NOTICE IS HEREBY GIVEN, That at its Regular meeting on June 19, 2018, the Charter Township of Independence Board of Trustees approved a second reading and adoption of an ordinance to amend certain provisions of the Independence Charter Township Code.

A true copy of this Ordinance is on file and available for inspection between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday at the Independence Township’s Clerk’s Office, 6483 Waldon Ctr. Dr., Clarkston, MI 48346 and available on the Township’s website at: www.indtwp.com.

STATE OF MICHIGAN

COUNTY OF OAKLAND

THE CHARTER TOWNSHIP OF INDEPENDENCE

ORDINANCE # 2018-18-001

AN ORDINANCE TO AMEND THE INDEPENDENCE CHARTER TOWNSHIP CODE OF ORDINANCES, CHAPTER 18, “ENVIRONMENT,” ARTICLE IV, “WETLANDS AND WATERCOURSES,” DIVISION 2, “PROTECTION,” BY AMENDING SECTIONS 18-103, 18-104, 18-105, 18-108, 18-110, 18-111, 18-112, 18-113, 18-115, 18-118, 18-119 and 18-120 in order to AMEND AND REMOVE certain definitions AND certain activities requiring permits, and TO REVISE AND clarify provisions regarding applications, procedures, reviewS and decisions concerning permits under this division.

THE CHARTER TOWNSHIP OF INDEPENDENCE ORDAINS:

Section 1.  Ordinance Amendment.

Chapter 18, “Environment,” Article IV, “Wetlands and Watercourses,” Division 2, “Protection,” Sections 18-103, 18-104, 18-105, 18-108, 18-110, 18-111, 18-112, 18-113, 18-115, 18-118, 18-119 and 18-120 of the Independence Charter Township Code are hereby amended to read as follows:

Sec. 18-103. Definitions.

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Aquatic vegetation means plants and plant life forms that naturally occur in, at, near or predominantly near water.

Contiguous means any of the following:

(1)  A permanent surface water connection or other direct physical contact with an inland lake or pond, a river or stream;

(2)  A seasonal or intermittent direct surface water connection to an inland lake or pond, a river or stream;

(3)  A wetland is partially or entirely located within 500 feet of the ordinary high-water mark of an inland lake or pond or a river or stream, unless it is determined by the township in accordance with Rule 281.924 of the Administrative Rules adopted by the state department of environmental quality, land and water management division, wetland protection that there is no surface water or groundwater connection to these waters; and

(4)  Two or more areas of wetland separated only by barriers, such as dikes, roads, berms, or other similar features, but with any of the wetland areas contiguous under the criteria described in subsections (1), (2) or (3) of this definition.

Department means the township building, planning and zoning department.

Deposit means to fill, place or dump.

Director means the director of the township building, planning and zoning department.

In-kind mitigation means replacement of unavoidably lost wetland resources with created, restored or preserved wetlands of a similar physical/biological type, with the goal of replacing as fully as possible the functions of the lost wetlands.

Material means soil, sand, gravel, clay, peat, debris and refuse, or any other substance, organic or inorganic.

Mitigation bank means a township site where wetlands have been restored, created, and/or preserved expressly for the purpose of making available compensatory mitigation, in the township’s discretion under township ordinances, for the loss of wetlands at another location. The township mitigation bank shall be maintained for such purposes in perpetuity. The wetlands in a mitigation bank are quantified as mitigation credits that are available for use by the township or others, pursuant to this article, to compensate for unavoidable impacts on wetland resources that are regulated solely by the township.

Mitigation credit means a unit of value based on the wetlands created, restored, or preserved within a mitigation bank that may be purchased from the township pursuant to this article.

Official maps means the official watercourse and/or wetlands map of the township, as amended, or updated from time to time, which maps shall be on file in the office of the director.

Operation means the making of additions or deposits, performing any construction or excavation activity, removing, improving and/or developing land in any manner, or any combination thereof.

Ordinary high-water mark means the line between upland and bottomland which persists through successive changes in water levels, below which the presence and action of the water is so common or recurrent that the character of the land is markedly distinct from the upland and is apparent in the soil itself, the configuration of the surface of the soil and the vegetation. On an inland lake which has a level established by law, it means the high established level. Where water returns to its natural level as a result of the permanent removal or abandonment of a dam, it means the natural ordinary high-water mark.

