View the PDF version Google Docs PDF Viewer
CITY OF MUSKEGON
CITY COMMISSION WORKSESSION
Monday, December 11, 2017
5:30 p.m.
City Commission Chambers
AGENDA
1. Amendment to the Zoning Ordinance – Critical Dunes
Closed Session:
2. Collective Bargaining
3. Attorney/Client Confidential Communication
4. Any Other Business
5. Adjournment
CRC Meeting Immediately Following
Commission Meeting Date: December 12, 2017
Date: December 5, 2017
To: Honorable Mayor and City Commissioners
From: Planning & Economic Development
RE: Amendment to the Zoning Ordinance – Critical Dunes
SUMMARY OF REQUEST:
Staff-initiated request to amend Section 2310 of the zoning ordinance to adopt a
local critical dune ordinance. Act 451 of 1994, the Natural Resources and
Environmental Protection Act, allows municipalities to enact their own critical dune
ordinance and enforce it themselves, rather than relying on the Michigan Department of
Environmental Quality to do so. Staff anticipates that this will speed up the approval
process for projects located in critical dune areas.
FINANCIAL IMPACT:
None
BUDGET ACTION REQUIRED:
None
STAFF RECOMMENDATION:
To approve the zoning ordinance amendment.
COMMITTEE RECOMMENDATION:
The Planning Commission unanimously recommended approval of the ordinance
amendment at their November 16 meeting.
Staff Report (EXCERPT)
CITY OF MUSKEGON
PLANNING COMMISSION
REGULAR MEETING
Hearing, Case 2017-30: Request to amend the zoning ordinance by adopting a local critical dune ordinance,
per Public Act 451 of 1994, the Natural Resources and Environmental Protection Act.
SUMMARY
1. Critical Dunes in Michigan are regulated by the Michigan Department of Environmental Quality
(MDEQ). Anyone doing work in a critical dune must first receive a permit from the MDEQ. These
permits can take several months to get approved, so it often times slows down projects.
2. Act 451 of 1994 allows local municipalities to enact their own critical dune ordinance and enforce it
themselves. Staff has created the enclosed draft ordinance, which has been reviewed by the MDEQ.
3. Staff plans to either enforce the ordinance in-house by doing our own inspections or possibly
contracting with a private firm for inspections.
4. Please see the enclose map that shows the locations of Critical Dunes in Muskegon.
5. Please see the eclipsed proposed ordinance.
NEW LANGUAGE
SECTION 2310: Critical Dune Overlay District
1. Purpose. In keeping with the findings of the Michigan legislature and the authority granted to local
government in Public Act 451 of 1994, as amended, the City of Muskegon hereby declares that:
a. The critical dune areas within the City of Muskegon 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 community, to the state, and
to the people from other states and countries who visit this resource.
b. The purpose of this ordinance 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 ordinance is intended to do all of the following:
• Ensure and enhance the diversity, quality, functions, and values of the critical dunes in a
manner that is compatible with private property rights.
• Ensure sound management of all critical dunes by allowing for compatible economic
development and multiple human uses of the critical dunes.
• Coordinate and streamline governmental decision-making affecting critical dunes through
the use of the most comprehensive, accurate, and reliable information and scientific data
available.
c. The benefits derived from alteration, industrial, residential, commercial, agricultural, sylvicultural,
and the recreational use of critical dune areas shall occur only when the protection of the
environment and the ecology of the critical dune areas for the benefit of the present and future
generations is assured.
d. The following regulations embodied in this Dune Overlay Zone are adopted as the minimum
measures necessary to achieve these ends.
2. Definitions – As used in this section,
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 involved in sand dune mining.
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 prepared by the Michigan Department of Natural Resources and any
other locally designated sand dune areas included on the City of Muskegon Zoning Map.
d. "Driveway" means a privately owned, constructed, and maintained vehicular access from a road or
easement serving the property to the principal building or accessory buildings, that is paved,
graveled, or otherwise improved for vehicular access, 16 feet wide or narrower in the sole
discretion of the applicant or owner, and may include, in the sole discretion of the applicant or
owner, a shared driveway.
e. "Foredune" means one 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. "Permit" means a permit for a use within a critical dune area.
g. "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.
h. “Sand dune mining” means the removal of sand from sand dine areas for commercial or industrial
purposes.
i. "Special use project" means any of the following:
• A proposed use in a critical dune area for an industrial or commercial purpose regardless of
the size of the site.
• A multifamily use of more than 3 acres.
• A multifamily use of 3 acres or less if the density of use is greater than 4 individual
residences per acre.
• A proposed use in a critical dune area, regardless of size of the use, that the planning
commission determines would damage or destroy features of archaeological or historical
significance.
j. "Use" means a developmental, sylvicultural, or recreational activity done or caused to be done by a
person that significantly alters the 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.
3. Area Affected. The provisions of the Dune Overlay Zone apply to all lands so depicted on the City of
Muskegon Zoning Map which is a part of this ordinance. These lands include the entire critical dune area
as designated by the Michigan Department of Natural Resources pursuant to Public Act 451 of 1994, and
to such other lands as locally designated and depicted thereon. Locally designated sand dunes together with
dunes designated under Public Act 451 shall be known as critical dune areas for the purpose of this
ordinance. Lands that are within 250 feet of a critical dune area, that are determined by the Planning
Commission to be essential to the hydrology, ecology, topography, or integrity of a critical dune area shall
also receive all the protection afforded to critical dunes in the Overlay Zone, even if not so depicted on the
City of Muskegon Zoning Map.
4. Nonconforming Building and Lots After the effective date of the adoption of this Section:
a. No subdivision or condominium development shall occur within the Dune Overlay Zone except in
compliance with the minimum standards of this ordinance and after review and approval of a site
plan and other documents as required herein.
b. No structure shall be constructed, reconstructed, altered, or relocated except in strict compliance
with the requirements of this ordinance.
c. No use which is in existence as of the effective date of this Article shall be expanded, except in
strict compliance with the minimum standards of this Ordinance.
d. No existing nonconforming building or structure shall be altered except provided in Article XXII,
Section 2203.
5. Application Requirements. All applications for permits for the use of a critical dune area shall include in
writing showing evidence:
a. That Muskegon County, which administers Part 91 Soil Erosion and Sedimentation Control, of
Public Act 451 of 1994, as amended, finds that the project is in compliance with the act and any
applicable soil erosion and sedimentation control ordinance that is in effect in Muskegon County.
b. That a proposed sewage treatment or disposal system on the site has been approved by the county
health department, if applicable.
c. Assuring that the cutting and removing of trees and other vegetation will be performed according to
the forestry management guidelines for Michigan prepared by the Society of American Foresters in
1987, as revised in 2010, and will include instructions or plans 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 on the site than were removed by the proposed use.
d. Except as otherwise provided in this subsection, a site plan that contains data required by this
Section and Article XXIII, Section 2330, concerning the physical development of the site and
extent of disruption of the site by the proposed development.
e. The Zoning Administrator shall not require an environmental site assessment or environmental
impact statement as part of a permit application for a use in a critical dune overlay zone except for a
“Special Use” project.
f. The Zoning Administrator will require that the applicant supply a contour map of the site with 1-
foot contour intervals at or near any proposed structure or roadway for any new construction.
g. The payment of any required fees for processing and/or professional review of the submitted site
plan.
