assure the completion of the approved work. If the assurance does not sufficiently cover the cost of implementing the necessary improvements as determined by the township, the applicant will be responsible for reimbursing the township for any and all costs incurred in completing the work.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-80. Emergency remedy.
If, during the course of construction under a wetlands permit, an applicant takes action or through a lack of action threatens the function of a wetland or watercourse area and fails to remedy the condition within a reasonable period of time, as determined by the township, the township shall be permitted to enter the property of the applicant to take remedial action to alleviate the threat. The applicant will be subject to reimbursing the township for any and all expenses incurred by the township in remedying the condition. A stop work order shall be issued and remain in effect until the time the township is reimbursed for any remedial action.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-81. Denial of wetland use permit; request for reevaluation of fair market value; judicial review; right to institute civil proceedings.
(a) A land owner may request a reevaluation of affected property for assessment purposes to determine its fair market value under the use restriction if a permit is denied by the township for a proposed wetland use. A land owner may protest and appeal that determination, action or inaction pursuant to the General Property Tax Act, Act 206 of the Public Acts of 1893, being MCL 211.1 to 211.157.
(b) Any person who is aggrieved by a determination of the township board in its decision in connection with a request for a permit may request an appeal to the township board of appeals in accordance with the rules of procedure and notification requirements provided in the Township Zoning Act, Act. No. 184 of the Public Acts of 1943, being MCL 125.288 to 125.293.
(c) If a permit application is aggrieved by the determination, action or inaction by the township regarding the issuance of a permit, that person may seek judicial review in the same manner as provided in the Administrative Procedures Act, Act No. 306 of the Public Acts of 1969, being MCL 24.201 to 24.238.
(d) This section does not limit the right of a wetland owner to institute proceedings in any circuit of the circuit court of the state against any person when necessary to protect the wetland owner's rights.
(Ord. No. 147A, § 1, 11-21-01)
Sec. 13-82. Mitigation.
(a) Mitigation under this article shall be permissible only in an instance where it is determined that if a permit is not issued there would be no viable use of the property. Mitigation shall not be permissible when it is feasible and prudent to avoid impacts on the wetlands and concurrently make viable use of the property. A finding shall be made that all feasible and prudent efforts have been made to analyze a use of the property without the necessity of the issuance of a permit which would require mitigation.
(b) If mitigation is permissible, as specified under subsection (a) above, the township board may require mitigation as a condition to the issuance of a permit.
(c) Mitigation shall be designed to remove an impairment to the wetland benefits, to mitigate the impact of a discharge of fill material, or otherwise improve the water quality. Mitigation may be designed for the improvement of the existing wetland resources or the creation of new wetland resources to offset wetland resources lost as a result of the proposed project.
(d) As part of the authorization or direction of mitigation, financial assurances may be required in order to ensure that mitigation is accomplished as specified by the permit conditions, and that the mitigation remains successful for a reasonable period of time in the future.
(e) The mitigation plan shall be prepared by a qualified wetland consultant retained by the applicant and shall be reviewed by the township's wetland consultant utilizing the monies escrowed for such purpose by the applicant.
(f) If the township board determines that it is practical to replace the wetland resource values which will be unavoidably impacted, the following criteria shall be utilized when reviewing the applicant's mitigation proposal:
(1) Mitigation shall be provided on-site where practical and beneficial to the wetland resources.
(2) If on-site mitigation is not practical and beneficial to the wetland resources, mitigation shall be provided in the immediate vicinity of the permitted activity where practical and beneficial to wetland resources. When possible, this means within the same watershed within the township as the location of the proposed project.
(3) Only when it has been determined that mitigation as specified in subsections (1) and (2) above would be inappropriate and impractical may mitigation be considered elsewhere.
(4) Any proposal shall ensure that, upon completion, there will be no net loss to the wetland resources.
(5) The proposal shall give consideration to replacement of the predominant functional values lost within the impacted wetland.
(Ord. No. 147A, § 1, 11-21-01)

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