Out-of-kind mitigation means the replacement of unavoidably lost wetland resources with created, restored, or preserved wetlands that are physically or biologically different than the wetlands that were lost. If permitted, out-of-kind mitigation may result in the replacement of different wetland functions than were lost.

Owner means any person who has dominion over, control of, title to and/or any other proprietary interest in designated wetland areas, or title to an obstruction, natural or otherwise, to wetland properties.

Remove means to dig, dredge, suck, pump, bulldoze, dragline or blast.

Seasonal means any intermittent or temporary operation which occurs annually and is subject to interruption from changes in weather, water level, or time of year, and may involve annual removal and replacement of an operation, obstruction or structure.

Soils:

(1)  Poorly drained soils are those soils from which water is removed so slowly that the soil remains wet for a large part of the time. The water table is commonly at or near the surface during a considerable part of the year. Poorly drained conditions are due to a high-water table, to a slower permeable layer within the soil profile, to seepage, or to some combination of these conditions.

(2)  Very poorly drained soils are those soils from which water is removed from the soil so slowly that the water table remains at or on the surface a greater part of the time. Soils of this drainage class usually occupy larger or depressed sites and are frequently ponded.

Structure means any assembly of materials above or below the surface of the land or water, including, but not limited to, houses, buildings, plants, bulkheads, piers, docks, rafts, landings, dams, sheds or waterway obstructions.

Temporary means a time period as specified in the use permit, or if unspecified, means an uninterruptable time period less than one year in duration.

Upland means the land area adjoining a lake, stream or watercourse, above the ordinary high-water mark, uses for which are essentially nonaquatic.

Watercourse means any waterway or other body of water having well-defined banks, including rivers, streams, creeks, and brooks, whether continually or intermittently flowing, and lakes and ponds, or as otherwise shown on an official watercourse and/or wetland map.

Wetlands means land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support wetland vegetation or aquatic life and is commonly referred to as a bog, swamp or marsh. For purposes of this article, a “wetland” must be two acres, or more, in size, or, regardless of size, contiguous to an inland lake, pond, river, or stream. If the land area is less than two acres in size and not contiguous to an inland lake, pond, river, or stream, it shall nonetheless be considered a “wetland” if it is determined that the protection of the area is essential to the preservation of the natural resources of the state or township from pollution, impairment, or destruction and the owner of the property has been so notified.

Wetland Board means the township’s planning commission, sitting as the wetland board under this article.

Sec. 18-104. Findings.

(a)  It is recognized by the township board that wetland conservation is a matter of township concern inasmuch as a loss of a wetland, and, particularly, in cumulation with other losses of wetlands, will deprive the people of the township, or others, of flood and/or storm control, wildlife habitat, protection of subsurface water resources and provision of valuable watersheds and recharging groundwater supplies, pollution treatment, erosion control and sources of nutrients, and it is further recognized by the township board that rapid growth, the spread of development, and increasing demands upon natural resources, have resulted in the shrinkage of the critically necessary domain of nature, wetlands and watercourses, and have had the effect of encroaching on, despoiling, polluting or eliminating many watercourses and wetlands, and other natural resources, and the public trust therein, and that preservation of the remaining wetlands in an undisturbed and natural condition shall be and is necessary to maintain important physical, aesthetic, recreational and economic assets for existing and future residents of the township and of this state.

(b)  The township board adopts the legislative findings set forth in MCL 324.30302.

Sec. 18-105. Intent and purpose.

It is the purpose and intent of this division, in view of the findings specified in section 18-104, to promote and maintain a harmonious and compatible land use balance within the township and to obviate the nuisance condition which would arise with the indiscriminate development of existing wetlands areas; to provide for the protection, preservation, proper maintenance and use of township wetlands in order to minimize disturbance of and to them; to prevent damage caused by erosion, scarification, sedimentation, turbidity and/or siltation; to provide for the protection of soils capable of providing necessary filtration for the maintenance of aquifer stability; to protect against loss of wildlife, fish or other beneficial aquatic organisms, or vegetation, and also against the destruction of the natural habitat thereof; to minimize the phenomenon of environmental deterioration; to secure safety from the dangers of flood and pollution, to prevent loss of life, property damage and other losses and risks associated with flood conditions; to preserve the location, character and extent of natural drainage courses; and to provide for the enforcement of this article and coordination of the enforcement of appropriate local, county and state ordinances or statutes and corresponding agencies.

Sec. 18-108. Activities requiring a permit.

