Act 179 of the Public Acts of Michigan of 2001 ("Act 179) an amendment to the City and Village Zoning Act, Act 207 of the Public Acts of Michigan of 1921, as amended, requires that a city who has adopted a zoning ordinance having a population of one thousand eight hundred (1,800) or more and having undeveloped land zoned for residential development at a certain density must adopt provisions in its zoning ordinance known as "open space preservation" provisions which permit land satisfying specified criteria to be developed, at the option of the landowner, with the same number of dwellings on a portion of the land specified in the zoning ordinance, but not more than eighty (80) percent, that, as determined by the city, could otherwise be developed, under existing ordinances, laws and rules, on the entire land area. The purpose of this chapter is to adopt open space preservation provisions consistent with the requirements of Act 179.

(Ord. No. 03-2, § 3, 2-18-03)

A.

Land may be developed under the provisions of this chapter only if each of the following conditions is satisfied:

1.

The zoning district in which the land is located shall permit development at a density equivalent to two or fewer dwelling units per acre, if the land is not served by a public sewer system, or shall permit development at a density equivalent to three or fewer dwelling units per acre, if the land is served by a public sanitary sewer system;

2.

The development of land under this chapter shall not depend upon the extension of a public sanitary sewer or a public water supply system to the land, unless the development of the land without the exercise of the clustering option provided by this chapter would also depend on such extension;

3.

The clustering option provided pursuant to this chapter shall not have previously been exercised with respect to the same land; and

4.

The undeveloped twenty (20) percent (or more) portion of the land must remain in a perpetually undeveloped state by way of a binding legal restriction.

B.

If all of the preceding conditions are satisfied, the land may be developed, at the option of the landowner, in accordance with the provisions of this chapter.

(Ord. No. 03-2, § 3, 2-18-03)

Only those land uses permitted by the zoning district in which the land is located shall be permitted on land developed or used pursuant to the provisions of this chapter.

(Ord. No. 03-2, § 3, 2-18-03)

A.

The application requirements and review procedures for land proposed to be developed pursuant to the provisions of this chapter shall be those stated in chapter 18 of this appendix, governing site plans, except as otherwise provided in this section.

B.

In addition to the application materials required by chapter 18 of this appendix, an application for the development of land under the provisions of this chapter shall include the following:

1.

An existing, zoning plan prepared for the purpose of demonstrating the number of dwelling units that could be developed on the land under its existing zoning if the clustering option provided by this chapter were not exercised. The existing zoning plan may be conceptual in nature but shall include at least the following information:

a.

Date, north arrow and scale, which shall not be more than 1" = 100', and, in all cases, the scale shall be the same as that utilized for the site plan illustrating proposed development using the clustering option permitted by this chapter.

b.

Location of streets and driveways.

c.

Location of all lots, illustrating lot area and width and depth of each lot to demonstrate compliance with the minimum requirements of the applicable zoning district.

d.

Location of all utilities that would be necessary to serve a development under the existing zoning plan and which would not be located within any public road right-of-way or private street easement, or on buildable lots. Such utilities include, but are not limited to, storm water retention or detention basins, public sewage treatment systems and public water supply facilities.

e.

If development under the existing zoning plan would require the use of septic tanks and drain fields, the existing zoning plan shall illustrate the location of all septic tanks and drain fields. The applicant shall submit proof that the proposed septic tank and drain field location for each lot would be approved, or has been approved, by the Kent County Health Department.

f.

The existing zoning plan shall illustrate all unbuildable land, which shall include slopes of twenty (20) percent or greater, regulated and unregulated wetlands, public utility easements, flood plains, and other similar features which limit or prevent construction of buildings or roads. Each lot shown on the existing zoning plan shall contain at least 75% of the minimum requirement of the minimum lot area of the applicable district.

2.

A copy of the conservation easement, plat dedication, restrictive covenant or other legal instrument that would run with the land, and that would have the legal effect of preserving in perpetuity the open space required by this chapter in an undeveloped state. Such legal instrument shall be reviewed by the city attorney prior to recording, and shall be subject to the approval of the city attorney, consistent with the terms of this chapter. The legal instrument shall:

a.

Indicate the proposed permitted use(s) of the undeveloped open space.

b.

Require that the open space be maintained in perpetuity in an undeveloped condition, without buildings, structures or other improvements, except such drainage improvements, utility lines, riding trails, hiking trails, picnic areas, park or play ground equipment, agricultural structures or similar improvements that are approved by the planning commission.

c.

Require that the undeveloped open space be maintained by the parties who have an ownership interest in the undeveloped open space.

d.

