The provisions of this section apply to the Dune Overlay Zone. In keeping with the findings of the Michigan Legislature and the authority granted to local government in part 353 of the Natural Resources and Environmental Protection Act (MCL 324.35301 et seq.), the Charter Township of Pere Marquette hereby declares that:

(a)

The critical dune areas of Pere Marquette Charter Township are a unique, irreplaceable, and fragile resource that provides significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural, and ecological benefits to the people of this community, to the state, to the people from other states and countries who visit this resource.

(b)

The benefits derived from alteration, industrial, residential, commercial, agricultural, silvicultural, 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.

(c)

The following regulations embodied in this Dune Overlay Zone are adopted as the minimum measures necessary to achieve these ends.

(Ord. No. 144, 8-13-2019)

The following terms used in this Dune Overlay Zone shall have the meaning defined below:

(a)

Accessibility measures means a circulation path and at least one entrance on a circulation path complying with American National Standards Institute chapter 4 standards for accessible routes, from a road or easement serving the property, and at the option of the applicant, from a sidewalk, a driveway, or a garage. Accessibility measures do not include driveways.

(b)

Buildable area means an area of a lot or parcel which is of sufficient size and character so as to support a principal structure and a reasonable use of the property without being in violation of any local, state or federal environmental or other regulations adopted to protect the public health, safety or general welfare. Buildable area shall not include any wetland, 100-year floodplain, high risk erosion area, drainage way, lake or similar natural feature which poses an impediment or hazard to safe construction or use of property without sufficient upland property to meet ordinance requirements. Contour changes to create a buildable area are permissible only if not contrary to this Ordinance, or any other state or federal statute.

(c)

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.

(d)

Crest means the line at which the first lakeward-facing slope of a critical dune ridge breaks to a slope of less than 18 percent for a distance of at least 20 feet, if the areal extent where this break occurs is greater than one-tenth acre in size.

(e)

Critical dune area means that geographic area designated in the "Atlas of Critical Dune Areas" dated February 1989, that was prepared by the department and any other such locally designated sand dune areas included on the Pere Marquette Charter Township Zoning Maps.

(f)

Department means the Michigan Department of Environment, Great Lakes and Energy (EGLE).

(g)

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.

(h)

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.

(i)

Person means an individual, partnership, firm, corporation, association, local unit of government, or other political subdivision of the state, or a state or state agency.

(j)

Restabilization means restoration of the natural contours of a critical dune to the extent practicable, and 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.

(k)

Sand dune area means that area designated by the department which includes those geomorphic features composed primarily of sand, whether windblown or of other origin and which lies within two miles of the ordinary high-water mark on a Great Lake as defined in section 32502 of the Natural Resources and Environmental Protection Act (MCL 324.32502) and includes critical dune areas.

(l)

Sand dune mining means the removal of sand from sand dune areas for commercial or industrial purposes, or both. The removal of sand from sand dune areas in volumes of less than 3,000 tons is not sand dune mining if the removal is a one-time occurrence and the reason the sand is removed is not for the direct use for an industrial or commercial purpose. However, the removal of any volume of sand that is not sand dune mining within a critical dune area as defined in part 353 of the Natural Resources and Environmental Protection Act (MCL 324.35301 et seq.), is subject to the critical dune protection provisions of part 353. The department as defined herein may authorize in writing the removal of more than 3,000 tons of sand without a sand dune mining permit issued pursuant to section 63704 for a purpose related to protecting an occupied dwelling or other structure from property damage related to the migration of sand or the instability of sand. This removal may be for more than one occurrence, but a written authorization from the department is required for each removal.

(m)

Special use project means any of the following:

(1)

A proposed use in a critical dune area for an industrial or commercial purpose regardless of the size of the site.

(2)

A multifamily use of more than three acres.

(3)

A multifamily use of three acres or less if the density of use is greater than four individual residences per acre.

(4)

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.

(n)

Use means a developmental, silvicultural, 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, but does not include sand dune mining.

(Ord. No. 144, 8-13-2019)

(a)

The provisions of this Dune Overlay Zone apply to all lands so depicted on the zoning maps which are a part of this Ordinance. These lands include the entire critical dune area as designated by the Michigan Department of Environment, Great Lakes and Energy pursuant to part 353 of the Natural Resources and Environmental Protection Act (MCL 324.35301 et seq.), and to such other lands as locally designated and depicted thereon. Locally designated sand dunes together with dunes designated under such part 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 this overlay zone, even if not so depicted on the Pere Marquette Charter Township Zoning Maps.

