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Schindler's
Land Use Page
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Schindler's |
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| Land Use Questions and Answers, Zoning Open Space |
| Have a question on land use, planning, and zoning? Please email it to: schindl9@msu.edu . Please tell me what county you are from. |
| A large part of Extension's service is to respond to email questions on land use, planning, and zoning. This page contains questions which are among the more common ones received. The questions and answers here are compiled from those I have received/responded to, and those I have participated in discussion with on the Michigan Society of Planning discussion board. | The materials here, are written for the specifics of planning and land use law in Michigan. | Please send your comments and suggestions to me, to make these pages a better service for you. Send to schindl9@msu.edu . |
| Topic | Question | Answer |
| Open Space Sample Zoning | Do your have an example of a cluster zoning ordinance?
I couldn't seem to locate it on the MSU site. (August 27, 2002) |
Try downloading this
PDF file
It is a sample, not necessarily the best, nor a "model." See
this web page
for links to other samples. ---Kurt H. Schindler |
| Open Space Administration | Of those that are complying, how are they doing it?
As a use by right, special use or rezoning? (August 20, 2002) |
The open space option has
to be on "equal footing" with the conventional zoning. So, some would
say, unless the conventional process is "special use" or "requires amendment",
the only way to comply is as a use by right. I'm seeing it mostly as a use by right, and PUD (special use). Mainly because the MTA and MSUE sample ordinances are written that way. It might help to think of the open space provisions of a zoning ordinance working in concert with the Land Division Act. Remember, the Land Division Act offers a bonus (two more possible divisions) if one agrees to retain one parcel that is 60% or more of the parent parcel as undeveloped. Also the 60% is not counted as one of the splits. So if one wants to take advantage of this aspect of the Land Division Act, one submits the proposed division of the property for review to the local government. One of the things the local government does is review to make sure the new parcels comply with local zoning. With open space provisions in the zoning, there is a higher likelihood such a land division proposal would comply with what is allowed in local zoning: A cluster design which requires at least 50% (township and county) be left as open space (proposing 60% as open space if one wants to gain the two bonus divisions under the Land Division Act). Under the Land Division Act, if there is no zoning in the community, the "traditional development" and the cluster development with two bonus divisions are essentially on equal footing, with the same procedure followed to accomplish both. There is some logic to building a zoning ordinance that does the same thing, to accomplish the goal of local zoning and the Land Division Act working well together. ---Kurt H. Schindler |
| Open Space; Which Census is used. | Another
item that this other Planning Commission member said was that we will not
have to worry about the Act until at least 2010 because that is the next
census. Does anyone know of a requirement that says we do not have
to do anything until after the next census? Assuming we exceed the
required population by then. What do we do if we exceed the required population prior to the next census? |
It is possible that at a
future census, the population could go up to, or above, 1,800 at which
time the requirements would be met and adoption of Open Space provisions
for a zoning ordinance would have to be adopted. The act requires the population count used is the federal decennial census or a special census, which ever is the most recent. "Special Census" refers to one that is done pursuant to P.A. 140 of 1971, as amended, being the Glenn Steil State Revenue Sharing Act, M.C.L. 141.907 et. seq. At this time the most recent census is the 2000 Census, so that is the one used for now. The issue does not need to be looked at again until data from the next decennial census or special census is available. ----Kurt H. Schindler |
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Open Space; Adopt Open Space provisions even if not meeting requirements |
I recently went
to a seminar regarding the Open Space Preservation Act. After listening
to all the information, it was my impression that even if our township does
not meet the requirements for having to create an Article or Ordinance for
Open Space Preservation, we SHOULD still have one in place to prevent a developer
from doing what the township does not want them to do. For example, we do not meet the population requirement of the Act so we are not required to create an Article/Ordinance. However, my impression from the seminar is, that in order to avoid a developer doing whatever they want to do our township should create an Article or separate Ordinance pertaining to Open Space Preservation. Another member of the Planning Commission went to the seminar and is under the impression that we should do nothing because the Act was created for developers and that by implementing our own Ordinance we would only be hurting ourselves. I referred all the Planning Commission members to the MTA web site to gather information on their own. (November 26, 2002) |
You might also
want to visit the
MSUE Land Use web site
on this topic for more information on the open space zoning act amendments.
