Bill Text: MI HB5859 | 2013-2014 | 97th Legislature | Introduced

---

Bill Title: Natural resources; sand dunes; permits; place burden of proof on applicant, and allow local ordinances to be more protective than state law. Amends secs. 35301, 35302, 35304, 35308, 35312, 35313, 35316, 35317 & 35321 of 1994 PA 451 (MCL 324.35301 et seq.) & repeals sec. 35311a of 1994 PA 451 (MCL 324.35311a).

Spectrum: Partisan Bill (Democrat 37-0)

Status: (Introduced - Dead) 2014-10-01 - Printed Bill Filed 10/01/2014 [HB5859 Detail]

Download: Michigan-2013-HB5859-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5859

 

September 30, 2014, Introduced by Reps. Lamonte, Greimel, Lane, Driskell, Singh, Hovey-Wright, Geiss, Dillon, Faris, Dianda, Brinks, Switalski, Townsend, Schor, Yanez, Kivela, Knezek, Irwin, Clemente, McCann, Slavens, Zemke, Robinson, Santana, Barnett, Haugh, Tlaib, Roberts, Brown, LaVoy, Cochran, Darany, Smiley, Cavanagh, Kandrevas, Kosowski and Oakes and referred to the Committee on Natural Resources.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 35301, 35302, 35304, 35308, 35312, 35313,

 

35316, 35317, and 35321 (MCL 324.35301, 324.35302, 324.35304,

 

324.35308, 324.35312, 324.35313, 324.35316, 324.35317, and

 

324.35321), sections 35301, 35302, 35304, 35312, 35313, 35316,

 

35317, and 35321 as amended by 2012 PA 297 and section 35308 as

 

added by 1995 PA 59; and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 35301. As used in this part:

 

     (a) "Contour change" includes any grading, filling, digging,

 

or excavating that significantly alters the physical characteristic

 

of a critical dune area, except that which is if the activity is

 

involved in sand dune mining as defined in part 637.

 

     (b) "Crest" means the line at which the first lakeward facing

 

slope of a critical dune ridge breaks to a slope of less than 1-

 

foot vertical rise in a 5-1/2-foot horizontal plane for a distance

 

of at least 20 feet, if the areal extent where this break occurs is

 

greater than 1/10 acre in size.

 

     (c) "Critical dune area" means a geographic area designated in

 

the "atlas of critical dune areas" dated February 1989 that was and

 

prepared by the department of natural resources.

 

     (d) "Department" means the department of environmental

 

quality.

 

     (e) "Foredune" means 1 or more low linear dune ridges that are

 

parallel and adjacent to the shoreline of a Great Lake and are

 

rarely greater than 20 feet in height. The lakeward face of a

 

foredune is often gently sloping and may be vegetated with dune

 

grasses and low shrub vegetation or may have an exposed sand face.

 

     (f) "Model zoning plan" means the model zoning plan provided

 

for in sections 35304 to 35309 and 35311a 35311b to 35324.35323.

 

     (g) "Permit" means a permit for a use within a critical dune

 

area under this part.

 

     (h) "Planning commission" means the body or entity within a

 

local government that is responsible for zoning and land use

 

planning for the local unit of government.

 

     (i) "Restabilization" means restoration of the natural

 

contours of a critical dune to the extent practicable, the

 

restoration of the protective vegetative cover of a critical dune

 

through the establishment of indigenous vegetation, and the

 

placement of snow fencing or other temporary sand trapping measures

 

for the purpose of preventing erosion, drifting, and slumping of

 

sand.

 

     (j) "Special use project" means any of the following:

 

     (i) A proposed use in a critical dune area for an industrial or

 

commercial purpose regardless of the size of the site.

 

     (ii) A proposed multifamily use of more than 3 acres.

 

     (iii) A proposed multifamily use of 3 acres or less if the

 

density of use is greater than 4 individual residences per acre.

 

     (iv) A proposed use in a critical dune area, regardless of size

 

of the use, that the planning commission, or the department if a

 

local unit of government does not have an approved zoning

 

ordinance, determines would damage or destroy features of

 

archaeological or historical significance.

 

     (k) "Use" means a developmental, silvicultural, or

 

recreational activity done or caused to be done by a person that

 

significantly alters the a physical characteristic of a critical

 

dune area or a contour change done or caused to be done by a

 

person. Use does not include sand dune mining as defined in part

 

637.