(b)

This overlay zone establishes regulations which apply in addition to those of the underlying district. Lot size, density, and front and side setbacks shall be as established in the underlying district, except that lots created after the effective date of this section shall be at least 250 feet in width and shall have a ratio of lot width to lot depth of not less than 1:5. Where the provisions of this zone conflict with those of the underlying district, the provisions of the Dune Overlay Zone shall supersede.

(Ord. No. 144, 8-13-2019)

After the effective date of this section, June 1, 1994:

(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 lot size shall be created, split or otherwise permitted to be used without sufficient width, or depth or buildable area to accommodate a principal structure, as established by the minimum standards of this Ordinance.

(Ord. No. 144, 8-13-2019)

(a)

All applications for permits for the use of a critical dune area shall include in writing a showing or evidence:

(1)

The county enforcing agency designated pursuant to part 91 of the Natural Resources and Environmental Protection Act (MCL 324.9101 et seq.) finds that the project is in compliance with such part and any applicable soil erosion and sedimentation control ordinance that is in effect in Pere Marquette Charter Township.

(2)

A proposed sewage treatment or disposal system on the site has been approved by the county health department or the department.

(3)

Assurances 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 may include a program 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 site than were removed by the proposed use.

(4)

Except as otherwise provided in subsection (a)(5), a site plan that contains data required by this section and subsection (a)(7) of this section concerning the physical development of the site and extent of disruption of the site by the proposed development. The planning commission may consult with the soil conservation district in determining the required data.

(5)

An environmental assessment that comports with subsection (b) of this section for a special use project. An environmental impact statement containing the information in subsection (c) of this section may be required by the planning commission if the additional information is considered necessary or helpful in reaching a decision on a permit application for a special use project.

(6)

The planning commission may require that the applicant supply contour maps of the site with five-foot intervals at or near any proposed structure or roadway or the commission may consult with local soil conservation district regarding the degree of slope.

(7)

The payment of any required fees for processing and/or professional review of the submitted site plan.

(8)

The decision of Pere Marquette Charter Township to grant a permit under this Section 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.

(9)

If a permit for a proposed use within a critical dune area is denied, the landowner may request a revaluation of the affected property for assessment purposes to determine its fair market value under the restriction.

(b)

When an environmental assessment is required, it shall include the following information concerning the site of the proposed use:

(1)

The name and address of the applicant.

(2)

A description of the applicant's proprietary interest in the site.

(3)

The name, address, and professional qualifications of the person preparing the environmental assessment and his or 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.

(4)

The description and purpose of the proposed use.

(5)

The location of existing utilities and drainage ways.

(6)

The general location and approximate dimensions of proposed structures.

(7)

Major proposed change of land forms such as new lakes, terracing, or excavating.

(8)

Sketches showing the scale, character, and relationship of structures, streets, or driveways, and open space.

(9)

Approximate location and type of proposed drainage, water, and sewage facilities.

(10)

Legal description of property.

(11)

A physical description of the site, including its dominant characteristics, its vegetative character, its present use, and other relevant information.

(12)

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.

(13)

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.

(c)

When an environmental impact statement is required, it shall include all of the following:

(1)

The name and address of the applicant.

(2)

A description of the applicant's proprietary interest in the site of the proposed use.

(3)

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.

(4)

The description and purpose of the proposed use.

(5)

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.

(6)

The location of the existing utilities and drainage ways.

(7)

The location and notation of public streets, parks, and railroad and utility rights-of-way within or adjacent to the proposed use.

(8)

The general location and dimensions of proposed streets, driveways, sidewalks, pedestrian ways, trails, off-street parking, and loading areas.

(9)

The general location and approximate dimensions of proposed structures.

(10)

Major proposed change of land forms such as new lakes, terracing, or excavating.

(11)

Approximate existing and proposed contours and drainage patterns, showing at least five-foot contour intervals.

(12

Sketches showing the scale, character, and relationship of structures, streets or driveways, and open space.

(13)

Approximate location and type of proposed drainage, water and sewage treatment and disposal facilities.

(14)

A legal description of the property.

(15)

An aerial photo and contour map showing the development site in relation to the surrounding area.