(a) It shall be unlawful for any person to do or assist in any of the following unless and until a written permit is obtained from the township pursuant to this division:

(1)  Deposit or permit to be deposited any material, including, without limitation, structures, into, within or upon any wetland area;

(2)  Remove or permit to be removed any material from any wetland area;

(3)  Dredge, fill or land balance wetlands;

(4)  Construct, place, enlarge, extend or remove a temporary, seasonal or permanent operation or structure upon wetlands;

(5)  Construct, enlarge, extend or connect any private or public sewage or waste treatment plant discharge to any wetland except in accordance with the latest requirements of and permit by the county, state and/or the United States, to the extent that such entities have jurisdiction;

(6)  Drain, or cause to be drained, any water from a wetland.

(b)  In the event the director identifies an activity in a watercourse that the director believes to require a permit from the Michigan Department of Environmental Quality, or its successor department or agency, under Part 301 of Public Act No. 451 of 1994 (MCL 324.30101 et seq.), the director may issue a written notice to the person or entity undertaking the activity and, if applicable, the owner of the property abutting the portion of the watercourse in which the activity is being undertaken informing such parties of the permit requirement and directing such party or parties to make application for the required permit immediately.  The director shall also send a copy of such notice to the designated local representative of the Michigan Department of Environmental Quality, or its successor department or agency.

Sec. 18-110. Application procedures for permit.

Permits required under this division shall be issued only following the submission of an application to the department as provided in this section, and review in accordance with this division:

(1)  Application for a township wetland permit shall be made on the form supplied by the state department of environmental quality. The failure to supply complete information with a permit application may be reason for denial of a permit.

(2)  Each person applying for a township wetland permit shall make application directly with the township, through the department.

(3)  Upon receipt, the director, or his designee on his behalf, shall forward a copy of each application to the state department of environmental quality.

(4)  The director and, if applicable under this division, the wetland board, with the assistance of the township’s consultants in those cases deemed by the director or wetland board to be appropriate, shall review the application pursuant to this division.

(5)  The application shall be modified, approved or denied within 90 days after receipt, subject to the provision in subsection (6) of this section.

(6)  If an applicant is also required under township ordinances to obtain approval of a site plan or subdivision plat, the applicant shall, at the time of submission of a wetland permit application, elect in writing to have the wetland permit application processed under either of the following alternative provisions:

1. The wetland application shall be reviewed immediately, either prior to or concurrent with the review of the site plan or plat submitted by the applicant, with the understanding that the site plan or plat review may not be completed at the time the decision is rendered on the wetland application, and that the election of this alternative may require a reopening of the wetland application if the township planning commission or township board decision concerning the site plan or plat is inconsistent with the wetland approval; or
2. The wetland application shall be reviewed and acted upon concurrent with the review of the site plan or subdivision plat submitted by the applicant, and the 90-day review period limitation specified in section 30307(6) of Public Act No. 451 of 1994 (MCL 324.30307(6), shall thereby be extended accordingly.

Sec. 18-111. Application review.

(a)  General review procedure. For all proposed projects and/or activities not reviewed pursuant to subsection (b) of this section and in cases where a hearing has been requested pursuant to the provisions of subsection (b) of this section, the following review process shall apply:

(1)  Upon receipt of an application, or upon request for a hearing under subsection (b) of this section, as the case may be, the director shall forward the application to the wetland board after verifying that all required supporting material is available. If it appears to the director that the expertise of the township engineer or other consultant is necessary in connection with the application, for purposes of expediting the review, the director shall be authorized to obtain an escrow deposit of funds from the applicant for consulting fees and retain the township engineer or other wetland consultant for such purpose.

(2)  The director shall set a date for a wetland board hearing on the application, and shall send notice of the time, date and place of the hearing to the owners of property, based upon township records, within 300 feet of the property on which the proposed project or activity is to take place. Such notice shall also be sent to all township board members, and to all persons, subdivision associations and lake associations registered with the township which are contiguous to the property and/or wetland affected. The notice shall include a summary of the proposed project or activity or a copy of the permit application. Notice of the hearing shall also be published in a newspaper of general circulation in the township at least five (5) days before the hearing.

