Act No. 179 of the Public Acts of Michigan of 2001 ("Act 179"), as amended, requires that cities having a population of 1,800 or more and having undeveloped land zoned for residential development at a certain density must adopt provisions in their zoning ordinances known as "open space preservation" provisions, which permit lands 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.

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

A.

Land may be developed under the provisions of this chapter only if all of the following conditions and requirements are satisfied:

(1)

The land is zoned as either the RR, R-1, or R-2 (but only for single-family dwellings) zoning district;

(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 an extension; and

(3)

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

B.

If all of the preceding conditions and requirements are satisfied, the land is eligible for development, at the option of the landowner, in accordance with the provisions of the chapter.

Only those residential 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.

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 22 (site plan review) of this ordinance. In the event of a direct conflict between Chapter 22 (site plan review) and this chapter, this chapter shall govern.

B.

In addition to the application materials required by Chapter 22 of this ordinance (including a site plan for the proposed development), an application for the development of land under the provisions of this chapter shall include the following:

(1)

A parallel 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 parallel plan shall be prepared by the developer showing a reasonable and feasible development under the requirements of the specific zoning district in which it is located and the requirements of any and all state, county, and other city regulations. All lots, roads, utilities, and other improvements shall be designed so that they do not adversely impact wetlands, floodplains, bodies of water, or drainage ways, as regulated by federal, state, county, or local agencies. Additionally, all wetlands, bodies of water, and slopes exceeding 12% shall also be shown.

It must be determined by the planning commission that this parallel plan is reasonably and feasibly able to be physically constructed and meet all current requirements, should the open space plan be denied or not constructed. If there is a question regarding water, slopes, septic, wetlands, or floodplains, the planning commission may request validation from the proper regulatory authority(s). If it is determined, through these responses, that the number or configuration of lots proposed is not allowed or reasonably feasible, the parallel plan shall be revised and resubmitted, minus that number or configuration of lots. Detailed engineering is not required at this stage.

The planning commission may also waive the submission of a parallel plan if it is determined that the number of housing units proposed for open space development is clearly below the number that would be permitted and reasonably feasible on the site. Such waiver must be recorded as part of the minutes of the planning commission.

(2)

The parallel 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 one inch equals 100 feet, and, in all cases, the scale shall be the same as that utilized for the site development plan illustrating the 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 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 parallel 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, community sewage treatment systems, and community water supply facilities.

(e)

If development under the parallel plan would require the use of septic tanks and drain fields, the parallel 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 Newaygo County Health Department.

(f)

The location of all portions of the land which make building for residential purposes difficult or impossible due to the presence of wetlands, severe slopes, bodies of water, flood plains, or other features prohibiting development for residential purposes.

(g)

Such other information as shall be requested by the planning commission.

(3)

A copy of the conservation easement, plat dedication, restrictive covenant, or other legal instrument that would permanently 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 and approved by the city attorney prior to recording, 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 playground equipment, or similar improvements that are approved by the planning commission.

(c)

Require that the undeveloped open space be maintained by 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 new trees and new plantings.

(4)

The site development plan for the clustering option permitted by this chapter shall include the following minimum information, in addition to that required by Chapter 22 of this ordinance:

(a)

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

(b)

The site development 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 development 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 development plan shall illustrate the location of all 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 lots on the site development plan shall not exceed the number of lots on the parallel plan, as approved by the planning commission, and reduced to accommodate non-dwelling structures, if necessary, as described in Section 19.06J.

(e)

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

(g)

Such other information as shall be requested by the planning commission.

(5)

If the development is to be served by public streets, verification that the public rights-of-way and streets comply with the city's right-of-way and street standards. If the development is a site condominium with private streets, verification that the private streets comply with the city's right-of-way and street standards.

C.

When reviewing an application submitted under the terms of this chapter, the planning commission shall determine whether the parallel 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 parallel 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 development plan for the clustering option reflecting the permitted number of dwellings, as determined by the planning commission.

D.

The planning commission shall review the site development plan and shall approve, approve with conditions, or deny the site development plan in accordance with this chapter and other applicable provisions of this ordinance. The basis for the decision and any conditions imposed relating to an affirmative decision shall be specified in the resolution of the planning commission approving or denying the site development plan. If approved or approved with conditions, the site development plan as approved shall become part of the record of approval.

E.

The planning commission may impose reasonable conditions in conjunction with the approval of a site development plan when necessary to effectuate the intent and purpose of this chapter and as provided in Chapter 22.

A.

Required open space. At least twenty (20%) percent of the land proposed for development under the provisions of this chapter shall remain in a perpetually undeveloped state 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 or site condominium unit.

