Act No. 177 of the Public Acts of Michigan of 2001 ("Act 177")[1] requires that zoned townships having a population of 1,800
or more and having undeveloped land zoned for residential development
must adopt provisions in their zoning ordinances known as "open space
preservation" provisions. Therefore, in accordance with the requirements
of Act 177, the provisions of this article are intended to permit
land, satisfying specified criteria, to be developed, at the option
of the landowner, with the same number of dwellings otherwise permitted
under existing ordinances, laws and rules on the entire land area;
but on a portion of the land, not exceeding 50%, while preserving
the remaining land, at least 50%, as permanent open space.
A.
Qualifying conditions. Land may be developed under the provisions
of this subsection, at the option of the landowner, if all of the
following conditions are satisfied:
(1)
The land shall be zoned RR Rural Residential/Agricultural or
R-1 Low Density Residential;
(2)
The zoning district in which the land is located shall permit
development at a density equivalent to two or fewer dwelling units
per acre, if the land is not served by a public sewer system; or shall
permit development at a density equivalent to three or fewer dwelling
units per acre, if the land is served by a public sanitary sewer system;
(3)
The development of land under this article shall not depend
upon the extension of a public sanitary sewer or a public water supply
system to the land, unless the development of the land without the
exercise of the clustering option provided by this article would also
depend on such extension; and
(4)
The open space preservation option provided shall not have previously
been exercised with respect to the same land.
B.
Permitted uses. Only those land uses permitted by the zoning district
in which the land is located shall be permitted on land developed
or used pursuant to the provisions of this article.
C.
Application and review procedure.
(1)
The application requirements and review procedures for land proposed to be developed pursuant to the provisions of this article shall be those stated in Article 22, governing site plans, except as otherwise provided in this subsection. If the open space preservation option is proposed as a platted subdivision, condominium or site condominium development, the applicant shall also submit all information required by this chapter, Chapter 275, Part 1, Subdivision of Land, or other Township ordinances for such type of land division or development.
(2)
In addition to the application materials required by Article 22, an application for the development of land under the provisions of this subsection shall also include the following:
(a)
A parallel plan prepared for the purpose of demonstrating the
number of dwelling units that could be developed on the land under
its existing zoning, if the open space preservation option was not
exercised. The parallel plan may be conceptual in nature but shall
include at least the following information:
[1]
Date, North arrow and scale, which shall not be
more than one inch equals 100 feet, and, in all cases, the scale shall
be the same as that utilized for the site plan illustrating the proposed
development using the clustering option permitted by this article.
[2]
Location of streets and driveways.
[3]
Location of all lots, illustrating lot area and
width of each lot to demonstrate compliance with the minimum requirements
of the applicable zoning district.
[4]
Location of stormwater retention or detention basins,
community sewage treatment systems and community water supply facilities
necessary to serve a development under the parallel plan and which
would not be located within any public road right-of-way or private
road easement, or on buildable lots.
[5]
The parallel plan shall illustrate all unbuildable
land, which shall include lakes, streams, detention ponds and other
wetlands, public utility easements, floodplains, slopes of 20% or
greater and other similar features which limit or prevent construction
of buildings or roads.
(b)
A copy of the conservation easement, plat dedication, restrictive
covenant, or other legal instrument that would run with the land and
that would have the legal effect of preserving in perpetuity the open
space required by this article in an undeveloped state. Such legal
instrument shall be reviewed by the Township Attorney prior to recording
and shall be subject to the approval of the Attorney, consistent with
the terms of this article. The legal instrument shall:
[1]
Indicate the proposed permitted use(s) of the undeveloped
open space.
[2]
Require that the open space be maintained in perpetuity
in an undeveloped condition, without buildings, structures or other
improvements, except such drainage improvements, utility lines, riding
trails, hiking trails, picnic areas, park or playground equipment,
agricultural structures or similar improvements that are approved
by the Planning Commission.
[3]
Require that the undeveloped open space be maintained
by parties who have an ownership interest in the undeveloped open
space.
[4]
Provide standards for scheduled maintenance of
the undeveloped open space, including necessary pruning and harvesting
of trees and new plantings.
(c)
A site plan for a proposed development using the open space preservation option shall include the following information, in addition to that required by Article 22 for preliminary site plans:
[1]
Date, North arrow and scale which shall not be
more than one inch equals 100 feet, and, in all cases, the scale shall
be the same as that utilized for the parallel plan.