(3)  At the scheduled hearing, the wetland board shall consider the application and all relevant material and information submitted in connection with the application by the applicant, the department, township consultants and any interested party, and the wetland board shall also provide an opportunity for the applicant and interested persons to address the wetland board regarding the application. The hearing may be adjourned from time to time, as deemed necessary by the wetland board, and, if it appears that impairment, pollution and/or destruction of a wetland or other natural resource may result, and that technical expertise is required, the wetland board may require an environmental statement, environmental assessment, or environmental impact study to be provided by the applicant, or may submit the application to the township engineer or other consultant as deemed appropriate for examination and investigation upon payment by the applicant of the monies projected by such engineer or other consultant to be reasonably necessary to make an examination and investigation of the application and provide a report thereon.

(4)  Within a reasonable time following the hearing and completion of its consideration, the wetland board shall make a determination to approve issuance of the permit, approve issuance of the permit with specific conditions, or to deny issuance of the permit. The wetland board’s determination shall be made in light of the standards and criteria set forth in subsection (c) of this section and all of the requirements of this division. Any conditions imposed shall be for the purpose of insuring that the project or activity complies with this division and/or results in minimum impact upon natural resources.

(5)  If issuance of the permit is approved, the director shall issue the permit to the applicant on a form prepared by the director, subject to and as provided under sections 18-112, 18-113 and 18-114.

(6)  If the wetland board denies the permit, the applicant shall be notified of same in writing. The wetland board’s denial of a permit shall be accompanied by a reason for denial that is provided to the applicant.

(b)  Special review procedures. If the project and/or activity is not otherwise reviewable by the township planning commission under any provision of the zoning ordinance (appendix A of this Code) or this Code, the following review process shall apply:

(1)  After verifying that all required supporting material pertaining the application is available, the director shall review the application in light of the standards and criteria set forth in subsection (c) of this section and all of the requirements of this division. If it appears to the director that the expertise of the township engineer or other consultant is necessary in connection with the application, for purposes of expediting the review, the director shall be authorized to obtain an escrow deposit of funds from the applicant for consulting fees and retain the township engineer or other wetland consultant for such purpose.

(2)  If the director preliminarily determines that the project or activity proposed in the application conforms with the standards and criteria of subsection (c) of this section, and with all of the requirements of this division, the director shall send a notice of intent to issue a permit by first class mail to the owners of property within 300 feet of the property on which the proposed project or activity is to take place, based upon the records on file at the township. Such notice shall also be sent to all members of the township board and the wetland board and to all persons, subdivision associations and lake associations registered with the township which are contiguous to the property and/or wetland affected. The notice shall include either a copy of the permit application or a summary of the proposed activity or project, and a specification that it is the intent of the township to issue a permit unless a written request for a hearing before the wetland board is received within 30 days from the date of mailing. The director may also publish a summary of the proposed activity and intent to issue a permit in a newspaper of local circulation, specifying the required date within which a hearing must be requested, which date shall correspond to the end of the 30-day period from the date on which the aforementioned notices were mailed. Any person interested in the activity and/or project may request, in writing, that the application be reviewed pursuant to subsection (a) of this section. Such request shall be forwarded to the wetland board, and the wetland board shall either proceed with the application under subsection (a) of this section, or return the application for completion of the administrative review and determination under this subsection (b). If the director does not receive such a request within the 30-day period or if the wetland board returns the application to the director, the director shall make a written determination to approve issuance of the permit, approve issuance of the permit with specific conditions, or deny issuance of the permit. Any conditions imposed shall be for the purpose of insuring that the project or activity complies with this division and/or results in minimum impact upon natural resources

(3)  If the director approves issuance of the permit, the director shall issue the permit to the applicant on a form prepared by the director, subject to and as provided under sections 18-112, 18-113 and 18-114.

(4)  If the director denies the permit, the applicant shall be notified of same in writing. The denial of a permit shall be accompanied by a written reason for denial.

(c)  Review standards and criteria. In arriving at a determination with respect to the issuance of a permit under this division, the director and/or the wetland board, as applicable, shall take into consideration at least the following standards and criteria:

(1)  A permit shall be issued only if the proposed project or activity is clearly in the public interest, and is otherwise lawful in all respects.