 

     (l) "Zoning ordinance" means an ordinance of a local unit of

 

government that regulates the development of critical dune areas

 

within the local unit of government pursuant to the requirements of

 

this part.

 

     Sec. 35302. The legislature finds that:

 

     (a) The critical dune areas of this state are a unique,

 

irreplaceable, and fragile resource that provide significant

 

recreational, economic, scientific, geological, scenic, botanical,

 

educational, agricultural, and ecological benefits to the people of

 

this state and to people from other states and countries who visit

 

this resource.

 

     (b) Local units of government should have the opportunity to

 

exercise the primary role in protecting and managing critical dune

 

areas in accordance with this part.

 

     (c) (b) The purpose of this part is to balance for present and

 

future generations the benefits of protecting, preserving,

 

restoring, and enhancing the diversity, quality, functions, and

 

values of the state's critical dunes with the benefits of economic

 

development and multiple human uses of the critical dunes and the

 

benefits of public access to and enjoyment of the critical dunes.

 

To accomplish this purpose, this part is intended to do all of the

 

following:

 

     (i) Ensure and enhance the diversity, quality, functions, and

 

values of the critical dunes in a manner that is compatible with

 

private property rights.

 

     (ii) Ensure sound management of all critical dunes by allowing

 

for compatible economic development and multiple human uses of the

 

critical dunes.

 

     (iii) Coordinate and streamline governmental decision-making

 

affecting critical dunes through the use of the most comprehensive,

 

accurate, and reliable information and scientific data available.

 

     Sec. 35304. (1) A person shall not initiate a use within a

 

critical dune area unless the person obtains a permit from the

 

local unit of government in which the critical dune area is located

 

or the department if the department issues permits as provided

 

under subsection (7). A Subject to subsection (7), all of the

 

following apply to a permit for a use within a critical dune area:

 

is subject to all of the following:

 

     (a) A person proposing a use within a critical dune area shall

 

file an application with the local unit of government. , or with

 

the department if the department is issuing permits under the model

 

zoning plan. The application form shall include information

 

necessary to conform with the requirements of this part. If a

 

project proposes the use of more than 1 critical dune area location

 

within a local unit of government, 1 application may shall be filed

 

for the uses. If a multiphase development is planned by the permit

 

applicant, 1 application shall be filed for all phases of the

 

development.

 

     (b) The local unit of government shall provide notice of an

 

application filed under this section to each person who makes a

 

written request to the local unit of government for notification of

 

pending applications. The local unit of government may charge an

 

annual fee for providing this notice. the notices. The local unit

 

of government shall prepare a monthly list of the applications made

 

during the previous month and shall promptly provide copies of the

 

list for the remainder of the calendar year to the persons who have

 

requested notice. In addition, if the department issues permits

 

under this part within a local unit of government as provided under

 

subsection (7), notice of an application shall also be given to the

 

local conservation district office, the county clerk, the county

 

health department, and the local unit of government in which the

 

property is located. The monthly list shall state the name and

 

address of each applicant, the location of the applicant's project,

 

and a summary statement of the purpose of the use. The local unit

 

of government may hold a public hearing on pending applications.

 

     (c) The notice shall state that unless a written request is

 

filed with the local unit of government within 20 days after the

 

notice is sent, the local unit of government may grant the

 

application without a public hearing. Upon the written request of 2

 

or more persons who own real property within 2 miles of the project

 

or within the territory of the local unit of government, the local

 

unit of government shall hold a public hearing pertaining to on a

 

permit application.

 

     (d) At least 10 days' notice of a hearing to be held pursuant

 

to this section shall be given by publication all of the following:

 

     (i) Publication in 1 or more newspapers of general circulation

 

in the county in which the proposed use is to be located , and by

 

providing and in other publications, if appropriate, to give notice

 

to persons likely to be affected by the proposed use.

 

     (ii) Providing notice to the persons who have requested notice

 

pursuant to subdivision (b) and to the person requesting the

 

hearing.

 

     (e) After the filing of an application, the local unit of

 

government shall grant or deny the permit within 60 days, or within

 

90 days if a public hearing is held. If a permit is denied, the

 

local unit of government shall provide to the applicant a concise

 

written statement of its reasons for denial of the permit, and if

 

it appears that a minor modification of the application would

 

result in the granting of the permit, the nature of the

 

modification. shall be stated. In an emergency, the local unit of

 

government may issue a conditional permit before the expiration of

 

the 20-day period referred to in subdivision (c).