Basically, if your municipality does not meet the requirements (e.g., has an adopted zoning ordinance, population of 1,800 or more, has land that is not developed that is zoned for residential development equivalent to 2 dwelling units per acre or more (or 3 units per acre or more if in an area with public sewer)) the statute does not require the municipality to do anything. If you do meet the requirements, then adopting some form of open space zoning is required, and should be done by December 15, 2002. If you do not meet the requirement, you do not have to, but the municipality could still choose to adopt open space zoning if the community wanted to. Regardless if the open space provisions are added (by amendment) to your municipality's zoning ordinance or not; a developer/land owner/etc. will have to comply with whatever your zoning ordinance requires at the time they make application --not "whatever they want." When a municipality does not meet the requirements (and thus, does not have to adopt the open space provisions) there is not a "right" or "wrong" answer as to if a community should adopt open space provisions as part of their zoning or not. It is a choice. That really becomes a point of discussion and debate for the community, to decide what it wants future development to look like, or what various options for future development a community wants to provide landowners and developers. Different communities will come to different answers to this issue which will be "correct" for their community. There are pros and cons to the open space technique, and it may even be desired for one zoning district, and not for others. ---Kurt H. Schindler |
| Open Space/Cluster in Agriculture Districts | Pursuant to the Open Space Act (Clustering), we are
finding a difference of opinion among planners and attorneys regarding the
application of clustering for residential developments in Agricultural Districts.
For example, today I talked to a highly experienced land use attorney.
It is his opinion a community does not have to permit clustering in an Agriculture
District. Have you had any feedback on this issue?.
(August 21, 2002) |
Is this an issue where attorneys
are on one side of the fence and planners on the other side of the fence;
or a mix of planners an attorneys on one side and a mix of planners and
attorneys on the other? It is helpful to know if it is a disagreement between professions (often easier to solve/reach consensus) or not. Anyway, no I have not heard of the disagreement yet, but for what it is worth here is my take on the issue: The Michigan Zoning Enabling Act reads "....local unit of government shall provide in its zoning ordinance that land zoned for residential development may be developed ...." using open space option if (a) zoning density is .... "2 or fewer dwelling units per acre" .... (M.C.L. 125.3506(1)) It does not say "land zoned residential" (as in the name of the zoning district). It says "land zoned for residential development" (among, presumably other types of development. In other words, if "residential" is a possible use in the district, and density is "2 or fewer dwelling units per acre" then the open space option must be included within the zoning ordinance for that district (if a qualifying community, not excepted, etc.) Also, agricultural preservation is one of the stated goals/purposes of the legislation, and certainly the preserved open space could be operating farmland. ---Kurt H. Schindler I raised it as an "unresolved" issue at the MSU Extension training workshops I did. I come down in agreement with your assessment; i.e., agriculture districts that allow residential development at that density would not seem to be immune from cluster development under the new law. ---Gary Taylor I think the attorney has a valid point, if the agriculture district is written correctly. There are several dozen communities in Michigan (that I am aware of) which have near exclusive use zoning--such as quarter/quarter zoning. Depending on how the language in the district is written, some of them are legitimately agricultural districts in which residences are essentially accessory to agricultural use, rather than residences as a traditional principal use. In this case, the zone is truly an agricultural zone, not a residential zone. In contrast, where the so-called agricultural zone is essentially a holding zone for large lot residential use as the principal and preferred use, despite the purpose and title of the agriculture district, then it would appear that the open space clustering amendments do apply in this type of agricultural zone (the most common type in Michigan). Shiawasee County adopted amendments to its zoning ordinance (August 2002) to clarify that their agriculture A-1 zone is agricultural and they do not allow clustering. At the same time they added clustering as an option in their A-1 1/2 zone and modified the clustering option in the A-2 zone to conform to the new open space zoning amendments. Dennis Dunnigan, county planner, authored these changes if you want to talk to him. While they wouldn't serve well as model ordinance language, I think the distinction described above is clear. While I agree there is some risk in this approach, I feel it is less than the risk associated with making clustering a special use in the agriculture zone. I think a community can easily require site plan review for an open space cluster, but requiring special land use approval is probably too discretionary for the statutory language as written. That having been said, a lot of communities are writing special use permit approaches and the MTA material on the clustering amendments back in January said it was OK to do so. Several municipal attorneys I have talked to said they do not think special land uses are OK with the statutory language as written. I agree there is a significant legal risk with that approach and have not advocated using special uses for the new open space option with the communities we have talked to. ---Mark Wyckoff |
| Schindler's Land Use Page: Land Use Page | Education catalog | Schedule of programs| Pamphlets |for people who are not members of local boards | questions and answers | land use links | Old Stuff | Indicia, disclaimer, etc. |  |
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| 2001 Planning & Zoning Amendments | 2004 Land Use Legislation | 2006 Michigan Zoning Enabling Act | 2008 Michigan Planning Enabling Act |Kurt Schindler | |||||||||
| Kurt H. Schindler, Regional Land Use Educator, MSU Extension, Wexford County; 401 N. Lake Street, Cadillac, Michigan 49601 | (231)779-9480 |schindl9@msu.edu | fax(231)779-9105 | Map to office | |||||||||
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