(16)

A description of the physical site, including its dominant characteristics, its vegetative character, its present use, and other relevant information.

(17)

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 "Unified 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.

(18)

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.

(19)

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.

(20)

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.

(21)

At a minimum, plans for compliance with all of the following standards shall be required for construction and post-construction periods:

i.

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.

ii.

The design shall include trash collection devices when handling street and parking drainage to contain solid waste and trash.

iii.

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.

iv.

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.

(d)

At the discretion of a prospective applicant, a request for preliminary review of a proposed use in a critical dune area may be filed with the zoning administrator. Only the data requirements of subsection (a) of this section for a site plan and the required fee must be submitted along with a completed request form. Following a meeting with the developer and the planning commission to review the preliminary site plan, the planning commission shall inform the prospective applicant of the changes to the site plan and any additional information that is needed in order to meet the ordinance requirements. Thereafter, the prospective applicant may proceed with a formal application that meets all the requirements of subsection (a) of this section and have said application processed in the standard fashion.

(e)

The applicant shall stake the location of all proposed structures and uses prior to a site inspection to check the measurements on a proposed site plan.

(Ord. No. 144, 8-13-2019)

(a)

The following uses are not permitted in a critical dune area:

(1)

The disposal of sewage on-site unless the standards of applicable sanitary codes are met or exceeded.

(2)

A use that does not comply with the minimum setback requirements required by rules that are promulgated under part 323 of the Natural Resources and Environmental Protection Act (MCL 324.32301 et seq.).

(3)

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 that those that are lawfully in existence at a site as of July 5, 1989, may be continued, completed, restored, or substituted upon approval of the director of the Department of Natural Resources.

(4)

Production facilities regulated pursuant to the part 625 of the Natural Resources and Environmental Protection Act (MCL 324.62501 et seq.), and part 615 of the Natural Resources and Environmental Protection Act (MCL 324.61501 et seq.); except that those that are lawfully in existence at a site as of July 5, 1989, may be continued, completed, restored, or substituted upon approval of the director of the Department of Natural Resources.

(5)

Construction of a dwelling or other permanent building shall not be authorized on the first lakeward-facing slope of a critical dune area or foredune except on a lot of record that was recorded prior to July 5, 1989 that does not have sufficient buildable area landward of the crest to construct the dwelling or other permanent building as proposed. The proposed construction, to the greatest extent possible, shall be placed in the location that has the least impact on the critical dune area.

(b)

Unless a variance is granted pursuant to section 109-20.13 of this chapter, the following uses are not permitted in a critical dune area:

(1)

A structure and access to a structure on a slope within a critical dune area that is 18 to 25 percent to less than 33⅓ percent unless the structure and access to the structure is in accordance with plans prepared for the site by a registered professional architect or a licensed professional engineer and the plans provide for the disposal of stormwaters without serious soil erosion and without sedimentation of any stream or other body of water. Prior to approval of the plan, the planning commission shall consult with the local soil conservation district and the applicant.

(2)

A use on a slope within a critical dune area that is greater than 33⅓ percent.

(3)

A use involving a contour change that is likely to increase erosion or decrease stability.

(4)

Silvicultural practices, as described in the "Voluntary Forest Management Guidelines for Michigan," prepared by the Society of American Foresters as revised in 2010, that are likely to increase erosion or decrease stability.

(5)

A use that involves a vegetation removal that is likely to increase erosion or decrease stability.

(6)

A use that 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:

i.

The diversity of the critical dune areas within Pere Marquette Charter Township.

ii.

The quality of the critical dune areas within Pere Marquette Charter Township.

iii.

The functions of the critical dune areas within Pere Marquette Charter Township.

(7)

A use that is a structure shall be constructed behind the crest of the first landward ridge of a critical dune that is not a foredune. However, if construction occurs within 100 feet measured landward from the crest of the first landward ridge that is not a foredune, the applicant shall demonstrate that the proposed use meets all of the following requirements:

i.

The structure and access to the structure shall be in accordance with a site plan prepared for the site by a registered professional architect or a licensed professional engineer and the site plan shall provide for the disposal of stormwaters without serious soil erosion and without sedimentation of any stream or other body of water.

ii.

The use will not destabilize the critical dune area.

iii

Contour changes and vegetative removal are limited to that essential to siting the structure.

iv.

