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Re: E-M:/ Environmental Permits



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Enviro-Mich message from Gary Stock <gstock@net-link.net>
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Hmmm...

In Michigan and elsewhere we could find examples of moratoria on
rezoning, platting, residential buildng permits, and other local land
use activity.  For the moment, I'll spend no time trying to characterize
the (sometimes peculiar) legal basis for those, or their relative merit. 

However, there has long been a fundamental element of zoning law in
Michigan called the "interim ordinance":

   http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-125-3404

Such an ordinance goes into effect immediately (no publication delay),
controls for one year, and can be extended for two more years.

Its original purpose was to bridge the possibly long and contentious
time between "no zoning" and "zoned."  An unzoned rural Township would
set up a planning commission, to prepare a land use plan.  Long around
the same time, they'd appoint (or convert the PC to) a zoning board, to
prepare zoning consistent with the plan.  Either of those processes
could get hung up politically -- especially in the zoning phase.  An
interim ordinance kept folks from making crazy splits, bad plats, stupid
roads, and other stunts we've all been horrified to watch created
somewhere.  

That entire process transpired decades ago for most townships in
Michigan.  Hence, most municipalities have only a "planning commission,"
which has been empowered to do the job of both PC and ZB.

Strictly speaking, the statute specifies "an _initial_ zoning
ordinance."  However, I have seen at least one long-zoned and
_aggressively_ pro-development township (the Supervisor was a Realtor,
the Attorney a development partner with the Building Inspector, etc,)
invoke an interim ordinance to block certain kinds of local development
for a year or two.  

They did it (and stretched the intent of statute to do so) specifically
in response to serious political heat due to their own history of
free-wheeling rezonings and other favors for local developers.

But, if there is no "sustainability ordinance" for Michigan, the concept
of an "interim ordinance" while the plan is written and implemented
seems to fit.

In fact, a local municipality _might_ be able to try this in order to
create time to produce their own "sustainability ordinance."

No, IANAL!

GS


Anna Dorothy Graham wrote:
 
> I think it's certainly the case that the DEQ couldn't unilaterally
> decide not to issue permits on its own -- it would take either a lawsuit
> from citizens' groups, perhaps seeking an injunction against continued
> permitting on the grounds that the DEQ is already not fulfilling its 
> statutory function of enforcement with regard to existing permits, or
> it would take a mandate from above.  But the courts have supported
> moratoria on and denials of permits in land use cases: Tahoe-Sierra v.
> Tahoe Regional Planning Agency (535 U.S. 302), AVCO, Ramapo, and so on
> -- among other things, these cases stand for the proposition that you 
> can technically qualify for a building permit and own the land and 
> still not be allowed to proceed if the state's interests (including 
> environmental interests) intervene, and particularly if some sort of
> master plan for (shall we call it?) sustainable development is in 
> the works.

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Gary Stock                                        gstock@unblinking.com
UnBlinking                                   http://www.unblinking.com/
Googlewhack                                 http://www.googlewhack.com/

     The best proof for a claim that terrorists are crazy or evil
     would be to acknowledge that the White House is full of them

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