Provide standards for scheduled maintenance of the undeveloped open space, including necessary pruning and harvesting of trees and new plantings.

3.

The site plan for the clustering option permitted by this chapter shall include the following minimum information, in addition to that required by chapter 18 of this ordinance:

a.

Date, north arrow and scale which shall not be more than 1" = 100', and, in all cases, the scale shall be the same as that utilized for the existing zoning plan.

b.

The site plan shall clearly illustrate the portions of the land that are proposed to remain in a perpetually undeveloped state and the portions of the land that will be used for clustered development.

c.

The site plan shall indicate the total number of acres of land that are proposed to remain in a perpetually undeveloped state, the total number of acres of land that are proposed to be used for clustered development, and the percentage of each, as compared to the total site acreage.

d.

The site plan shall illustrate the location of all proposed lots and proposed building envelopes and shall indicate the lot area and width of each lot, and the proposed front, side and rear yard building setbacks. The number of proposed dwelling lots on the site plan shall not exceed the number of lots on the existing zoning plan, as approved by the planning commission, and reduced to accommodate non-dwelling structures, if necessary, as described in section 5.L. hereof.

e.

The site plan shall illustrate the location and type of all proposed structures or improvements that are not dwellings.

f.

If the clustered development will include septic tanks and drain fields, the site plan shall illustrate the location of all septic tanks and drain fields. The applicant shall submit proof that the proposed septic tank and drain field location for each lot has been approved by the Kent County Health Department.

4.

If the development is to be served by public or private streets, proof that the city has approved the design, layout and construction of the streets.

C.

When reviewing an application submitted pursuant to this chapter, the planning commission shall determine whether the existing zoning plan accurately reflects the number of dwelling units that could be developed on the land under its existing zoning if the clustering option provided by this chapter were not exercised. If the planning commission determines that the number of dwellings illustrated on the existing zoning plan exceeds the number of dwellings that could be permitted on the land if it were developed under its existing zoning, if the clustering option provided by this chapter were not exercised, the applicant shall submit a revised site plan for the clustering option reflecting the permitted number of dwellings, as determined by the planning commission.

D.

If a site plan satisfies all requirements of this ordinance, all requirements of this chapter and all conditions of approval imposed by the planning commission, the planning commission shall approve the site plan. If the cluster option permitted by this chapter is proposed as a platted subdivision or a site condominium development, the applicant shall also demonstrate compliance with all requirements of the Land Division Act, Act 283 of the Public Acts of Michigan of 1967, as amended, before the panning commission may approve the development.

(Ord. No. 03-2, § 3, 2-18-03)

A.

Required Open Space. At least twenty (20) percent, but no more than forty (40) percent of the land proposed for development under the provisions of this chapter shall remain in a perpetually undeveloped state (i.e., "open space") by means of a conservation easement, plat dedication, restrictive covenant or other legal instrument that runs with the land, as approved by the city attorney. The following areas shall not constitute open space:

1.

The area within all public street rights-of-way.

2.

The area within all private street easements.

3.

Any easement for overhead utility lines, unless adjacent to open space.

4.

The area within a platted lot, site condominium unit or metes and bounds parcel occupied by a structure not permitted to be located in open space.

5.

Off street parking and/or loading areas.

6.

Detention and retention ponds.

7.

Community drain fields.

8.

Wetlands, creeks, streams, ponds, lakes, or other bodies of water.

9.

Floodplains and steep slopes (twenty (20) percent or over).

B.

Standards for Open Space. The following standards shall apply to the open space required pursuant to this chapter:

1.

The open space shall not include a golf course.

2.

The open space may include a recreational trail, picnic area, children's play area, greenway, linear park, an agricultural use or other use which, as determined by the planning commission, is substantially similar to these uses.

3.

The open space shall be available for all residents of the development, subject to reasonable rules and regulations. The open space may be, but is not required to be, dedicated to the use of the public.

4.

If the land contains a lake, stream or other body of water, the planning commission may require that a portion of the open space abut the body of water.

5.

A portion of the open space shall be located along the public street frontage abutting the land. The depth of this area shall be at least 50 feet, not including public right-of-way, and this area shall be left in its natural condition or be landscaped to help reduce the view of houses on the land from the adjacent roadway and to preserve the rural view.

6.

A portion of the open space shall be reasonably useable by the residents of the land for passive recreational uses such as hiking or picnicking.

7.

Open space shall be located so as to be reasonably accessible to the residents of the clustered development. Safe and convenient pedestrian access points to the open space from the interior of the clustered development shall be provided.

8.