Access to the structure is from the landward side of the dune.

v.

The dune is re-stabilized with indigenous vegetation.

vi.

Construction techniques and methods are employed that mitigate the impact on the dune.

vii.

The crest of the dune is not reduced in elevation.

(Ord. No. 144, 8-13-2019; Ord. No. 145, § 2, 2-25-2020)

(a)

Reviewing a site plan submitted along with all the application information required in section 109-20.05 of this article, the planning commission shall:

(1)

Ensure that the requirements of the zoning ordinance have been met and the plan is consistent with existing laws.

(2)

Determine whether the advice or assistance of the soil conservation district will be helpful in reviewing a site plan, and if so, to so seek it.

(3)

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.

(b)

An adequate performance guarantee in the form of a surety bond may be collected to ensure that any earth change or construction activities carried out in violation of approved permits or an approved site plan can be corrected to the maximum extent. Said guarantee shall be refunded when the work for which it was collected has been satisfactorily completed.

(Ord. No. 144, 8-13-2019)

(a)

Any lot or parcel which in whole or part, falls within the Dune Overlay Zone shall not be used except upon receipt of a zoning permit from the zoning administrator. No zoning permit shall be issued for use of lands within this zone until a site plan meeting the requirements of this section and those of Article 23 have been met. 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.

(b)

No grading or clearing of a site shall be done prior to issuance of a zoning permit as required in this Ordinance.

(c)

Additionally, the following requirements shall be met:

(1)

Each individual lot of a subdivision shall require a separate zoning permit as required in this section unless the project is constructed by a single developer under a PUD approval; then one permit for each phase of construction may be issued.

(2)

Filling and grading shall be permitted only according to an approved site plan and approved soil erosion and sedimentation control permit. Sand and bluff stabilization shall be required during all phases of construction and post-construction as specified by standards set forth in part 91 of the Natural Resources and Environmental Protection Act (MCL 324.9101 et seq.) and rules adopted thereunder. Such a revegetation program shall be designed to return open sand areas, both pre-existing and newly created, to a stable condition, to be initiated as soon as possible following construction and include the measures to be taken for the maintenance of revegetated areas for at least two years after the time of planting. No fill shall be placed in an established floodplain or wetland. No fill shall cause surface water to collect or to run off onto adjoining lands contrary to existing natural drainage.

(3)

No soil, sand, gravel or other materials shall be permitted to be removed from lands within this zone except as may be authorized by a permit granted under part 353 of the Natural Resources and Environmental Protection Act (MCL 324.35301 et seq.); or as may be incidental to the establishment of a permitted use approved by a site plan under the terms of this article.

(4)

All shore protection devices shall conform with state and federal permit requirements.

(5)

Clustering of dwelling units is strongly encouraged provided it is done so as to minimize the impacts of uses on the dune. The requirements of Article 21 may be followed for any use in the Dune Overlay Zone, however, all setback and other requirements of this article still apply.

(Ord. No. 144, 8-13-2019)

Notwithstanding subsection 109-20.06(b) or any other provisions of this Ordinance, the construction, improvement, and maintenance of a driveway shall be permitted for any dwelling or other permanent building permitted in a critical dune area, including a dwelling or other permanent building that are lawful nonconforming uses subject to 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 section. Additional driveways, if any, shall meet the applicable requirements of 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 one-foot vertical rise in a four-foot horizontal plane, but not steeper than a one-foot rise in a three-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:

(1)

Stormwater drainage that provides for disposal of stormwater without serious erosion;

(2)

Methods for controlling erosion from wind and water; and

(3)

Re-stabilization by design elements including vegetation, cut-and-fill, bridges, traverses, and other such elements as are required in the judgment of the architect or engineer to meet these requirements.

(c)

Driveways on slopes steeper than one-foot vertical rise in a three-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:

(1)

Stormwater drainage that provides for disposal of stormwater without serious erosion.

(2)

Methods for controlling erosion from wind and water.

(3)

Re-stabilization 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 re-stabilized 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.