 

     (f) The local unit of government shall base a decision to

 

grant or deny a permit under this section on the model zoning plan

 

or on any existing an ordinance that is in effect in adopted by the

 

local unit of government that provides a substantially equivalent

 

the same or a greater level of protection for critical dune areas

 

and that is approved by the department as provided in subsection

 

(6).

 

     (g) Subject to section 35316, a permit shall not be approved

 

unless the local unit of government or the department determines

 

that the use will not significantly damage the public interest on

 

the privately owned land, or, if the land is publicly owned, the

 

public interest in the publicly owned land, by significant and

 

unreasonable depletion or degradation of any of the following:

 

     (i) The diversity of the critical dune areas within the local

 

unit of government.

 

     (ii) The quality of the critical dune areas within the local

 

unit of government.

 

     (iii) The functions of the critical dune areas within the local

 

unit of government.

 

     (h) In applying the standard under subdivision (g), the local

 

unit shall consider all of the following:

 

     (i) The cumulative effects of existing and proposed uses.

 

     (ii) The effects of the entire proposed development, including

 

all of the following:

 

     (A) All phases of a multiphase development.

 

     (B) Uses of all lots or parcels created under the land

 

division act, 1967 PA 288, MCL 560.101 to 560.293, or site

 

condominium units created under the condominium act, 1978 PA 59,

 

MCL 559.101 to 559.276.

 

     (C) Driveways, parking areas, turnaround areas, and roads.

 

     (2) A zoning ordinance may be more restrictive of development

 

and more protective of critical dune areas than the model zoning

 

plan.

 

     (3) (2) The decision of the local unit of government or the

 

department with respect to a permit shall be in writing and shall

 

be based upon evidence that would meet the standards in section 75

 

of the administrative procedures act of 1969, 1969 PA 306, MCL

 

24.275. A decision granting or denying a permit shall document, and

 

any review upholding the decision shall determine, all of the

 

following:

 

     (a) That the local unit of government or the department

 

Whether the applicant has met the burden of proof under subsection

 

(1).

 

     (b) That the decision is based upon sufficient local unit of

 

government or the department considered the facts or data made

 

available by the applicant.

 

     (c) That the decision is the product of reliable scientific

 

principles and methods.

 

     (d) That the decision has applied the principles and methods

 

reliably to the facts.

 

     (e) That the facts or data upon which the decision is based

 

are recorded in the file.

 

     (4) (3) A permit shall not be granted that authorizes

 

construction of a dwelling or other permanent building on the first

 

lakeward facing slope of a critical dune area or foredune except on

 

a lot of record that was recorded prior to July 5, 1989 that does

 

not have sufficient buildable area landward of the crest to

 

construct the dwelling or other permanent building as proposed by

 

the applicant. The proposed construction under this subsection, to

 

the greatest extent possible, shall be placed landward of the

 

crest. The portion of the development that is lakeward of the crest

 

shall be placed in the location that has the least impact on the

 

critical dune area.

 

     (5) (4) Except as provided in subsection (3), (4), a permit

 

shall provide that a use that is a structure shall be constructed

 

behind the crest of the first landward ridge of a critical dune

 

area that is not a foredune. However, if construction occurs within

 

100 feet measured landward from the crest of the first landward

 

ridge that is not a foredune, the use shall meet all of the

 

following requirements:

 

     (a) The structure and access to the structure shall be in

 

accordance with a site plan prepared for the site by a registered

 

professional architect or a licensed professional engineer and the

 

site plan shall provide for the disposal of storm waters without

 

serious soil erosion and without sedimentation of any stream or

 

other body of water.

 

     (b) Access to the structure shall be from the landward side of

 

the dune.

 

     (c) The dune shall be restabilized with indigenous vegetation.

 

     (d) The crest of the dune shall not be reduced in elevation.

 

     (6) (5) A local unit of government may at any time adopt a

 

zoning ordinance as described in subsection (1)(f). As soon as

 

possible following adoption of a the zoning ordinance, enacted

 

pursuant to this part, the local unit of government shall submit to

 

the department a copy of the ordinance. that it determines meets

 

the requirements of this part. If the local unit of government has

 

an existing ordinance that it contends is substantially equivalent

 

to provides a level of protection the same as or greater than the

 

model zoning plan, that ordinance may be submitted to the

 

department at any time. The department shall review zoning

 

ordinances submitted under this section to assure ensure compliance

 

with this part. If the department finds that an ordinance is not in

 

compliance with this part, the department shall work with the local

 

unit of government to bring the ordinance into compliance and

 

inform the local unit of the failure to comply and in what ways the

 

submitted ordinance is deficient. Unless a local unit of government

 

receives notice, within 180 days after submittal of the ordinance

 

to the department under this subsection, that the ordinance is not

 

in compliance with this part, the ordinance shall be considered to

 

be approved by the department.