Open space shall be located so as to preserve significant natural resources, natural features, scenic or wooded conditions, bodies of water, wetlands or agricultural land. If these type of land features are not present on the land, then the open space shall be centrally located, along the road frontage.

9.

Open space shall be linked with any adjacent open spaces, public parks, bicycle paths or pedestrian paths, unless otherwise approved by the planning commission.

C.

Use of Open Space. All dwelling units and other structures and improvements shall be located outside that portion of the land designated as open space. However, the planning commission, in its discretion, may permit structures or improvements to be located in the open space if the structures and/or improvements would be consistent with the designated purpose of the open space. By way of example only, park or playground equipment could be permitted on open space designated for recreational use, or agricultural structures could be permitted on open space designated for agricultural use.

D.

Compliance With Zoning District. The development of land under this chapter shall comply with all requirements of this ordinance applicable to the zoning district in which the land is located, except those setback and yard size requirements that must be adjusted to allow the clustering option permitted under this chapter.

E.

General Design Standards.

1.

All lots within a clustered development shall be provided access by an interior public or private street. No individual lot shall have direct access to any street other than those constructed to serve the clustered development.

2.

Areas in which natural vegetation and terrain is left undisturbed shall be provided along existing public roads and adjacent property lines of sufficient width to screen buildings from adjacent roadways and properties.

3.

Lots shall be located toward the interior of the development, or shall be located behind existing natural features so as to screen dwellings from existing public roads and adjacent properties.

4.

The entrance or entrances to the development shall be no wider than necessary to accommodate any necessary acceleration lanes and provide adequate sight distance. Boulevards, landscaping, planters, fences and other amenities designed to call attention to the development may be permitted with the approval of the planning commission.

5.

The development shall be designed so as to minimize additional runoff from roads, roofs, driveways and other improvements. Further, the development shall be designed, to the maximum extent possible, to minimize runoff from improvements into lakes, streams and wetlands.

6.

The planning commission may require the preservation of existing desirable vegetation within lots, except as necessary for the construction of buildings, drain fields and driveways.

7.

The planning commission may require that individual lots have shared driveways to minimize the removal of vegetation or the alteration of existing slopes.

F.

Uniform Lot Size. Lots for dwellings in the clustered portion of the development shall be as uniform in area as is reasonably practicable, unless otherwise approved by the planning commission.

G.

Building Envelopes. The location and area of building envelopes, as proposed by the applicant, shall be subject to the review and approval of the planning commission. Building envelopes shall not be located on top of prominent hilltops, ridges or steep slopes, or in proximity to wetlands or other sensitive areas.

H.

Required Frontage. Each lot shall have a minimum of fifty (50) feet of frontage measured at the street right of way line.

I.

Lot Width. Each lot shall have a minimum width equal to no less than sixty (60) percent of the minimum lot width specified for the zoning district in which the land is located, unless otherwise approved by the planning commission.

J.

Maximum Number of Lots. The clustered portion of the development shall contain no more than the maximum number of dwelling lots, as determined from the existing zoning plan approved by the planning commission, and as reduced to reflect the inclusion of non-dwelling unit structures, if any, as described in subsection L. below.

K.

Non-Dwelling Unit Structures. Lots containing non-dwelling structures such as a clubhouse and its related amenities or an accessory building, shall be subject to all requirements of this chapter applicable to lots containing dwellings and shall further be subject to all other requirements of this ordinance and other city ordinances applicable to the type of structure proposed. However, the planning commission may, in its discretion, permit the enlargement of a lot containing a non-dwelling structure so as to reasonably accommodate it.

L.

Reduction in Lots for Non-Dwelling Structures. If structures other than dwellings, such as a clubhouse, are constructed on a lot in the clustered portion of the land, the number of dwelling lots permitted in the clustered portion of the land shall be reduced as follows:

1.

The area of a lot or lots occupied by non-dwelling structures, shall be calculated and then divided by the average area of a dwelling lot that could be situated in the clustered development if the non-dwelling structures were not included in the clustered development, as determined from the approved existing zoning plan. If this number is a fraction, it shall be rounded up to the nearest whole number.

2.

The number calculated under 1. above shall be subtracted from the number of dwelling lots that could be permitted in the clustered development in the absence of the non-dwelling structures, as determined from the approved existing zoning plan, in order to determine the maximum number of dwelling lots permitted to be included in the clustered portion of the development with the non-dwelling structures included.

M.

Perimeter Lots. Notwithstanding any other provision of this chapter, the planning commission may require that the clustered development be designed and constructed with lot sizes and setbacks on the perimeter that will be reasonably consistent with the lot sizes and setbacks of adjacent planned or existing uses.