6. Environmental Assessment. When an environmental assessment is required under a “Special Use” project,
it shall include the following information concerning the site of the proposed use:
a. The name and address of the applicant.
b. A description of the application’s proprietary interest in the site.
c. The name, address, and professional qualification of the person preparing the environmental
assessment and his/her opinion as to whether the proposed development of the site is consistent
with protecting features of environmental sensitivity and archaeological or historical significance
that may be located on the site.
d. The description and purpose of the proposed use.
e. The location of existing utilities and drainage ways.
f. The general location and approximate dimensions of proposed structures.
g. Major proposed change of land forms such as new lakes, terracing or excavating.
h. Sketches showing the scale, character, and relationship of structures, streets or driveways, and open
space.
i. Approximate location and type of proposed drainage, water, and sewage facilities.
j. Legal description of property.
k. A physical description of the site, including its dominant characteristics, its vegetative character, its
present use, and other relevant information.
l. A natural hazards review consisting of a list of natural hazards such as periodic flooding, poor soil
bearing conditions, and any other hazards peculiar to the site.
m. An erosion review showing how erosion control will be achieved, and illustrating plans or
programs that may be required by any existing soil erosion and sedimentation ordinance.
7. Environmental Impact Statement. When an environmental assessment is required, it shall include the
following information concerning the site of the proposed use:
a. The name and address of the applicant.
b. A description of the applicant's proprietary interest in the site of the proposed use.
c. The name, address, and professional qualifications of the proposed professional design team
members, including the designation of the person responsible for the preparation of the
environmental impact statement.
d. The description and purpose of the proposed use.
e. Six copies and one reproducible transparency of a schematic use plan of the proposed use showing
the general location of the proposed use and major existing physical and natural features on the site,
including, but not limited to, watercourses, rock outcropping, wetlands, and wooded areas.
f. The location of the existing utilities and drainage ways.
g. The location and notation of public streets, parks, and railroad and utility rights-of-way within or
adjacent to the proposed use.
h. The general location and dimensions of proposed streets, driveways, sidewalks, pedestrian ways,
trails, off-street parking, and loading areas.
i. The general location and approximate dimensions of proposed structures.
j. Major proposed change of land forms such as new lakes, terracing, or excavating.
k. Approximate existing and proposed contours and drainage patterns, showing at least five-foot
contour intervals.
l. Sketches showing the scale, character, and relationship of structures, streets, or driveways, and
open space.
m. Approximate location and type of proposed drainage, water and sewage treatment and disposal
facilities.
n. A legal description of the property.
o. An aerial photo and contour map showing the development site in relation to the surrounding area.
p. A description of the physical site, including its dominant characteristics, its vegetative character, its
present use, and other relevant information.
q. A soil review giving a short descriptive summary of the soil types found on the site and whether the
soil permits the use of septic tanks or requires central sewer. The review may be based on the
"United Soil Classification System" as adopted by the United States Government Corps of
Engineers and Bureau of Reclamation, dated January 1952, or the natural cooperative soil survey
classification system, and the standards for the development prospects that have been offered for
each portion of the site.
r. A natural hazards review consisting of a list of natural hazards such as periodic flooding, poor soil
bearing conditions, and any other hazards peculiar to the site.
s. A substrata review including a descriptive summary of the various geologic bedrock formations
underlying the site, including the identification of known aquifers, the approximate depths of the
aquifers and, if being tapped for use, the principal uses to be made of these waters, including
irrigation, domestic water supply, and industrial usage.
t. An erosion review showing how erosion control will be achieved, and illustrating plans or
programs that may be required by any existing soil erosion and sedimentation ordinance.
u. At a minimum, plans for compliance with all of the following standards shall be required for
construction and post-construction periods:
• Surface drainage designs and structures are erosion proof through control of the direction,
volume, and velocities of drainage patterns. These patterns shall promote natural vegetation
growth that are included in the design in order that drainage waters may be impeded in their
flow and percolation encouraged.
• The design shall include trash collection devices when handling street and parking drainage
to contain solid waste and trash.
• Watercourse designs, control volumes, and velocities of water to prevent bottom and bank
erosion. In particular, changes of direction shall guard against undercutting of banks.
• If vegetation has been removed or has not been able to occur on surface areas such as infill
zones, it shall be the duty of the developer to stabilize and control the impacted surface
areas to prevent wind erosion and the blowing of surface material through the planting of
grasses, and windbreaks and other similar barriers.
8. Driveways. The construction, improvement, and maintenance of a driveway shall be permitted for any
dwelling or other permanent building allowed in a critical dune area, including a dwelling or other
permanent building approved under this ordinance or a lawful nonconforming use, subject only to
applicable permit requirements under Sections 35312 through 35325 of Part 353 of Public Act 451 of
1999, as amended, and the following:
a. A driveway shall be permitted either to the principal building or, in the sole discretion of the
applicant, to an accessory building, under the provisions of this ordinance. Additional driveways, if
any, shall meet the applicable requirements for any other use under this ordinance. The
development of a plan for a driveway should include consideration of the use of retaining walls,
bridges, or similar measures, if feasible, to minimize the impact of the driveway, parking, and
turnaround areas, and the consideration of alternative locations on the same lot of record
b. Driveways on slopes steeper than a 1-foot vertical rise in a 4-foot horizontal plane, but not steeper
than a 1-foot rise in a 3-foot horizontal plane, shall be in accordance with a site plan submitted with
the permit application and prepared for the site by a registered professional architect or licensed
professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restabilization, by design elements including vegetation, cut-and-fill, bridges,
traverses, and such other elements as are required in the judgment of the architect or
engineer to meet these requirements.
c. Driveways on slopes steeper than a 1-foot vertical rise in a 3-foot horizontal plane shall be in
accordance with a site plan submitted with the permit application and prepared for the site by a
licensed professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restabilization, by design elements including vegetation, cut-and-fill, bridges, traverses,
and such other elements as are required in the judgment of the engineer to meet these
requirements. The engineer shall certify under seal that the driveway is not likely to
increase erosion or decrease stability.
d. Temporary construction access for all construction, including new construction, renovation, repairs,
rebuilding, or replacement, and repair, improvement, or replacement of septic tanks and systems,
shall be allowed for any use allowed in a critical dune area for which a driveway is not already
installed by the owner, subject only to the requirements that the temporary access shall not involve
a contour change or vegetation removal that increases erosion or decreases stability except as can
be restabilized upon completion of the construction. The temporary access shall be maintained in
stable condition, and restabilization shall be commenced promptly upon completion of the
construction.