(2)  In determining whether the activity is in the public interest, the benefit which would reasonably be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity, taking into consideration the local, state and national concern for the protection and preservation of natural resources from pollution, impairment and/or destruction. If, as a result of such a balancing, there remains a debatable question whether the proposed project and/or activity is clearly in the public interest, a permit shall not be issued. The following general criteria shall be applied in undertaking this balancing test:

1. The relative extent of the public and private need for the proposed activity;
2. The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity;
3. The extent and permanence of the beneficial or detrimental effects which the proposed activity may have on the public and private use to which the area is suited, including the benefits the wetland provides;
4. The probable impact of the proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed;
5. The probable impact on recognized historic, cultural, scenic, ecological, or recreational values and on the public health or fish or wildlife;
6. The size and quality of the wetland being considered;
7. The amount and quality of remaining wetlands in the area;
8. Proximity to any waterway;
9. Economic value, both public and private, of the proposed land change to the general area; and
10. The necessity for the proposed project.

(3)  A permit shall not be issued unless it is shown that:

1. An unreasonable disruption will not result to aquatic resources;
2. The proposed activity is primarily dependent upon being located in the wetland; and
3. A feasible and prudent alternative does not exist.

(4)  The manner in which the activity is proposed to be undertaken will result in the minimum negative impact upon the wetland and attendant natural resources under all of the circumstances.

Sec. 18-112. Permit issuance and appeal.

(a)  A permit approved by the wetland board after a hearing shall not be effective until ten days following the date of issuance.

(b)  Following approval of a wetland permit application, a wetland permit shall be issued upon the determination that all other requirements of ordinance and law have been met, including site plan, plat or land use approval, as applicable, and including issuance of a permit by the state department of environmental quality, if required under part 303 of Public Act No. 451 of 1994 (MCL 324.30301 et seq.) In cases where a state department of environmental quality permit allows activities not permitted by the wetland approval granted under this division, the restrictions of the approval granted under this division shall govern.

(c)  An interested person who is aggrieved by the determination of the wetland board may request an appeal of the wetland board’s decision to the township board.

(d)  A request for appeal must be filed within ten days following the wetland board’s decision. If an appeal is requested during such ten-day period, the effectiveness of the permit shall be suspended pending the outcome of the appeal.

(e)  The township board shall determine whether to consider the appeal based upon the minutes of the wetland board, or based upon an entirely new hearing. If a new hearing shall be conducted, notice of the time, date and place of the hearing shall be mailed to the owners of property, based upon township records, within 300 feet of the property, and also mailed to all persons, subdivision associations and lake associations registered with the township to receive such notices.

(f)  The procedure for the hearing shall be the same as set forth in section 18-111(a) governing the procedure before the wetland board.

(g)  If the township board determines to consider the appeal based upon the minutes of the wetland board, the applicant, and other interested parties as allowed by the township board, shall be entitled to be heard by way of argument and citation of authorities prior to the wetland board’s determination.

(h)  The township board, based upon its appellate review, may reverse, affirm or modify the determination and/or permit issued by the wetland board.

Sec. 18-113. Permit contents.

The permit issued under this division shall contain at least the following:

(1)  The name and address of the person to whom the permit has been issued;

(2)  The name and address of the owner of the property on which the activity or operation shall occur;

(3)  A statement of all conditions imposed in connection with the issuance of the permit;

(4)  The date by which any construction, removal, deposit or operation must be completed, i.e., the expiration date of the permit;

(5)  The amount of any cash bond or irrevocable letter of credit and the institution issuing such irrevocable letter of credit as determined necessary by the wetland board or director to ensure compliance with the permit as issued;

(6)  An attestation signed by the permit holder stating the following:

“This permit and all conditions stated herein or as part of the approval of this permit are hereby accepted and agreed to by the undersigned, and all operations permitted or approved by this permit shall be conducted in such a manner as will cause the least possible impairment, pollution and/or destruction of natural resources.”

(7)  The legal description of the parcel to which the permit pertains; and

(8)  An indication of any mitigation credits approved for issuance under this division and any conditions imposed in connection with such credits.

Sec. 18-115. Deposit with application filing.

(a)  With the filing of an application, an escrow deposit of funds shall be provided by the applicant for review costs in the amount as currently established or as hereafter adopted by resolution of the township board from time to time.  The deposit under this section shall be in addition to any other escrow or other fund deposits required under this division or other township ordinances.

(b)  If an environmental statement, environmental assessment, or an environmental impact study is required, a further deposit shall be made in an amount determined by the wetland board at the time the wetland board imposes the requirement for such submission, based upon the nature and extent of the study.

(c)  All amounts of deficiency shall be paid, and all amounts of overage shall be returned, prior to or concurrent with final action on the application.

Sec. 18-118. Mitigation.