(5)

Off-street parking areas.

(6)

Detention and retention ponds.

(7)

Community drain fields.

(8)

Golf course.

(9)

Wetlands.

(10)

Lakes, rivers, or ponds.

(11)

Floodplains.

(12)

Slopes over 12%.

B.

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

(1)

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

(2)

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.

(3)

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.

(4)

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 preserve or enhance the existing views.

(5)

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

(6)

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.

(7)

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.

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 common use 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.

D.

Houses abutting the open space. A minimum of 50 percent of all dwelling units within the development shall abut or overlook the dedicated open space.

E.

Underlying zoning district. The development of land under this chapter shall comply with all requirements of this chapter 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.

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. Flag lots or panhandle lots shall not be permitted.

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. The location and area of building envelopes shall be established to achieve the intent and purpose of the zoning district in which the land is located.

H.

Lot width. Each lot shall have a minimum width equal to no less than 75 percent of the minimum lot width specified for the zoning district in which the land is located, unless otherwise approved by the planning commission.

I.

Maximum number of lots. The clustered portion of the development shall contain not more than the maximum number of lots, as determined from the parallel plan approved by the planning commission, and as reduced to reflect the inclusion of non-dwelling unit structures, if any, as described in subsection J.

J.

Non-dwelling unit structures. Lots containing non-dwelling structures such as a clubhouse and its related amenities 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 chapter and other provisions of the city code 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.

K.

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 by the number of dwelling lots equivalent to the area of the lot containing the non-dwelling structure, rounded up to the nearest whole number. For the purposes of this subsection, the number of equivalent dwelling lots shall be based on the average area of lots containing dwellings in the clustered development.

L.

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 uses (planned or existing).

M.

Pedestrian circulation. Adequate pedestrian circulation shall be provided by the applicant for on-site circulation. Adequate access shall be provided to all open space/recreational spaces from the residential areas. Natural paths or bike paths are encouraged within the development. Paths provided within the development shall be constructed of asphalt, gravel, woodchip, or other similar material as approved by the planning commission.

N.

Sidewalks. The planning commission may require that sidewalks or non-motorized trails be constructed and maintained.

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.

Private streets. If the clustered development is a site condominium, private streets may be permitted in accordance with the Land Division and Development Ordinance. The planning commission may, however, modify the requirements for private streets in a clustered development and in doing so, shall consider the following criteria:

(1)

Number and type of dwelling units served by the private street;

(2)

Traffic generation;

(3)

Existing topography and vegetation;

(4)

Security provisions;

(5)

Interrelationship with the public street network;

(6)

Future installation of public utilities; and

(7)

Likelihood of public dedication of the roadway.

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.

R.

Subdivision, site condominium regulations. After, or in conjunction with, approval of a clustered site development plan pursuant to this chapter, the developer shall comply with the requirements and procedures for subdivisions or site condominiums as applicable.

A.

An approved clustered site development 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 may be approved by the planning director. The planning director shall notify the planning commission of the minor change and state his/her conclusion that the change does not substantially alter the basic design or conditions required for the plan by the planning commission.

The following 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 (10) feet.

(3)

Plantings approved in the landscaping plan may be replaced 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 development plan which are deemed by the planning director to be not material or significant in relation to the entire site and which the planning director determines would not have any significant adverse effect on the development or on adjacent or nearby lands or the public health, safety, and welfare.

C.

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

D.

Should the planning director determine that a requested change in the approved site development plan is not minor, resubmission to the planning commission for an amendment shall be required, and the planning commission shall consider the change in accordance with the same procedures as for an original application.

The planning commission, in its discretion, may require reasonable mandatory performance guarantees deemed satisfactory to the planning commission. Such arrangements shall be conditioned upon faithful compliance with all of the provisions and requirements of the approved clustered site development plan, including any conditions thereto, and construction and placement of all the improvements required thereby.

In its discretion, the planning commission may rebate or refund a proportionate share of the amount specified in a performance bond, letter of credit, or cash deposit, based upon the percent or other portion of improvements completed, as verified by the planning commission.

Each development permitted pursuant to this chapter shall be under substantial construction within one (1) year after the date of approval of the site development plan by the planning commission. If this requirement is not met, the planning commission may, at its discretion, grant an extension not exceeding one (1) year, provided that the applicant submits reasonable evidence to the effect that unforeseen difficulties or special circumstances have been encountered, causing delay in the commencement of the clustered development.

If the clustered development has not been commenced within the above-stated time period, or within any authorized extension thereof, any building permits issued for the development or any part thereof shall be of no further effect. The applicant shall then be required to seek renewed approval from the planning commission under the terms of this chapter in order to exercise the clustering option.