9. Utilities. A use needed to maintain, repair, or replace existing utility lines, pipelines, or other utility
facilities within a critical dune area that were in existence on July 5, 1989, or were constructed in
accordance with a permit under this section or under Part 353 of the Natural Resources and Environmental
Protection Act, being Act 451 of the Public Acts of 1994, as amended, is exempt for purposes for which
the permit was issued from the operation of this section if the maintenance, repair, or replacement is
completed in compliance with all of the following:
a. Vehicles shall not be driven on slopes greater than 1-foot vertical rise in a 3-foot horizontal plane.
b. All disturbed areas shall be immediately stabilized and revegetated with native vegetation
following completion of work to prevent erosion.
c. Any removal of woody vegetation shall be done in a manner to assure that any adverse effect on
the dune will be minimized and will not significantly after the physical characteristics or stability of
the dune.
d. To accomplish replacement of a utility pole, the new pole shall be placed adjacent to the existing
pole, and the existing pole shall be removed by cutting at ground level.
e. In the case of repair of underground utility wires, the repair shall be limited to the minimal
excavation necessary to replace the wires by plowing, small trench excavation, or directional
boring. Replacement of wires on slopes steeper than 1-foot vertical rise in a 4-foot horizontal plane
shall be limited to installation by plowing or directional boring only.
f. In the cases of repair or replacement of underground pipelines, directional boring shall be utilized,
and if excavation is necessary to access and bore the pipeline the excavation area shall be located
on slopes 1-foot vertical rise in a 4-foot horizontal plane or less.
10. Accessibility. Notwithstanding any other provision of this section, at the request of the applicant, the
construction, improvement and maintenance of accessibility measures shall be permitted for any dwelling
or other permanent building allowed in a critical dune area, including a dwelling or other permanent
building approved under this section or a lawful nonconforming use, subject only to applicable permit
requirements of this section and the following:
a. Accessibility measures on slopes steeper than 1-foot vertical rise in a 4-foot horizontal plane,
but not steeper than a 1-foot vertical rise in a 3-foot horizontal plane, shall be in accordance
with a site plan submitted with the permit application and prepared for the site by a registered
professional architect or licensed professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restablization, by design elements including vegetation, cut-and-fill, bridges, traverses,
and such other elements as are required in the judgement of the architect or engineer to
meet these requirements.
b. Accessibility measures on slopes steeper than a 1-foot vertical rise in a 3-foot horizontal plane
shall be in accordance with a site plan submitted with the permit application and prepared for
the site by a licensed professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restablization, by design elements including vegetation, cut-and-fill, bridges, traverses,
and such other elements as are required in the judgement of the architect or engineer to
meet these requirements. The engineer shall certify under seal that the accessibility
measures are not likely to increase erosion or decrease stability.
The choice of components for an accessible route under American national standards institute standard
402.2 shall be at the option of the applicant.
11. Prohibited Uses. The following uses are not permitted in a critical dune area:
a. The disposal of sewage on-site unless the standards of applicable sanitary codes are met or
exceeded.
b. A use that does not comply with the minimum setback requirements required by rules that are
promulgated under part 323 of Public Act 451 of 1994.
c. 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,
except those 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 Planning Commission.
d. Production facilities regulated under parts 615 and 625 of Act 451 of 1994, except those 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 Planning Commission.
12. Non-Permitted Uses, Unless a Variance is Granted. Unless a variance is granted, the following uses are
not permitted 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 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.
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 Zoning Administrator determines that it is more likely
than not to increase erosion or decrease stability.
d. Sylvicultural practices, as described in the "Forest Management Guidelines for Michigan",
prepared by the Society of American Foresters as revised in 2010, if the City of Muskegon
determines that they are more likely than not to increase erosion or decrease stability.
e. A use that involves a vegetation removal if the Zoning Administrator determines that it is more
likely than not to increase erosion or decrease stability.
13. Site Plan Review. When reviewing a site plan submitted, along with all the application information
required, the Zoning Administrator shall:
a. Ensure that the requirements of the zoning ordinance have been met and the plan is consistent
with existing laws.
b. Determine whether the advice or assistance of Muskegon County will be helpful in reviewing a
site plan, and if so, to so seek it.
c. Recommend alterations of a proposed development to minimize adverse effects anticipated if
the development is approved and to ensure compliance with all applicable state and local
requirements.
d. Determine that the proposed use will ensure and enhance the diversity, quality, function and
values of the critical dune in a manner that is compatible with private property rights; allows for
compatible economic development and multiple human uses of the critical dune, using the
most competent, accurate and reliable information and scientific data available.
14. Use Standards. Any lot or parcel which in whole or part which falls within the Dune Overlay Zone and/or
within 250 feet outside the Dune Overlay Zone that is determined by the Planning Commission to be
essential to the hydrology, ecology, topography, or integrity of a critical dune area shall not be used except
upon receipt of a permit from the Zoning Administrator. No zoning permit shall be issued for the use of
land within this zone or within 250 feet outside the zone that is determined by the Planning Commission to
be essential to the hydrology, ecology, topography, or integrity of a critical dune area until a site plan
meeting the requirements of this Section and those of Article XXIII, Section 2330, have been met. If
requested, the Planning Commission will make the final determination as to whether or not these standards
have been met and shall exercise its lawful discretion in all cases in favor of protection of the critical dune
area.
15. Prohibition of Construction Without Permit. No grading or clearing of a site shall be done prior to issuance
of a zoning permit as required in this Ordinance.
16. Special Use Project Review Procedures. A proposed special use project shall be reviewed and a
recommendation for approval, approval with conditions, or denial is made by the Planning Commission
pursuant to the special use procedures of this ordinance shall be completed.
17. Department of Environmental Quality Review. Prior to issuing a permit allowing a special use project
within a critical dune area, the Planning Commission shall submit the special use project application and
site plan and their proposed decision to the Department of Environmental Quality, Land and Water
Management Division following the procedures of this ordinance.
18. Nonconforming Uses. The lawful use of land or a structure, as existing and lawful within a critical dune
area in the time of the adoption of this overlay zone, may be continued although the use of that land or
structure does not conform to the provisions of this overlay zone. The continuance, completion, restoration,
reconstruction, extension or substitution of existing nonconforming uses of land or a structure may
continue consistent with the nonconforming use requirements of this Ordinance. See Article XXII,
Section2202.
19. Rebuilding of Lawful Structures. A structure or use located in a critical dune area that is destroyed by fire,
other than arson for which the owner is found to be responsible, or an act of nature, except for erosion, may
be rebuilt or replaced if the structure or use was lawful at the time it was constructed or commenced; and a
replacement structure and its use may differ from that which was destroyed if it does not exceed in size or
scope that which was destroyed.