[2]
The site plan shall clearly illustrate the portions
of the land that are proposed to remain in a perpetually undeveloped
state and the portions of the land that will be used for clustered
development.
[3]
The site plan shall indicate the total number of
acres of land that are proposed to remain in a perpetually undeveloped
state, the total number of acres of land that are proposed to be used
for clustered development, and the percentage of each as compared
to the total site acreage.
[4]
The site plan shall illustrate the location of
all proposed lots and proposed building envelopes and shall indicate
the lot area and width of each lot, and the proposed front, side and
rear yard building setbacks. The number of proposed dwelling lots
on the site plan shall not exceed the number of lots on the parallel
plan, as approved by the Planning Commission.
(3)
Determination of number of lots by Planning Commission. If the
Planning Commission determines the number of dwellings illustrated
on the parallel plan exceeds the number that could feasibly be developed
on the land under the existing zoning classification without the open
space preservation option, the applicant shall submit a revised site
plan for the open space preservation option reflecting the permitted
number of dwellings, as determined by the Planning Commission.
(4)
Standards for approval. If a site plan satisfies all requirements of Article 22, all requirements of this section, and all conditions of approval imposed by the Planning Commission, the Planning Commission shall approve the site plan. If the open space preservation option is proposed as a platted subdivision, condominium or site condominium development, the applicant shall also demonstrate compliance with all applicable requirements of this chapter, Chapter 275, Part 1, Subdivision of Land, or other applicable Township ordinances.
D.
Open space development requirements.
(1)
Minimum open space. At least 50%, but no more than 60%, of the
land proposed for development under the provisions of this subsection
shall remain in a perpetually undeveloped state (i.e., "open space")
by means of a conservation easement, plat dedication, restrictive
covenant, or other legal instrument that runs with the land, as approved
by the Planning Commission. The following areas shall not constitute
open space:
(a)
The area within all public street rights-of-way.
(b)
The area within all private street easements.
(c)
Any easement for overhead utility lines, unless adjacent to
open space.
(d)
The area within a platted lot, site condominium unit or metes
and bounds parcel occupied by a structure not permitted to be located
in open space.
(e)
Off-street parking and/or loading areas.
(f)
Golf courses, swimming pools, and clubhouses.
(g)
Detention and retention ponds.
(h)
Community drain fields.
(i)
50% of the area of lakes, streams, detention ponds, wetlands,
public utility easements, floodplains, slopes of 20% or greater, and
other similar features which limit or prevent construction of buildings
or roads.
(2)
Standards for open space. The following standards shall apply
to the open space required pursuant to this article:
(a)
A portion of the open space shall be reasonably usable by the
residents of the land for passive recreational uses, such as hiking
or picnicking, and may include a recreational trail, picnic area,
children's play area, greenway, linear park, an agricultural use or
other use which the Planning Commission determines is substantially
similar to these uses.
(b)
The open space shall be available for all residents of the development,
subject to reasonable rules and regulations, and shall be located
to provide reasonable access to all residents. Safe and convenient
pedestrian access points from the interior of the development shall
be provided. The open space may, but is not required to be, dedicated
for public use.
(c)
If the land contains a lake, stream or other body of water, the Planning Commission may require that a portion of the open space abut the body of water. Access to and the use of any body of water shall be subject to § 450-3.25 of this chapter.
(d)
Open space shall be located so as to preserve significant natural
resources, natural features, scenic or wooded conditions, bodies of
water, wetlands or agricultural land. If these types of land features
are not present on the land, then the open space shall be centrally
located, along the road frontage.
(e)
A portion of the open space shall be located along the public
street frontage abutting the land. The depth of this area shall be
at least 100 feet, not including public right-of-way, and shall be
left in its natural condition or be landscaped to help reduce the
view of homes from the adjacent roadway and to preserve the rural
character.
(f)
To the extent feasible, open space shall be linked with adjacent
open spaces, public parks, bicycle paths and pedestrian paths.
(g)
If any portion of the land proposed for development under the
open space preservation option is designated in the Township Master
Plan to contain a segment of the Township nonmotorized trail, a sufficient
area of the open space shall be located to accommodate the trail.
(3)
Structures within open space. Designated open space areas shall
not contain structures, except as may be specifically authorized by
the Planning Commission upon determining that the structure is accessory
to the function of the open space. Examples of structures that may
be authorized include park or playground equipment, gazebos, or agricultural
structures.