 

     (6) A local unit of government may adopt, submit to the

 

department, and obtain approval of a zoning ordinance based on the

 

model zoning plan or an equivalent ordinance as provided in this

 

section by June 30, 1990. If a local unit does not have an approved

 

ordinance by June 30, 1990, the department shall implement the

 

model zoning plan for that local unit of government in the same

 

manner and under the same circumstances as provided in subsection

 

(1). Notwithstanding any other provision of this part, a local unit

 

of government may adopt a zoning ordinance at any time, and upon

 

the approval of the department, that ordinance shall take the place

 

of the model zoning plan implemented by the department.

 

     (7) If a local unit of government in which a proposed use is

 

to be located does not elect to issue permits or does not receive

 

department approval of a zoning ordinance that regulates critical

 

dune areas, the department shall implement the model zoning plan in

 

the place of the local unit of government and issue special

 

exceptions in the same circumstances as provided in this part for

 

the issuance of variances by local units of government, and issue

 

permits pursuant to subsection (1) and part 13.

 

     (8) The department shall assist local units of government in

 

developing ordinances that meet the requirements of this part.

 

     Sec. 35308. (1) Except as provided in subsection (2), the

 

following uses shall be prohibited in a critical dune area:

 

     (a) A surface drilling operation that is utilized for the

 

purpose of exploring for or producing hydrocarbons or natural brine

 

or for the disposal of the waste or by-products of the operation.

 

     (b) Production facilities regulated under parts 615 and 625.

 

     (c) A road unless the road provides access to a building in

 

the critical dune area that is not otherwise accessible by road.

 

     (2) Uses described in subsection (1) that are lawfully in

 

existence at a site on July 5, 1989 may be continued. The

 

continuance, completion, restoration, reconstruction, extension, or

 

substitution of those existing uses shall be permitted upon

 

reasonable terms prescribed by the department.

 

     Sec. 35312. (1) A After consulting with the local conservation

 

district, a local unit of government that has 1 or more critical

 

dune areas within its jurisdiction may formulate a zoning ordinance

 

pursuant to the Michigan zoning enabling act, 2006 PA 110, MCL

 

125.3101 to 125.3702, to regulate critical dune areas.

 

     (2) A zoning ordinance shall consist of all of the provisions

 

of the model zoning plan or comparable provisions that provide

 

substantially equivalent the same or a greater level of protection

 

of critical dune areas as the model zoning plan. but shall not be

 

more restrictive than the model zoning plan or the standard of

 

review for permits or variances prescribed in the model zoning

 

plan.

 

     (3) A local unit of government may by an affirmative vote of

 

its governing body following a public hearing regulate additional

 

lands as critical dune areas under this part as considered

 

appropriate by the planning commission if the lands are determined

 

by the local unit of government to be essential to the hydrology,

 

ecology, topography, or integrity of a critical dune area. A local

 

unit of government shall provide within its zoning ordinance for

 

the protection of lands that are within 250 feet of a critical dune

 

area, if those lands are determined by the local unit of government

 

to be essential to the hydrology, ecology, topography, or integrity

 

of a critical dune area.

 

     (4) If a local unit of government does not have an approved

 

zoning ordinance, the department may regulate additional lands

 

described in subsection (3). However, the lands added by the

 

department shall not extend more than 250 feet from the landward

 

boundary of a critical dune area, unless, following a public

 

hearing, an affirmative vote of the governing body of the local

 

unit of government authorizes a further extension. If the director

 

determines that the mapping of a critical dune area designated in

 

the "atlas of critical dune areas" dated February 1989 was

 

inaccurate, the department may regulate additional lands. However,

 

the lands added by the department shall not extend more than 250

 

feet from the landward boundary of a critical dune area.

 

     Sec. 35313. (1) A zoning ordinance under section 35312 shall

 

require that all applications for permits for the use of a critical

 

dune area include in writing all of the following:

 

     (a) That the county enforcing agency designated pursuant to

 

part 91 finds that the project is in compliance with part 91 and

 

any applicable soil erosion and sedimentation control ordinance

 

that is in effect in the local unit of government.