20. Variance. The Zoning Board of Appeals may grant a variance from the requirements of this overlay zone
if an unreasonable hardship will occur to the owner of the property if the variance is not granted. The
procedural requirements of Article XXIII (Site Plan Review) and Article XXV (Zoning Board of Appeals)
shall be adhered to. A variance shall be subject to the following limitations:
a. The Zoning Board of Appeals may issue variances under Article XXV of the zoning ordinance
if a practical difficulty will occur to the owner of the property if the variance is not granted. In
determining whether a practical difficulty will occur if a variance is not granted, primary
consideration shall be given to assuring 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 practical difficulty will occur to the owner of the property if the
variance is not granted, a variance shall be granted under this Section unless the Zoning Board
of Appeals determines that the use will 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:
• The diversity of the critical dune areas within the local unit of government.
• The quality of the critical dune areas within the local unit of government.
• The functions of the critical dune areas within the local unit of government.
b. The decision of the Zoning Board of Appeals 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 denying a variance shall document, and any
review upholding the decision shall determine, all of the following:
• That the City of Muskegon has met the burden of proof under subsections 1A
through 1C.
• That the decision is based upon sufficient facts or data.
• That the decision is the product of reliable scientific principles and methods.
• That the decision has applied the principles and methods reliably to the facts.
• That the facts or data upon which the decision is based are recorded in the file.
c. The City of Muskegon shall not require an environmental site assessment or environmental
impact statement for a variance except for a special use project.
d. A variance shall not be granted from a setback requirement provided for under Section 35034
pursuant to Part 353 of the Public Act 451 of 1994 unless the property for which the variance is
requested is one of the following:
• A nonconforming lot of record that is recorded prior to July 5, 1989, and that becomes
nonconforming due to the operation of Part 353.
• A lot legally created after July 5, 1989 that later becomes nonconforming due to natural
shoreline erosion.
• 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.
21. Penalties. In addition to the penalty provisions of this Ordinance, the provisions of Public Act 451 of 1994
shall apply in the event of any violation. Pursuant to the Public Act, a court may impose on a person who
violates any provision of this Dune Overlay Zone, or a provision of a permit issued hereunder, a civil fine
of not more than $5,000 for each day of violation, or order a violator to pay the full cost of the full cost of
restabilization of a critical dune area or other natural resource that is damaged or destroyed as a result of a
violation, or both. If a person is ordered by the Zoning Administrator to restore a critical dune that has
been degraded by that person, the Zoning Administrator shall establish a procedure by which the
restoration of the critical dune area is monitored to assure that the restoration is completed in a satisfactory
manner.
22. Applicable Law. Incorporated by reference herein is Part 353, Michigan Natural Resources and
Environmental Protection Act, PA 451 of 1994, as amended.
23. Severability. If any section, clause, or provision of this Ordinance be declared unconstitutional or otherwise
invalid by a court of competent jurisdiction, said declaration shall not affect the remainder of the
Ordinance. The City Commission hereby declares that it would have passed this Ordinance and each part,
section, subsection, phrase, sentence and clause irrespective of the fact that any one or more parts, sections,
subsections, phrases, sentences or clauses be declared invalid. However, if any provision of the Ordinance
is declared invalid, the City must seek written confirmation from the DEQ that the Ordinance still complies
with Part 353, Michigan Natural Resources and Environmental Protection Act, PA 451 of 1994, as
amended.
CITY OF MUSKEGON
MUSKEGON COUNTY, MICHIGAN
ORDINANCE NO._____
An ordinance to amend section 2310 of the zoning ordinance to adopt a local critical dune ordinance.
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
NEW LANGUAGE
SECTION 2310: Critical Dune Overlay District
1. Purpose. In keeping with the findings of the Michigan legislature and the authority granted to local
government in Public Act 451 of 1994, as amended, the City of Muskegon hereby declares that:
a. The critical dune areas within the City of Muskegon 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 community, to the state, and
to the people from other states and countries who visit this resource.
b. The purpose of this ordinance 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 ordinance is intended to do all of the following:
• Ensure and enhance the diversity, quality, functions, and values of the critical dunes in a
manner that is compatible with private property rights.
• Ensure sound management of all critical dunes by allowing for compatible economic
development and multiple human uses of the critical dunes.
• Coordinate and streamline governmental decision-making affecting critical dunes through
the use of the most comprehensive, accurate, and reliable information and scientific data
available.
c. The benefits derived from alteration, industrial, residential, commercial, agricultural, sylvicultural,
and the recreational use of critical dune areas shall occur only when the protection of the
environment and the ecology of the critical dune areas for the benefit of the present and future
generations is assured.
d. The following regulations embodied in this Dune Overlay Zone are adopted as the minimum
measures necessary to achieve these ends.
2. Definitions – As used in this section,
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 involved in sand dune mining.
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 prepared by the Michigan Department of Natural Resources and any
other locally designated sand dune areas included on the City of Muskegon Zoning Map.
d. "Driveway" means a privately owned, constructed, and maintained vehicular access from a road or
easement serving the property to the principal building or accessory buildings, that is paved,
graveled, or otherwise improved for vehicular access, 16 feet wide or narrower in the sole
discretion of the applicant or owner, and may include, in the sole discretion of the applicant or
owner, a shared driveway.
e. "Foredune" means one 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. "Permit" means a permit for a use within a critical dune area.
g. "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.
h. “Sand dune mining” means the removal of sand from sand dine areas for commercial or industrial
purposes.
i. "Special use project" means any of the following:
• A proposed use in a critical dune area for an industrial or commercial purpose regardless of
the size of the site.
• A multifamily use of more than 3 acres.
• A multifamily use of 3 acres or less if the density of use is greater than 4 individual
residences per acre.
• A proposed use in a critical dune area, regardless of size of the use, that the planning
commission determines would damage or destroy features of archaeological or historical
significance.
j. "Use" means a developmental, sylvicultural, or recreational activity done or caused to be done by a
person that significantly alters the 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.
3. Area Affected. The provisions of the Dune Overlay Zone apply to all lands so depicted on the City of
Muskegon Zoning Map which is a part of this ordinance. These lands include the entire critical dune area
as designated by the Michigan Department of Natural Resources pursuant to Public Act 451 of 1994, and
to such other lands as locally designated and depicted thereon. Locally designated sand dunes together with
dunes designated under Public Act 451 shall be known as critical dune areas for the purpose of this
ordinance. Lands that are within 250 feet of a critical dune area, that are determined by the Planning
Commission to be essential to the hydrology, ecology, topography, or integrity of a critical dune area shall
also receive all the protection afforded to critical dunes in the Overlay Zone, even if not so depicted on the
City of Muskegon Zoning Map.