N.

Sidewalks. Sidewalks shall be installed in the clustered portion of the development extending to the public right-of-way.

O.

Grading. Grading within the clustered development shall comply with the following requirements:

1.

To preserve the natural appearance of the land, all graded areas, cuts and fills shall be kept to a minimum. Specific requirements may be placed on the area of land to be graded or to be used for building, and on the size, height, and angles of cut-and-fill slopes and the shape thereof. Retaining walls may be required.

2.

All areas indicated as open space on the approved development plan shall be undisturbed by grading, excavating, structures or otherwise, except as permitted by the Planning Commission. Drainage improvements, utility lines, riding trails, hiking trails, picnic areas and similar recreational improvements and amenities may be placed in open space areas if approved by the planning commission.

3.

Grading within the clustered development shall be planned and carried out so as to avoid erosion, pollution, flooding or other adverse effects upon the land, and so as to have only such minimal effect upon the environmental characteristics of the land as may be reasonably feasible.

P.

Streets. Private streets within a clustered development shall conform to the private street requirements of the city. The planning commission may, however, following consultation with the fire chief and other public safety officials as appropriate, allow a reduction in the minimum right-of-way and roadbed width requirements for all or a portion of the street to minimize the removal of vegetation or alteration of natural slopes. The Planning Commission may require that portions of private streets with reduced widths be designated as one-way only.

Q.

Other Laws. The development of land under this chapter is subject to all other applicable city ordinances, state and federal laws, rules and regulations, including, but not limited to, rules relating to suitability of groundwater for on-site water supply for land not served by a public water system, and rules relating to the suitability of soils for on-site sewage disposal for land not served by public sanitary sewers.

(Ord. No. 03-2, § 3, 2-18-03)

A.

An approved clustered site plan and any conditions imposed upon its approval shall not be changed except upon the mutual consent of the planning commission and the applicant, except as otherwise stated below with respect to a minor change.

B.

A minor change which does not substantially alter the basic design or conditions of the site plan approved by the planning commission may be approved by the city manager who shall notify the planning commission of such change.

C.

The following items shall be considered minor changes:

1.

Reduction of the size of any building, building envelope or sign.

2.

Movement of buildings or signs by no more than ten feet.

3.

Plantings approved in the landscaping plan replaced with by similar types of plantings.

4.

Changes requested by the city for safety reasons.

5.

Changes which will preserve natural features of the land without changing the basic site layout.

6.

Other similar changes of a minor nature proposed to be made to the configuration, design, layout or topography of the site plan which are deemed by the city manager to be not material or significant in relation to the entire site and which the city manager determines would not have any significant adverse effect on the development or on adjacent or nearby lands or the public health, safety and welfare.

D.

The city manager may refer any decision regarding any proposed change in an approved site plan to the planning commission for review and approval (regardless of whether the change may qualify as a minor change). In making a determination on whether to refer a change to the planning commission for review and approval, the city manager may consult with the chairperson of the planning commission.

E.

If the city manager determines that a requested change in the approved site plan is not minor, re-submission to the planning commission for an amendment shall be required, and the consideration thereof shall take place in the same manner as for an original application.

(Ord. No. 03-2, § 3, 2-18-03)

The planning commission, in its discretion, may require reasonable performance guarantees or assurance deemed satisfactory to it under the circumstances of a particular development. Such arrangements shall be conditioned upon faithful compliance with all of the provisions and requirements of the approved clustered site plan, including any conditions thereto, and construction and placement of all the improvements required thereby. In its discretion, the planning commission may rebate, refund or permit the reduction of a proportionate share of the amount specified in a performance bond, letter of credit, or other written assurance, based upon the percent of improvements completed, as verified by the planning commission.

(Ord. No. 03-2, § 3, 2-18-03)

Each development permitted pursuant to this chapter shall be under construction within one year after the date of approval of the site plan by the planning commission. If this requirement is not met, the planning commission may, in its discretion, grant an extension not exceeding one year, provided that the applicant submits reasonable documentation that unforeseen difficulties or special circumstances have been encountered causing delay in the commencement of the development. If construction of the development has not begun within the one-year stated time period, or within any authorized extension thereof, any building permits issued for the development or any part thereof shall terminate and the applicant shall be required to obtain a new approval from the planning commission under the terms of this chapter.

(Ord. No. 03-2, § 3, 2-18-03)

Words and phrases used in this chapter, if defined in Act 179, shall have the same meaning as provided in Act 179.

(Ord. No. 03-2, § 3, 2-18-03)