 

     (b) That a proposed sewage treatment or disposal system on the

 

site has been approved by the county health department or the

 

department.

 

     (c) Assurances that the cutting and removing of trees and

 

other vegetation will be performed according to the instructions or

 

plans of the local conservation district. These instructions or

 

plans may include applicable silvicultural practices as described

 

in "forestry management guidelines for Michigan" prepared by the

 

society of American foresters in 1987 as revised in 2010. and The

 

instructions or plans may include a program to provide mitigation

 

for the removal of trees or vegetation by providing assurances that

 

the applicant will plant on the site more trees and other

 

vegetation than were removed by the proposed use.

 

     (d) A site plan that contains data required by the planning

 

commission concerning the physical development of the site and

 

extent of disruption of the site by the proposed development. The

 

planning commission may consult with the local conservation

 

district in determining the required data.

 

     (2) A local unit of government or the department shall not may

 

require an environmental site assessment or as part of a permit

 

application but shall not require an environmental impact statement

 

as part of a permit application except for a special use project.

 

     Sec. 35316. (1) Unless a variance is granted pursuant to

 

section 35317, a zoning ordinance shall not permit the following

 

uses in a critical dune area:

 

     (a) A structure and access to the structure on a slope within

 

a critical dune area that has a slope that measures from a 1-foot

 

vertical rise in a 4-foot horizontal plane to less not steeper than

 

a 1-foot vertical rise in a 3-foot horizontal plane, unless the

 

structure and access to the structure are in accordance with a site

 

plan prepared for the site by a registered professional architect

 

or a licensed professional engineer and the site plan provides for

 

the disposal of storm waters without serious soil erosion and

 

without sedimentation of any stream or other body of water. Before

 

approving the site plan, the planning commission shall consult with

 

the local conservation district.

 

     (b) A use on a slope within a critical dune area that has a

 

slope steeper than a 1-foot vertical rise in a 3-foot horizontal

 

plane.

 

     (c) A use involving a contour change if the local unit of

 

government or the department determines that it is more likely than

 

not to increase erosion or decrease stability.

 

     (d) Silvicultural practices, as described in the "forest

 

management guidelines for Michigan", prepared by the society of

 

American foresters as revised in 2010, if the local unit of

 

government or the department determines that they are more likely

 

than not to increase erosion or decrease stability.

 

     (e) A use that involves a vegetation removal if the local unit

 

of government or the department determines that it is more likely

 

than not to increase erosion or decrease stability.

 

     (2) If the local unit of government is not certain of the

 

degree of slope on a property for which a use permit is sought, the

 

local unit may require that the applicant supply contour maps of

 

the site with 5-foot intervals at or near any proposed structure or

 

roadway or consult with the local conservation district regarding

 

the degree of slope.

 

     (3) The department shall develop guidelines to describe the

 

method by which the department and local units of government

 

measure slopes to implement the requirements of the zoning

 

ordinance or the model zoning plan.

 

     (4) If a person is ordered by the department, or by a local

 

unit of government that is enforcing a zoning ordinance authorized

 

under this part, to restore a critical dune area that has been

 

degraded by that person, the department or local unit of government

 

shall establish a procedure by which the restoration of the

 

critical dune area is monitored to assure ensure that the

 

restoration is completed in a satisfactory manner.

 

     Sec. 35317. (1) A local unit of government may issue variances

 

under a zoning ordinance, or the department may issue special

 

exceptions under the model zoning plan if a local unit of

 

government does not have an approved zoning ordinance. , if a

 

practical difficulty will occur to the owner of the property if the

 

variance or special exception is not granted. In determining

 

whether a practical difficulty will occur if a variance or special

 

exception is not granted, primary consideration shall be given to

 

assuring ensuring that human health and safety are protected by the

 

determination and that the determination complies with applicable

 

local zoning, other state laws, and federal law. If a A variance or

 

special exception shall not be granted unless the local unit of

 

government or the department determines both of the following:

 

     (a) A practical difficulty will occur to the owner of the

 

property if the variance or special exception is not granted. , a

 

variance or special exception shall be granted under this section

 

unless the local unit of government or the department determines

 

that the

 

     (b) The use will not significantly damage the public interest

 

on the privately owned land, or, if the land is publicly owned, the

 

public interest in the publicly owned land, by significant and

 

unreasonable depletion or degradation of any of the following:

 

     (i) (a) The diversity of the critical dune areas within the

 

local unit of government.