4. Nonconforming Building and Lots After the effective date of the adoption of this Section:
a. No subdivision or condominium development shall occur within the Dune Overlay Zone except in
compliance with the minimum standards of this ordinance and after review and approval of a site
plan and other documents as required herein.
b. No structure shall be constructed, reconstructed, altered, or relocated except in strict compliance
with the requirements of this ordinance.
c. No use which is in existence as of the effective date of this Article shall be expanded, except in
strict compliance with the minimum standards of this Ordinance.
d. No existing nonconforming building or structure shall be altered except provided in Article XXII,
Section 2203.
5. Application Requirements. All applications for permits for the use of a critical dune area shall include in
writing showing evidence:
a. That Muskegon County, which administers Part 91 Soil Erosion and Sedimentation Control, of
Public Act 451 of 1994, as amended, finds that the project is in compliance with the act and any
applicable soil erosion and sedimentation control ordinance that is in effect in Muskegon County.
b. That a proposed sewage treatment or disposal system on the site has been approved by the county
health department, if applicable.
c. Assuring that the cutting and removing of trees and other vegetation will be performed according to
the forestry management guidelines for Michigan prepared by the Society of American Foresters in
1987, as revised in 2010, and will include instructions or plans 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 on the site than were removed by the proposed use.
d. Except as otherwise provided in this subsection, a site plan that contains data required by this
Section and Article XXIII, Section 2330, concerning the physical development of the site and
extent of disruption of the site by the proposed development.
e. The Zoning Administrator shall not require an environmental site assessment or environmental
impact statement as part of a permit application for a use in a critical dune overlay zone except for a
“Special Use” project.
f. The Zoning Administrator will require that the applicant supply a contour map of the site with 1-
foot contour intervals at or near any proposed structure or roadway for any new construction.
g. The payment of any required fees for processing and/or professional review of the submitted site
plan.
6. Environmental Assessment. When an environmental assessment is required under a “Special Use” project,
it shall include the following information concerning the site of the proposed use:
a. The name and address of the applicant.
b. A description of the application’s proprietary interest in the site.
c. The name, address, and professional qualification of the person preparing the environmental
assessment and his/her opinion as to whether the proposed development of the site is consistent
with protecting features of environmental sensitivity and archaeological or historical significance
that may be located on the site.
d. The description and purpose of the proposed use.
e. The location of existing utilities and drainage ways.
f. The general location and approximate dimensions of proposed structures.
g. Major proposed change of land forms such as new lakes, terracing or excavating.
h. Sketches showing the scale, character, and relationship of structures, streets or driveways, and open
space.
i. Approximate location and type of proposed drainage, water, and sewage facilities.
j. Legal description of property.
k. A physical description of the site, including its dominant characteristics, its vegetative character, its
present use, and other relevant information.
l. A natural hazards review consisting of a list of natural hazards such as periodic flooding, poor soil
bearing conditions, and any other hazards peculiar to the site.
m. An erosion review showing how erosion control will be achieved, and illustrating plans or
programs that may be required by any existing soil erosion and sedimentation ordinance.
7. Environmental Impact Statement. When an environmental assessment is required, it shall include the
following information concerning the site of the proposed use:
a. The name and address of the applicant.
b. A description of the applicant's proprietary interest in the site of the proposed use.
c. The name, address, and professional qualifications of the proposed professional design team
members, including the designation of the person responsible for the preparation of the
environmental impact statement.
d. The description and purpose of the proposed use.
e. Six copies and one reproducible transparency of a schematic use plan of the proposed use showing
the general location of the proposed use and major existing physical and natural features on the site,
including, but not limited to, watercourses, rock outcropping, wetlands, and wooded areas.
f. The location of the existing utilities and drainage ways.
g. The location and notation of public streets, parks, and railroad and utility rights-of-way within or
adjacent to the proposed use.
h. The general location and dimensions of proposed streets, driveways, sidewalks, pedestrian ways,
trails, off-street parking, and loading areas.
i. The general location and approximate dimensions of proposed structures.
j. Major proposed change of land forms such as new lakes, terracing, or excavating.
k. Approximate existing and proposed contours and drainage patterns, showing at least five-foot
contour intervals.
l. Sketches showing the scale, character, and relationship of structures, streets, or driveways, and
open space.
m. Approximate location and type of proposed drainage, water and sewage treatment and disposal
facilities.
n. A legal description of the property.
o. An aerial photo and contour map showing the development site in relation to the surrounding area.
p. A description of the physical site, including its dominant characteristics, its vegetative character, its
present use, and other relevant information.
q. A soil review giving a short descriptive summary of the soil types found on the site and whether the
soil permits the use of septic tanks or requires central sewer. The review may be based on the
"United Soil Classification System" as adopted by the United States Government Corps of
Engineers and Bureau of Reclamation, dated January 1952, or the natural cooperative soil survey
classification system, and the standards for the development prospects that have been offered for
each portion of the site.
r. A natural hazards review consisting of a list of natural hazards such as periodic flooding, poor soil
bearing conditions, and any other hazards peculiar to the site.
s. A substrata review including a descriptive summary of the various geologic bedrock formations
underlying the site, including the identification of known aquifers, the approximate depths of the
aquifers and, if being tapped for use, the principal uses to be made of these waters, including
irrigation, domestic water supply, and industrial usage.
t. An erosion review showing how erosion control will be achieved, and illustrating plans or
programs that may be required by any existing soil erosion and sedimentation ordinance.
u. At a minimum, plans for compliance with all of the following standards shall be required for
construction and post-construction periods:
• Surface drainage designs and structures are erosion proof through control of the direction,
volume, and velocities of drainage patterns. These patterns shall promote natural vegetation
growth that are included in the design in order that drainage waters may be impeded in their
flow and percolation encouraged.
• The design shall include trash collection devices when handling street and parking drainage
to contain solid waste and trash.
• Watercourse designs, control volumes, and velocities of water to prevent bottom and bank
erosion. In particular, changes of direction shall guard against undercutting of banks.
• If vegetation has been removed or has not been able to occur on surface areas such as infill
zones, it shall be the duty of the developer to stabilize and control the impacted surface
areas to prevent wind erosion and the blowing of surface material through the planting of
grasses, and windbreaks and other similar barriers.
