November 27, 2018, Introduced by Rep. Hughes and referred to the Committee on Transportation and Infrastructure.
A bill to amend 2006 PA 110, entitled
"Michigan zoning enabling act,"
by amending section 205 (MCL 125.3205), as amended by 2012 PA 389.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 205. (1) A zoning ordinance is subject to all of the
following:
(a) The electric transmission line certification act, 1995 PA
30, MCL 460.561 to 460.575.
(b) The regional transit authority act, 2012 PA 387, MCL
124.541 to 124.558.
(2) A county or township shall not regulate or control the
drilling, completion, or operation of oil or gas wells or other
wells drilled for oil or gas exploration purposes and shall not
have jurisdiction with reference to the issuance of permits for the
location, drilling, completion, operation, or abandonment of such
wells.
(3)
An ordinance A local unit
of government shall not, by
ordinance or otherwise, prevent, prohibit, or deny a permit,
approval, or other authorization for the extraction, by mining, of
valuable
natural resources from any property
unless very by a
person with property, possessory, or contractual rights to do so if
both of the following apply:
(a) The natural resources are valuable. For the purposes of
this section, natural resources are valuable if a person, by
extracting the natural resources, can receive revenue and
reasonably expect to operate at a profit.
(b) Very serious consequences would not result from the
extraction
of those the natural resources. Natural resources shall
be
considered valuable for the purposes of this section if a
person,
by extracting the natural resources, can receive revenue
and
reasonably expect to operate at a profit.This state has a
paramount public interest in the conservation and development of
this state's valuable natural resources. Whether very serious
consequences would result from the extraction, by mining, of
natural resources shall be considered in light of this paramount
state interest.
(4)
A person challenging a zoning decision under subsection
(3)
has the initial burden of showing that there are valuable
natural
resources located on the relevant property, that there is a
need
for the natural resources by the person or in the market
served
by the person, and that no very serious consequences would
result
from the extraction, by mining, of the natural resources.
(5)
In determining under this section whether very serious
consequences
would result from the extraction, by mining, of
natural
resources, the standards set forth in Silva v Ada Township,
416
Mich 153 (1982), shall be applied and all of the following
factors
may be considered, if applicable:
(4) Notwithstanding anything to the contrary in this act or
any other statute or ordinance, the requirements of subsection
(3)(a) and (b) are met if the person seeking to extract natural
resources by mining submits to a local unit of government a plan
for the proposed extraction that includes all of the following:
(a) A demonstration that the person can, by extracting the
natural resources, receive revenue and reasonably expect to operate
at a profit.
(b) A general description of materials, methods, and
techniques that will be utilized for mining operations.
(c) A site plan showing the location of buildings, equipment,
stockpiles, roads, berms, or other features necessary to the mining
operations and demonstrating all of the following:
(i) A setback of the mining area from the nearest public
roadway or adjoining property line of not less than 50 feet.
(ii) A setback of equipment used for screening and crushing of
not less than 200 feet from the nearest public roadway or adjoining
property line, or not less than 300 feet from the nearest
residential dwelling occupied on adjacent property as of the date
of submittal of the plan for extraction.
(d) A description of the proposed haul routes to be used to
transport natural resources from the mining area to a primary road,
other than for local deliveries.
(e) Signs to be maintained on the boundaries of the mining
area, facing outward, spaced every 200 feet or closer, and stating
"NO TRESPASSING-MINING AREA".
(f) Stockpiles, other than screening berms, not exceeding the
higher of 70 feet above ground surface at the location of the
stockpile or 40 feet higher than the elevation of the adjoining
property at the nearest property line.
(g) Berming or other screening of the active mining area from
an occupied residence on an adjoining property to the extent
reasonably practicable. The screening may be accomplished by using
overburden to the extent available to construct berms of up to 6
feet in height along adjoining property lines or by other means
requested by the applicant.
(h) A description of processing activities that may include,
but are not limited to, washing, screening, crushing, and blending
of stone, sand, gravel, and other materials, including recycled
materials and other materials obtained from off site.
(i) A general description of the natural resources deposit.
(j) The sequence of mining, including proposed phasing, if
applicable.
(k) Surface overburden removal plans.
(l) A description of the depth from grade level from which the
natural resources will be removed.
(m) Proof of financial assurance for reclamation of the mining
area meeting the following requirements:
(i) Financial assurance shall be maintained during mining
operations and until reclamation has been substantially completed.
(ii) The amount of financial assurance shall be $1,500.00 per
acre disturbed by mining operations but not yet reclaimed,
excluding roadways, plant sites, and open water areas that will
remain after completion of reclamation.
(iii) The required financial assurance shall be adjusted
annually as necessary to ensure that it is sufficient to satisfy
the reclamation requirements of this section.