 

     (ii) (b) The quality of the critical dune areas within the

 

local unit of government.

 

     (iii) (c) The functions of the critical dune areas within the

 

local unit of government.

 

     (2) The decision of the local unit of government or the

 

department shall be in writing and shall be based upon evidence

 

that would meet the standards in section 75 of the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.275. A decision

 

granting or denying a variance or special exception shall document,

 

and any review upholding the decision shall determine, all of the

 

following:

 

     (a) That the local unit of government or the department

 

Whether the applicant has met the burden of proof under subsection

 

(1).

 

     (b) That the decision is based upon sufficient local unit of

 

government or the department considered the facts or data made

 

available by the applicant.

 

     (c) That the decision is the product of reliable scientific

 

principles and methods.

 

     (d) That the decision has applied the principles and methods

 

reliably to the facts.

 

     (e) That the facts or data upon which the decision is based

 

are recorded in the file.

 

     (3) A local unit of government or the department shall not may

 

require an environmental site assessment or environmental impact

 

statement for a variance but shall not require an environmental

 

impact statement except for a special use project.

 

     (4) A variance shall not be granted from a setback requirement

 

provided for under the model zoning plan or an equivalent a zoning

 

ordinance approved under section 35034 enacted pursuant to this

 

part 35304 unless the property for which the variance is requested

 

is 1 of the following:

 

     (a) A nonconforming lot of record that is recorded prior to

 

July 5, 1989, and that becomes nonconforming due to because of the

 

operation of this part or a zoning ordinance.

 

     (b) A lot legally created after July 5, 1989 that later

 

becomes nonconforming due to because of natural shoreline erosion.

 

     (c) Property on which the base of the first landward critical

 

dune of at least 20 feet in height that is not a foredune is

 

located at least 500 feet inland from the first foredune crest or

 

line of vegetation on the property. However, the setback shall be a

 

minimum of 200 feet measured from the foredune crest or line of

 

vegetation.

 

     (5) Each local unit of government that has issued a variance

 

for a use other than a special use project during the previous 12

 

months shall file an annual report with the department indicating

 

variances that have been granted by the local unit of government

 

during that period.

 

     (6) Upon receipt of an application for a special exception

 

under the model zoning plan, the department shall forward a copy of

 

the application and all supporting documentation to the local unit

 

of government having jurisdiction over the proposed location. The

 

local unit of government shall have 60 days to review and comment

 

on the proposed special exception. The department shall not make a

 

decision on an application for a special exception under the model

 

zoning plan until either the local unit of government has commented

 

on the proposed special exception or has waived its opportunity to

 

review the special exception. application. The local unit of

 

government may waive its opportunity to review the application at

 

any time within 60 days after receipt of the application and

 

supporting documentation by notifying the department in writing.

 

The local unit of government also waives its opportunity to review

 

the application if it fails to act as authorized in this subsection

 

within 60 days. If the local unit of government waives its

 

opportunity to review the application, the local unit of government

 

also waives its opportunity to oppose the decision by the

 

department to issue a special exception. If the local unit of

 

government opposes the issuance of the special exception, the local

 

unit of government shall notify the department, in writing, of its

 

opposition within the 60-day notice period. If the local unit of

 

government opposes the issuance of the special exception, the

 

department shall not issue a special exception. The local unit of

 

government may also consider whether a practical difficulty will

 

occur to the owner of the property if the special exception is not

 

granted by the department and may make a recommendation to the

 

department within the 60-day notice period. The department shall

 

base its determination of whether a practical difficulty exists on

 

information provided by the local unit of government and other

 

pertinent information.

 

     Sec. 35321. A zoning ordinance shall provide that, in

 

reviewing a site plan required under section 35313(1)(d), the

 

planning commission shall do both of the following:

 

     (a) Determine whether the requirements of the zoning ordinance

 

have been met and whether the plan is consistent with existing

 

laws.

 

     (b) Determine whether the advice or assistance of the local

 

conservation district will be helpful in reviewing a site plan.

 

     (c) (b) Recommend alterations of a proposed development to

 

minimize adverse effects anticipated if the development is approved

 

and to assure ensure compliance with all applicable state and local

 

requirements.

 

     Enacting section 1. Section 35311a of the natural resources

 

and environmental protection act, 1994 PA 451, MCL 324.35311a, is

 

repealed.