8. Driveways. The construction, improvement, and maintenance of a driveway shall be permitted for any
dwelling or other permanent building allowed in a critical dune area, including a dwelling or other
permanent building approved under this ordinance or a lawful nonconforming use, subject only to
applicable permit requirements under Sections 35312 through 35325 of Part 353 of Public Act 451 of
1999, as amended, and the following:
a. A driveway shall be permitted either to the principal building or, in the sole discretion of the
applicant, to an accessory building, under the provisions of this ordinance. Additional driveways, if
any, shall meet the applicable requirements for any other use under this ordinance. The
development of a plan for a driveway should include consideration of the use of retaining walls,
bridges, or similar measures, if feasible, to minimize the impact of the driveway, parking, and
turnaround areas, and the consideration of alternative locations on the same lot of record
b. Driveways on slopes steeper than a 1-foot vertical rise in a 4-foot horizontal plane, but not steeper
than a 1-foot rise in a 3-foot horizontal plane, shall be in accordance with a site plan submitted with
the permit application and prepared for the site by a registered professional architect or licensed
professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restabilization, by design elements including vegetation, cut-and-fill, bridges,
traverses, and such other elements as are required in the judgment of the architect or
engineer to meet these requirements.
c. Driveways on slopes steeper than a 1-foot vertical rise in a 3-foot horizontal plane shall be in
accordance with a site plan submitted with the permit application and prepared for the site by a
licensed professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restabilization, by design elements including vegetation, cut-and-fill, bridges, traverses,
and such other elements as are required in the judgment of the engineer to meet these
requirements. The engineer shall certify under seal that the driveway is not likely to
increase erosion or decrease stability.
d. Temporary construction access for all construction, including new construction, renovation, repairs,
rebuilding, or replacement, and repair, improvement, or replacement of septic tanks and systems,
shall be allowed for any use allowed in a critical dune area for which a driveway is not already
installed by the owner, subject only to the requirements that the temporary access shall not involve
a contour change or vegetation removal that increases erosion or decreases stability except as can
be restabilized upon completion of the construction. The temporary access shall be maintained in
stable condition, and restabilization shall be commenced promptly upon completion of the
construction.
9. Utilities. A use needed to maintain, repair, or replace existing utility lines, pipelines, or other utility
facilities within a critical dune area that were in existence on July 5, 1989, or were constructed in
accordance with a permit under this section or under Part 353 of the Natural Resources and Environmental
Protection Act, being Act 451 of the Public Acts of 1994, as amended, is exempt for purposes for which
the permit was issued from the operation of this section if the maintenance, repair, or replacement is
completed in compliance with all of the following:
a. Vehicles shall not be driven on slopes greater than 1-foot vertical rise in a 3-foot horizontal plane.
b. All disturbed areas shall be immediately stabilized and revegetated with native vegetation
following completion of work to prevent erosion.
c. Any removal of woody vegetation shall be done in a manner to assure that any adverse effect on
the dune will be minimized and will not significantly after the physical characteristics or stability of
the dune.
d. To accomplish replacement of a utility pole, the new pole shall be placed adjacent to the existing
pole, and the existing pole shall be removed by cutting at ground level.
e. In the case of repair of underground utility wires, the repair shall be limited to the minimal
excavation necessary to replace the wires by plowing, small trench excavation, or directional
boring. Replacement of wires on slopes steeper than 1-foot vertical rise in a 4-foot horizontal plane
shall be limited to installation by plowing or directional boring only.
f. In the cases of repair or replacement of underground pipelines, directional boring shall be utilized,
and if excavation is necessary to access and bore the pipeline the excavation area shall be located
on slopes 1-foot vertical rise in a 4-foot horizontal plane or less.
10. Accessibility. Notwithstanding any other provision of this section, at the request of the applicant, the
construction, improvement and maintenance of accessibility measures shall be permitted for any dwelling
or other permanent building allowed in a critical dune area, including a dwelling or other permanent
building approved under this section or a lawful nonconforming use, subject only to applicable permit
requirements of this section and the following:
a. Accessibility measures on slopes steeper than 1-foot vertical rise in a 4-foot horizontal plane,
but not steeper than a 1-foot vertical rise in a 3-foot horizontal plane, shall be in accordance
with a site plan submitted with the permit application and prepared for the site by a registered
professional architect or licensed professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restablization, by design elements including vegetation, cut-and-fill, bridges, traverses,
and such other elements as are required in the judgement of the architect or engineer to
meet these requirements.
b. Accessibility measures on slopes steeper than a 1-foot vertical rise in a 3-foot horizontal plane
shall be in accordance with a site plan submitted with the permit application and prepared for
the site by a licensed professional engineer. The site plan shall include:
• Storm water drainage that provides for disposal of storm water without serious erosion,
• Methods for controlling erosion from wind and water, and
• Restablization, by design elements including vegetation, cut-and-fill, bridges, traverses,
and such other elements as are required in the judgement of the architect or engineer to
meet these requirements. The engineer shall certify under seal that the accessibility
measures are not likely to increase erosion or decrease stability.
The choice of components for an accessible route under American national standards institute standard
402.2 shall be at the option of the applicant.
11. Prohibited Uses. The following uses are not permitted in a critical dune area:
a. The disposal of sewage on-site unless the standards of applicable sanitary codes are met or
exceeded.
b. A use that does not comply with the minimum setback requirements required by rules that are
promulgated under part 323 of Public Act 451 of 1994.
c. 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,
except those 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 Planning Commission.
d. Production facilities regulated under parts 615 and 625 of Act 451 of 1994, except those 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 Planning Commission.
12. Non-Permitted Uses, Unless a Variance is Granted. Unless a variance is granted, the following uses are
not permitted 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 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.
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 Zoning Administrator determines that it is more likely
than not to increase erosion or decrease stability.
d. Sylvicultural practices, as described in the "Forest Management Guidelines for Michigan",
prepared by the Society of American Foresters as revised in 2010, if the City of Muskegon
determines that they are more likely than not to increase erosion or decrease stability.
e. A use that involves a vegetation removal if the Zoning Administrator determines that it is more
likely than not to increase erosion or decrease stability.
13. Site Plan Review. When reviewing a site plan submitted, along with all the application information
required, the Zoning Administrator shall:
a. Ensure that the requirements of the zoning ordinance have been met and the plan is consistent
with existing laws.
b. Determine whether the advice or assistance of Muskegon County will be helpful in reviewing a
site plan, and if so, to so seek it.
c. Recommend alterations of a proposed development to minimize adverse effects anticipated if
the development is approved and to ensure compliance with all applicable state and local
requirements.
d. Determine that the proposed use will ensure and enhance the diversity, quality, function and
values of the critical dune in a manner that is compatible with private property rights; allows for
compatible economic development and multiple human uses of the critical dune, using the
most competent, accurate and reliable information and scientific data available.
14. Use Standards. Any lot or parcel which in whole or part which falls within the Dune Overlay Zone and/or
within 250 feet outside the Dune Overlay Zone that is determined by the Planning Commission to be
essential to the hydrology, ecology, topography, or integrity of a critical dune area shall not be used except
upon receipt of a permit from the Zoning Administrator. No zoning permit shall be issued for the use of
land within this zone or within 250 feet outside the zone that is determined by the Planning Commission to
be essential to the hydrology, ecology, topography, or integrity of a critical dune area until a site plan
meeting the requirements of this Section and those of Article XXIII, Section 2330, have been met. If
requested, the Planning Commission will make the final determination as to whether or not these standards
have been met and shall exercise its lawful discretion in all cases in favor of protection of the critical dune
area.