(a)  Mitigation under this division shall be permissible only in an instance where it is determined that if a permit is not issued there would be no viable use of the property. Mitigation shall not be permissible when it is feasible and prudent to avoid impacts on the wetlands and concurrently make viable use of the property. A finding shall be made that all feasible and prudent efforts have been made to analyze a use of the property without the necessity of the issuance of a permit which would require mitigation.

(b)  If mitigation is permissible, as specified under subsection (a) of this section, the wetland board or the director, as the case may be, may require mitigation as a condition to the issuance of a permit, as contemplated under sections 18-111 through 18-114.

(c)  Mitigation shall be designed to remove any impairment to the wetland benefits, to mitigate the impact of fill material or otherwise improve the water quality. Mitigation may be designed for the improvement of the existing wetland resources or the creation of new wetland resources to offset wetland resources lost as a result of the proposed project.

(d)  As part of the authorization or direction of mitigation, financial assurances may be required in order to ensure that mitigation is accomplished as specified by the permit conditions, and that the mitigation remains successful for a reasonable period of time in the future.

(e)  The mitigation plan shall be prepared by a qualified wetlands consultant retained by the applicant and shall be reviewed by the township’s wetlands consultant utilizing the monies escrowed for such purpose by the applicant.

(f)  If the wetland board or the director, as the case may be, determines that it is practical to replace the wetland resource values which will be unavoidably impacted, the following criteria shall be utilized when reviewing the applicant’s mitigation proposal:

(1)  Mitigation shall be provided on site where practical and beneficial to the wetlands resources;

(2)  If on-site mitigation is not practical and beneficial to the wetland resources, mitigation shall be provided in the immediate vicinity of the permitted activity where practical and beneficial to wetland resources or under section 18-119. When possible, such off-site mitigation means within the same watershed within the township as the location of the proposed project;

(3)  Only when it has been determined by the wetland board or director, as the case may be, that mitigation as specified in subsections (f)(1) and (f)(2) of this section would be inappropriate and impractical may mitigation be considered elsewhere;

(4)  Any proposal shall assure that, upon completion, there will be no net loss to the wetland resources; and

(5)  The proposal shall give consideration to replacement of the predominant functional values lost within the impacted wetland.

Sec. 18-119. Mitigation bank.

(a)  The township has constructed a mitigation bank located in the southwest one-fourth of section 27 and the southeast one-fourth of section 28 of the township in order to promote and in furtherance of the findings, intent and purposes of this division by making available an alternative wetland mitigation option, subject to the regulations of this division. Use of the mitigation bank is not intended to permit the destruction of entire areas of wetlands. Rather, use of the mitigation bank is only intended to offset the physical and biological functions that are lost as a result of wetlands impact that would be otherwise permissible under this division.

(b)  The purchase and use of mitigation credits from the mitigation bank may be permitted in accordance with this section. Copies of all permit applications under this division that involve the purchase and use of mitigation credits shall be forwarded to the township supervisor/superintendent.

(c)  Mitigation by the purchase of mitigation bank credits shall be permissible only in an instance where the director or wetland board, as the case may be, determines, in consultation with the township engineer, planner, and wetlands consultant, that:

(1)  Mitigation credits in the township mitigation bank are available;

(2)  Mitigation is permissible under section 18-118(a);

(3)  Mitigation as specified in section 18-118(f)(1) and (f)(2) is inappropriate, impractical and not essential to fulfilling the intent and purposes of this division;

(4)  The wetland at issue is not regulated by the state department of environmental quality;

(5)  The applicant has taken all feasible and prudent steps to avoid the loss of on-site wetlands resources and has used all practical means to minimize impact to wetlands;

(6)  The mitigation credits will be used for in-kind mitigation, unless it is determined that out-of-kind mitigation provides a greater benefit to the wetland resources within the township; and

(7)  The mitigation credits from the township mitigation bank are not intended and shall not be used to support, enable or facilitate a development or use of property that is of a higher density or intensity as a result of the use of the mitigation credits, when a lower density or less intense use or development of the property is permitted under the township zoning ordinance (appendix A of this Code) without the mitigation.