(4)
Compliance with zoning district. Development under the open
space preservation option shall comply with all applicable requirements
of this chapter and the zoning district in which the land is located,
except setback and area requirements, which may be modified to achieve
the purpose of preserving open space.
(5)
Uniform lot size. All residential lots in the developed portion
of the site shall be as uniform in area as reasonably practicable,
unless otherwise approved by the Planning Commission.
(6)
Building envelopes. The location and area of building envelopes
shall be established to achieve the intent and purpose of the zoning
district in which the land is located, maximize the available open
space, preserve existing natural features, and retain the rural character
of the Township to the extent possible.
(7)
Required frontage. Each lot shall have a minimum of 30 feet
of frontage measured at the road right-of-way or easement line.
(8)
Lot width. Each lot shall have a minimum width equal to at least
1/2 the width required for the zoning district in which the land is
located, unless otherwise approved by the Planning Commission.
(9)
Maximum number of lots. The development shall contain no more than the number of lots established by the parallel plan and approved by the Planning Commission. This number shall be further reduced to reflect the inclusion of nondwelling unit structures, if any, as described in Subsection D(11) below.
(10)
Nondwelling unit structures. Lots containing nondwelling structures,
such as a clubhouse and accessory building or related amenities, shall
be subject to all requirements of this subsection applicable to lots
containing dwellings and all other applicable requirements of this
chapter and other Township ordinances. However, the Planning Commission
may, in its discretion, permit the enlargement of a lot containing
a nondwelling structure to reasonably accommodate it.
(11)
Reduction in lots for nondwelling structures. If structures other than dwellings, as described in Subsection D(10) above, are constructed on a lot and are not located within a designated open space area, the number of dwelling lots permitted in the clustered portion of the land shall be reduced as follows:
(a)
The area of a lot or lots occupied by nondwelling structures
shall be calculated and then divided by the average area of the residential
lots proposed within the development. If this number is a fraction,
it shall be rounded up to the nearest whole number.
(b)
The number calculated under Subsection D(11)(a) shall be subtracted from the number of residential lots that could otherwise be permitted in the development based on the approved parallel plan. The resulting number shall establish the maximum number of residential lots permitted within the open space preservation development.
(12)
Perimeter lots. Notwithstanding any other provision of this
subsection, the Planning Commission may require that lots around the
perimeter of the open space preservation development be designed to
be compatible in size and setbacks with lots on adjacent properties.
(14)
Grading. Grading within the development shall comply with the
following requirements:
(a)
To preserve the natural appearance of the land, all graded areas,
cuts and fills shall be kept to a minimum. Specific requirements may
be placed on the area of land to be graded or to be used for building,
and on the size, height, and angles of cut-and-fill slopes and the
shape thereof. Retaining walls may be required.
(b)
All areas indicated as open space on the approved development
plan shall be undisturbed by grading, excavating, structures or otherwise,
except as permitted by the Planning Commission. Drainage improvements,
utility lines, trails, picnic areas, and similar recreational improvements
and amenities may be placed in open space areas if approved by the
Planning Commission.
(c)
Grading shall be planned and carried out to avoid erosion, pollution,
flooding or other adverse effects upon the subject land and nearby
land and waterways and to minimize the overall environmental impact
on the property due to loss of vegetation, slopes, natural features,
wildlife habitat, and views.
(15)
Private roads. Private roads within the development shall conform
to the private road requirements of this chapter.
(16)
Other laws and ordinances. The development of land under this
subsection is subject to all other applicable Township ordinances,
state and federal laws, rules and regulations, including, but not
limited to, rules relating to suitability of groundwater for on-site
water supply for land not served by a public water system, and rules
relating to the suitability of soils for on-site sewage disposal for
land not served by a public sanitary sewer system.
E.
Amendments to an approved plan. Changes to an approved site plan for an open space preservation development shall be processed in accordance with the provisions of § 450-22.12.
F.
Performance guarantees. The Planning Commission, in accordance with § 450-32.07, may require reasonable performance guarantees or other assurance deemed satisfactory in the circumstances and authorized by law.
G.
Time limits. Actual construction of the approved development shall have commenced and proceeded meaningfully toward completion within one year of the date of site plan approval by the Planning Commission. If meaningful construction has not commenced during that period, the provisions of § 450-22.11 shall apply.
[1]
Editor's Note: Public Act 177 of 2001 was repealed by P.A.
110 of 2006, effective 7-1-2006. See now MCL 125.3101 et seq..