15. Prohibition of Construction Without Permit. No grading or clearing of a site shall be done prior to issuance
of a zoning permit as required in this Ordinance.
16. Special Use Project Review Procedures. A proposed special use project shall be reviewed and a
recommendation for approval, approval with conditions, or denial is made by the Planning Commission
pursuant to the special use procedures of this ordinance shall be completed.
17. Department of Environmental Quality Review. Prior to issuing a permit allowing a special use project
within a critical dune area, the Planning Commission shall submit the special use project application and
site plan and their proposed decision to the Department of Environmental Quality, Land and Water
Management Division following the procedures of this ordinance.
18. Nonconforming Uses. The lawful use of land or a structure, as existing and lawful within a critical dune
area in the time of the adoption of this overlay zone, may be continued although the use of that land or
structure does not conform to the provisions of this overlay zone. The continuance, completion, restoration,
reconstruction, extension or substitution of existing nonconforming uses of land or a structure may
continue consistent with the nonconforming use requirements of this Ordinance. See Article XXII,
Section2202.
19. Rebuilding of Lawful Structures. A structure or use located in a critical dune area that is destroyed by fire,
other than arson for which the owner is found to be responsible, or an act of nature, except for erosion, may
be rebuilt or replaced if the structure or use was lawful at the time it was constructed or commenced; and a
replacement structure and its use may differ from that which was destroyed if it does not exceed in size or
scope that which was destroyed.
20. Variance. The Zoning Board of Appeals may grant a variance from the requirements of this overlay zone
if an unreasonable hardship will occur to the owner of the property if the variance is not granted. The
procedural requirements of Article XXIII (Site Plan Review) and Article XXV (Zoning Board of Appeals)
shall be adhered to. A variance shall be subject to the following limitations:
a. The Zoning Board of Appeals may issue variances under Article XXV of the zoning ordinance
if a practical difficulty will occur to the owner of the property if the variance is not granted. In
determining whether a practical difficulty will occur if a variance is not granted, primary
consideration shall be given to assuring 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 practical difficulty will occur to the owner of the property if the
variance is not granted, a variance shall be granted under this Section unless the Zoning Board
of Appeals determines that the use will 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:
• The diversity of the critical dune areas within the local unit of government.
• The quality of the critical dune areas within the local unit of government.
• The functions of the critical dune areas within the local unit of government.
b. The decision of the Zoning Board of Appeals 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 denying a variance shall document, and any
review upholding the decision shall determine, all of the following:
• That the City of Muskegon has met the burden of proof under subsections 1A
through 1C.
• That the decision is based upon sufficient facts or data.
• That the decision is the product of reliable scientific principles and methods.
• That the decision has applied the principles and methods reliably to the facts.
• That the facts or data upon which the decision is based are recorded in the file.
c. The City of Muskegon shall not require an environmental site assessment or environmental
impact statement for a variance except for a special use project.
d. A variance shall not be granted from a setback requirement provided for under Section 35034
pursuant to Part 353 of the Public Act 451 of 1994 unless the property for which the variance is
requested is one of the following:
• A nonconforming lot of record that is recorded prior to July 5, 1989, and that becomes
nonconforming due to the operation of Part 353.
• A lot legally created after July 5, 1989 that later becomes nonconforming due to natural
shoreline erosion.
• 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.
21. Penalties. In addition to the penalty provisions of this Ordinance, the provisions of Public Act 451 of 1994
shall apply in the event of any violation. Pursuant to the Public Act, a court may impose on a person who
violates any provision of this Dune Overlay Zone, or a provision of a permit issued hereunder, a civil fine
of not more than $5,000 for each day of violation, or order a violator to pay the full cost of the full cost of
restabilization of a critical dune area or other natural resource that is damaged or destroyed as a result of a
violation, or both. If a person is ordered by the Zoning Administrator to restore a critical dune that has
been degraded by that person, the Zoning Administrator shall establish a procedure by which the
restoration of the critical dune area is monitored to assure that the restoration is completed in a satisfactory
manner.
22. Applicable Law. Incorporated by reference herein is Part 353, Michigan Natural Resources and
Environmental Protection Act, PA 451 of 1994, as amended.
23. Severability. If any section, clause, or provision of this Ordinance be declared unconstitutional or otherwise
invalid by a court of competent jurisdiction, said declaration shall not affect the remainder of the
Ordinance. The City Commission hereby declares that it would have passed this Ordinance and each part,
section, subsection, phrase, sentence and clause irrespective of the fact that any one or more parts, sections,
subsections, phrases, sentences or clauses be declared invalid. However, if any provision of the Ordinance
is declared invalid, the City must seek written confirmation from the DEQ that the Ordinance still complies
with Part 353, Michigan Natural Resources and Environmental Protection Act, PA 451 of 1994, as
amended.
This ordinance adopted:
Ayes:______________________________________________________________
Nayes:_____________________________________________________________
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: _________________________________
Ann Meisch, MMC, City Clerk
CERTIFICATE
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon County,
Michigan, does hereby certify that the foregoing is a true and complete copy of an ordinance adopted
by the City Commission of the City of Muskegon, at a regular meeting of the City Commission on the
12th day of December, 2017, at which meeting a quorum was present and remained throughout, and
that the original of said ordinance is on file in the records of the City of Muskegon. I further certify
that the meeting was conducted and public notice was given pursuant to and in full compliance with
the Michigan Zoning Enabling Act, Public Acts of Michigan No. 33 of 2006, and that minutes were
kept and will be or have been made available as required thereby.
DATED: ___________________, 2017. __________________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish: Notice of Adoption to be published once within ten (10) days of final adoption.
CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on December 12, 2017, the City Commission of the City of Muskegon adopted
an ordinance to amend Section 2310 of the zoning ordinance to adopt a local critical dune
ordinance. Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of
the City Clerk in the City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business
hours.
This ordinance amendment is effective ten days from the date of this publication.