(Ord. No. 144, 8-13-2019)

Notwithstanding subsection 109-20.06(b), or any other provisions of this Ordinance, the construction, improvement, and maintenance of accessibility measures shall be permitted for any dwelling or other permanent building permitted in a critical dune area, including a dwelling or other permanent building that are lawful nonconforming uses subject to the following:

(a)

Accessibility measures on slopes steeper than one-foot vertical rise in a four-foot horizontal plane, but not steeper than a one-foot rise in a three-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:

(1)

Stormwater drainage that provides for disposal of stormwater without serious erosion;

(2)

Methods for controlling erosion from wind and water; and

(3)

Re-stabilization by design elements including vegetation, cut-and-fill, bridges, traverses, and other such elements as are required in the judgment of the architect or engineer to meet these requirements.

(b)

Accessibility measures on slopes steeper than one-foot vertical rise in a three-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:

(1)

Stormwater drainage that provides for disposal of stormwater without serious erosion.

(2)

Methods for controlling erosion from wind and water.

(3)

Re-stabilization 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 accessibility measures are not likely to increase erosion or decrease stability.

(Ord. No. 144, 8-13-2019)

(a)

A use needed to obtain or maintain a permit or license that is required by law to continue operating an electrical generating facility that is in existence on July 5,1989 shall not be prohibited under this Ordinance.

(b)

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 zoning permit is exempt from this Ordinance if the maintenance, repair, or replacement is completed in compliance with all of the following:

(1)

Vehicles shall not be driven on slopes greater than one-foot vertical rise in a three-foot horizontal plane.

(2)

All disturbed areas shall be immediately stabilized and revegetated with native vegetation following completion of work to prevent erosion.

(3)

Any removal of wood vegetation shall be done in a manner to assure that any adverse effect on the dune will be minimized and will not significantly alter the physical characteristics or stability of the dune.

(4)

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.

(5)

In the case of repair of underground utility wires, the repair shall be limited to minimal excavation necessary to replace the wires by plowing, small trench excavation, or directional boring. Replacement of wires on slopes steeper than one-foot vertical rise in a four-foot horizontal plane shall be limited to installation by plowing or directional boring only.

(6)

In the case 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 one-foot vertical rise in a four-foot horizontal plane or less.

(Ord. No. 144, 8-13-2019)

(a)

Any proposed conditional use project shall be reviewed and a recommendation for approval, approval with conditions or denial made by the planning commission pursuant to the conditional land use procedures of Article 24 of this Ordinance.

(b)

Prior to issuing a permit allowing a conditional 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 Michigan Department of Environment, Great Lakes and Energy, Water Resources Division. The department shall have 30 days to review the site plan and may affirm, modify, or reverse the proposed decision of the planning commission.

(Ord. No. 144, 8-13-2019)

(a)

The lawful use of land or a structure, as existing and lawful within a critical dune area at 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 31.

(b)

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 the structure does not exceed in size or scope that which was destroyed and does not vary from its prior use.

(Ord. No. 144, 8-13-2019)

The Board of Appeals may grant a variance from the requirements of this overlay zone if a practical difficulty will occur to the owner of the property if the variance is not granted. The procedural requirements of Article 32 should be adhered to. A variance shall be subject to the following limitations:

(a)

A variance shall not be granted from a setback requirement of this article unless the property for which the variance is requested is one of the following:

(1)

A nonconforming lot of record that is recorded prior to July 5, 1989, and that becomes nonconforming due to the operation of part 353 of the Natural Resources and Environmental Protection Act (MCL 324.35301 et seq.) or this zoning ordinance.

(2)

A lot legally created after July 5, 1989, that later becomes nonconforming due to natural shoreline erosion.

(3)

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.

(Ord. No. 144, 8-13-2019)

In addition to the penalty provisions of this Ordinance, the provisions of section 35310 of the Natural Resources and Environmental Protection Act (MCL 324.35310) shall apply in the event of any violation. Pursuant to subsection (4) of said section, 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 $5,000.00 for each day of violation, or order a violator to pay the full cost of re-stabilization of a critical dune area or other natural resource that is damaged or destroyed as a result of a violation, or both.

(Ord. No. 144, 8-13-2019)

In those cases where the applicant seeks to add to an existing structure or erect a structure as an accessory use to a principal use (structure) already on an affected lot as described herein, inclusive, the zoning administrator may approve a site plan and issue such permits as are required, provided, that the applicant otherwise fully complies with all of the provisions of this Ordinance and all other applicable ordinances of the township.

(Ord. No. 144, 8-13-2019)

Should any Section or provision of this Article 20 be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of this Section as a whole, or any part thereof.

(Ord. No. 144, 8-13-2019)