(d)  If it is determined that mitigation by way of purchasing mitigation credits is permissible under subsection (c) of this section the amount of mitigation credits required in connection with the proposed activity or project shall be determined based upon a mitigation ratio (e.g., if the mitigation ratio is found to be 2:1, then two acres of mitigation credits must be purchased for every one acre of wetlands destroyed as a result of the activity or project, or fractions thereof). The mitigation ratio appropriate to the proposed project or activity shall be determined by the director or wetland board, as the case may be, in consultation with the township engineer and wetlands consultant, upon consideration of the following factors:

(1)  Size of habitat type impacted;

(2)  Predominant vegetation of impacted wetland (e.g., submerged, floating, persistent, emergent, scrub/shrub or forested wetlands, etc.);

(3)  Assessment of the overall functional quality of the impacted wetland;

(4)  Soil analysis;

(5)  Qualitative analysis comparing the quality of the impacted and destroyed wetland areas with the quality of the mitigation bank; and

(6)  The ratio of wetlands mitigated by the purchase of wetland bank credits to wetlands lost shall not be less than 1:1 under any circumstance.

(e)  Prior to the sale of any mitigation credits, the per-credit charge for mitigation credits shall be established by a township board of trustees resolution on the basis of the township’s costs to establish the mitigation bank and its reasonably anticipated costs to perpetually monitor, maintain and preserve the mitigation bank. The per-credit charge may be modified from time to time by resolution of the township board in its discretion. In the township board’s discretion, charges for mitigation credits may be waived for public improvement and township construction projects that are partially or fully funded by the township.

(f)  No permit approved under this article on the basis of the applicant purchasing mitigation credits from the mitigation bank shall be effective or issued until payment of all charges applicable to such mitigation credits has been made in full to the township.

(g)  If a permit is issued that includes the purchase of mitigation credits from the township’s mitigation bank, in addition to any other conditions stated in such permit, it shall be a condition of the sale of such mitigation credits that the credits shall not be used to support, enable or facilitate a development or use of property that is of a higher density or intensity as a result of the use of the mitigation credits, when a lower density or less intense use or development of the property is permitted under the township zoning ordinance (appendix A of this Code) without the mitigation. It shall be a further condition that, in the event the township, in its discretion, determines that such an improper use of the mitigation credits or an attempt to use the mitigation credits in such manner has occurred, the mitigation credits shall revert back to the mitigation bank and the permit shall be void and a nullity. A written agreement may be required by the township, in its discretion, with respect to mitigation under this section.

Sec. 18-120. Administration of mitigation bank.

The mitigation bank shall be managed, monitored and maintained by the township supervisor/superintendent through the department and in consultation with the township engineer and wetlands consultant. The township supervisor/superintendent shall maintain a record of the total number of mitigation credits generated, available and sold within the mitigation bank, and the names and addresses of those who have purchased credits. The supervisor/superintendent shall inform the director and/or wetland board of the amount of available mitigation credits upon receiving an application pursuant to subsection 18-119(b).

Section 2.  Repealer.

All ordinances, parts of ordinances, or sections of the Charter Township of Independence Code of Ordinances in conflict with this Ordinance are repealed only to the extent necessary to give this Ordinance full force and effect.

Section 3.  Severability.

Should any section, subdivision, clause, or phrase of this Ordinance be declared by the courts to be invalid, the validity of the Ordinance as a whole, or in part, shall not be affected other than the part invalidated.

Section 4.  Savings.

All proceedings pending and all rights and liabilities existing, acquired or incurred at the time this Ordinance takes effect, are saved and may be consummated according to the law in force when they were commenced.

Section 5.  Effective Date.

This ordinance shall be effective following publication in the manner prescribed by law.

Section 6.  Enactment.

This Ordinance is declared to have been enacted by the Township Board of Trustees of the Charter Township of Independence at a meeting called and held on June 19, 2018, and ordered to be given publication in the manner prescribed by law.

Ayes:   Pallotta, Brown, Loughrin, Ritchie, Schroeder, Kittle

Nays:  Aliaga

Abstentions:  None

Absent: None

STATE OF MICHIGAN           )

) ss.

COUNTY OF OAKLAND         )

I, the undersigned, the qualified and acting Township Clerk of the Charter Township of Independence, Oakland County, Michigan, do certify that the foregoing is a true and complete copy of the Ordinance adopted by the Board of Trustees of the Charter Township of Independence at a meeting held on June 19, 2018, the original of which is on file in my office.

CHARTER TOWNSHIP OF INDEPENDENCE

By: Barbara A. Pallotta, Clerk

Introduced: May 15, 2018

Published:  May 30, 2018

Adopted:    June 19, 2018

Published:  June 27, 2018

Effective:             June 28, 2018