Published ____________________, 2017. CITY OF MUSKEGON
By _________________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
23
CRITICAL DUNE AREAS
VETERANS MEMORIAL PARK
CA
U
SE
W
AY
Muskegon City Limits
Critical Dunes
BR
31
TO
RICHARDS PARK M
-1
20 TO M-120
BR 31 SB
31 NB
M-120 TO BR
PUBLIC BOAT LAUNCH
0
12
M-
TO
NB
31
BR
BA
YO
U
A
TAW
BU
TLE
R
OT
CR ADAMS
OS
S
SB
MARSHALL
31
LANGLEY
RN
CAMPBELL
BR
LEONARD
STE
WE
NB
JAC
KSO
31
N
MARQUETTE
BR
N
SO
CHARLES
CK
ERI
FISHERMAN'S LANDING
JACKSON
IUS
TAV
MCLAREN
OC
HERRICK
GID
BA
ALVA
D IN
YU
GS
GID
D IN G SUMNER
HA S
WOOD
LL
WESLEY
VIR
I D IA
N
TERRACE POINT MARINA
VIRIDIAN
EASTERN
TER
MA
RA
C E
RS
H
WHITE
NT
N
TO
EM
FARMERS MARKET AL
OI
ER
W
EP
AL
C
D
MU
RA
AY
CL
RP
TER
OAK
RA
HY
TH
BO
RN
E
LE
1S
ORCHARD
RT
CE
SCOTT
T
MY
DA
PIN
R
IS
SP
RR
E
RIN
O
M
EMERALD
G
4T
AMITY
3R
H
TE
D
RR
FORK
N
TO LE
AC
AL RT
PORT CITY PRINCESS W MY
E
CITY HALL ALLEN
ALLEN
LC WALKER ARENA
LST
M
JAY
AR
T
APPLE
HACKLEY PARK
5T
RD
H
N CO
RN CO
TE
ES
SO
W HAMILTON ADA ADA
PHI
RD
A
2ND
FO N A
RT IO
HA
HERITAGE LANDING HOUSTON
AM
ISABELLA
BR
OS
NA
MAPLE
A
DI
IA
R
STE AR
E
EB MONROE AW
HARTSHORN BOAT LAUNCH
WILLIAMS
W
DEL
CHESTNUT
SP
RI
RK
PA
N
TE MCC LAKESHORE FITNESS CENTER
G
STA MERRILL
JEFFERSON
N MCLAUGHLIN
KE
GO ROTARY PARK
S
MU
CHANNEL HARTSHORN MARINA
RA
E
IN
ER
NS
HIL
MUSKEGON DOG PARK TH LIN L
OM
CA GH CATAWBA
USS SILVERSIDES SUBMARINE MUSEUM STRONG LAU
LL MC
N RI
O ER
LTO
N HARBOUR TOWNE BEACH LAKESHORE YACHT HARBOR G M
H
KE
7T
WESTERN E
ET
FU US RO
H
BR
11
NN
M N
TH
OW
O N
9T
BA
KE
M O
AS
H
W
NE
TA
AR
LIGHTHOUSE PARK M G CA BENTON
HARBOUR TOWNE MARINA
TH
N IN
RO HL
UR
ST MORRALL UG R
MICHIGAN LA UE
NELSON
S MC BA
MAR INA VIEW PU
HUDSON
M
RA
JEFFERSON
CA
TOWNE
M
MARGARET DRAKE ELLIOT PARK IRWIN
SO
RODGERS
M
WASHINGTON WASHINGTON OOSTERBAAN
HARBOUR
FRANKLIN
8TH
WATSON
PINE
HENRY
L
HIL
E ON N
PIG IM
JIROCH
SIMPSON S
HI GRAND GRAND GRAND
AU
GH
RN
GRAND
LEAHY
HA
GLADE
R
GRAND
BE
BA
CLINTON
N
BR IGHTO
AC
D
NA
N
H
IA
SA
IND
ST
SOUTHERN
RE
BE
TERRACE
ET
AC
WINDWARD
H
NE
IO
OH
LS
ON
FOREST FOREST
M
5TH
BEIDLER
CG FOREST
RA FOREST FOREST FOREST
ARLINGTON F
MESSLER
SMITH
T
PARK IRELAND
VE
RN IRELAND
GLADE
PERE MARQUETTE PARK O DALE
DAVIS
GLADE
N IV DALE DALE DALE DALE
RUDDIMAN
Y
MILWAUKEE CLIPPER
ELWOOD
DALE
SC DALE
H EL
HOYT
UY
MCGRAFT
M
LE
DIVISION
R
LARCH LARCH
6TH
LARCH
WN
ER
LARCH
LA LARCH
CLINTON
LM
OD
WO
PA
JEFFERSON
JARMAN
MCILWRAITH
ED
DYSON
MANZ
GE
WI OX M LAKETON
FAIRVIEW
LC O
LC LAKE EXPRESS FERRY
WA
OX
WI O
CH
RE
TE
ER
R
G
RY
RO RE
BI EL
MUSKEGON YACHT CLUB EY
DOWD
N
LEAHY
SO
S
RK
N
5TH
ALPHA
SANFORD
N
O
Y
PLU VA
PSO
ER
W
M N
OM
ER
M
DE
TH ALPHA
FRANKLIN
O
AT
NEVADA
JIROCH
RL
COMMERCE
TG
TEMPLE
I
W
S
N
ON
WINDSOR HOLBROOK
N
FRI
DE
N
O
ED
LA
RS
M
SB
G
N
O
PA
TO
EW
IE
N
KEA HOLBROOK
GREAT LAKES MARINA
AT
CLINTON
REYNOLDS
HOWDEN
PECK
ER
RO
TORRESEN MARINE IL SHELBY
SO
GRAND TRUNK LAUNCH N
MILLARD BLUFFTON BAY MARINA
BARCLAY
9TH
YOUNG
8TH
YOUNG
BALCOM'S MARINA N
ISO
GLADE
RR YOUNG
HA
LYMAN
BEIDLER
BLO
LAKE DUNES
PARK
HUDSON
N COTTAGE GROVE
DG
SO
CROWLEY
P
KINSEY
ETT
M
SA
ADDISON
WOODCREEK DELANO
FAIR
BO
WILSON
PARSLOW
WILSON
YL
MA
E
GLADE
NN
MC
BOURDON
ROYALE GLEN
VAN DINTHER
MCGRAFT PARK
CR
LAKESHORE
HANCOCK
AC
RV
LEBOEUF
G
KEN
N E
TO G
TORRENT
FF TA
CLIFFORD
U T ER ROYALE
BLODGETT
BL
SHERIN
LA RUE
CO MIN
LA
HARRISON RO
RK
D HARRISON
O SE HACKLEY
IN
O W HACKLEY
M
OO
MO
W
RF
CG
D
SU
RA
ON
LINCOLN
F
POLISKI
RT
T
BEIDLER
DE
CO
0 1,500 3,000 Feet
PK
O
ES
STEIN
U
NM
R
BEACHWOOD PARK
N
TR
AR
N
DU
RTO
Y
MO IN G
CL
N
RD
K
LEON
HA
E
CR
MEURER
U
GLADE
N
B
FOUNTAIN
EE
GLEN KV
GROVE
VINCENT
GLEN
WICKHAM
I EW
BARNEY
MUSKEGON COUNTRY CLUB BARNEY
CUMBERLAND
D FAIRLAWN
O
ESTES
O
W HARDING
LT IN G
BO HA
RD S ON HADDEN RIDGE
SIS
PAR
K
CITY OF MUSKEGON WILLIAMS & WORKS - NEDERVELD
Sign up for City of Muskegon Emails