(iv) Financial assurance may consist, at the sole option of
the applicant, of a performance bond, surety, escrow, cash
certificate of deposit, or other equivalent security or combination
thereof. Financial assurance may also be met by a demonstration
that the applicant has sufficient financial resources to satisfy
the reclamation requirements of subdivision (m).
(n) Plans for reclamation of the mining area following
cessation of mining operations that include all of the following:
(i) Provision for grading, revegetating, and stabilization
that will minimize, to the extent practicable, soil erosion,
sedimentation, noise, off-site migration of dust, and public safety
concerns consistent with subsection (7).
(ii) Provision for reclaiming slopes of the banks of the
excavation not exceeding 3 feet horizontal to 1 foot vertical
measured from the nearest setback line into any area disturbed by
mining operations.
(iii) Where open water with a maximum depth in excess of 5
feet will result from mining operations, provision for reclaiming
slopes into the water not exceeding 1 foot vertical to 5 feet
horizontal maintained and extended into the water to a depth of 5
feet.
(5) As an alternative to subsection (4), and notwithstanding
anything to the contrary in this act or any other statute or
ordinance, the requirements of subsection (3)(a) and (b) are met if
the person seeking to extract natural resources by mining
demonstrates both of the following:
(a) That the person can, by extracting the natural resources,
receive revenue and reasonably expect to operate at a profit.
(b) That very serious consequences would not result from the
extraction of the natural resources by mining, considering the
following factors, as applicable:
(i) (a)
The relationship of extraction and
associated
activities with existing land uses.
(ii) (b)
The impact on existing land uses in
the vicinity of
the property.
(iii) (c)
The impact on property values in
the vicinity of the
property and along the proposed hauling route serving the property,
based on credible evidence.
(iv) (d)
The impact on pedestrian and
traffic safety in the
vicinity of the property and along the proposed hauling route
serving the property.
(v) (e)
The impact on other identifiable
health, safety, and
welfare interests in the local unit of government.
(f)
The overall public interest in the extraction of the
specific
natural resources on the property.
(6) If the applicant has made a prima facie case that the
requirements of subsection (4) or (5) are met, the burden of proof
shifts to the party challenging or opposing the proposed mining
activity in an administrative or judicial action challenging that
ordinance or action.
(7)
(6) Subsections (3) to (5) do not limit a local unit of
government's reasonable regulation of hours of operation, blasting
hours, noise levels, dust control measures, and traffic, not
preempted by part 632 of the natural resources and environmental
protection act, 1994 PA 451, MCL 324.63201 to 324.63223. However,
such regulation shall be reasonable in accommodating customary
mining
operations . and
shall not be more restrictive than the
following:
(a) For dust control, dust shall not exceed the standards
required pursuant to any applicable general or individual air
permit issued pursuant to part 55 of the natural resources and
environmental protection act, 1994 PA 451, MCL 324.5501 to
324.5542, or federal law.
(b) For noise, the 8-hour time-weighted average sound pressure
level in decibels measured at the common property line nearest to
the active mining area on a sound level meter using the A-weighting
network shall not exceed the greater of the following:
(i) 20 DB(A) above background levels.
(ii) The following levels for adjacent property:
(A) For residentially zoned property: 75 DB(A).
(B) For commercially zoned property: 85 DB(A).
(C) For industrial and all other zoning classifications: 90
DB(A).
(c) For ground vibration, all stationary machinery and
equipment shall be mounted and operated to prevent transmission of
ground vibration exceeding a displacement of 0.10 inches measured
anywhere outside of the property line. Blasting activity shall not
create any of the following at any residential building:
(i) Ground vibration in excess of that set forth in United
States Bureau of Mines Reports, RI 8507, Figure B-1 "Safe levels of
blasting vibrations for houses using a combination of velocity and
displacement".
(ii) Air blast in excess of 133 decibels at any residential
dwelling.
(d) For truck loading hours, customer truck loading shall be
permitted from at least 5 a.m. to 7 p.m. local time, Monday through
Saturday, or as otherwise specifically required by state or county
contract. These limitations only apply to the loading of trucks or
trailers for over-the-road transportation and do not apply to the
loading or unloading of railroad cars or ships, which shall be
permitted at any time.
(8) The 2018 amendatory act that amended this section applies
to the following:
(a) All requests for the extraction of natural resources by
mining submitted on or after the effective date of that amendatory
act.
(b) All requests for the extraction of natural resources by
mining pending on the effective date of that amendatory act or with
respect to which all administrative and judicial actions have not
been exhausted.
(9) (7)
This act does not limit state
regulatory authority
under
other statutes or rules.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.