New Bill Aims to Change Housing Development Regulations in Critical Dune Areas.

This article originally appeared in the July 9, 2012 edition of MiBiz.

By Kyle Shutz

A bill making its way through the state legislature would put economic benefits on the same plane as environmental protection when evaluating developments in the state’s critical dune areas.

If passed, Senate Bill 1130 would spell changes for how realtors, homebuilders and lakefront property owners could develop their properties in areas the Michigan Department of Environmental quality designates as critical dunes. But environmental and other groups say the legislation puts one of Michigan’s unique features at risk.

The bill passed the Senate 26-12 and was reviewed by the House Natural Resources, Tourism and Outdoor Recreation Committee, but Gov. Rick Snyder’s administration has asked the Legislature to hold the bill for the summer in an attempt to build more agreement over specific areas of the proposal.

The DEQ describes these critical dune areas as “Michigan’s most unique and fragile sand dunes” and protects them from earth moving, vegetation removal and construction activities with a permit system. These critical dune areas make up about 70,000 of the 250,000 acres of dunes in Michigan, around 40 percent of which are privately owned.

The bill makes dozens of amendments to sections of the 1994 Michigan Natural Resources and Environmental Protection Act, including changing the intent of the previous critical dune legislation from “protection of the environment and the ecology of the critical dune areas for the benefit of the present and future generations” to “balance the benefits of protecting… the state’s critical dunes with the benefits of economic development and multiple human uses of the critical dunes.”

Among other additions and edits that the bill makes, it allows for the construction of driveways and parking areas, takes away the ability to create additional restrictions from local units of government, increases the requirements for requesting a public hearing, and eliminates the need for applicants to submit an environmental site assessment or environmental impact statement as part of their application.

Michigan’s homebuilding and real estate industries, which have criticized the current critical dunes legislation as unreasonably restrictive, support the new bill.

In written testimony presented to the House Natural Resources, Tourism and Outdoor recreation Committee on June 12th, Dan Coffey of the Michigan Association of Realtors said the new bill addresses unclear and subjective restrictions on development in critical dune areas, balances protection of the dunes with private uses, and removes the responsibility of takings cases from the DEQ, which are instances where private structures are seized because they fail to meet development requirements.

Gongwer, a state legislature new service, reported that builders and real estate Agents brought additional issues before the House Natural Resources, Tourism and Outdoor Recreation Committee, citing homes that can only be accessed by long, steep staircases; homes without driveways; and homes that need to be reconstructed due to their position on steep dunes.

Lee Schwartz, Executive Vice President Government Relations at the Michigan Association of Home Builders,  believes the legislative changes would not damage the dunes, but simply allow for responsible development.

In a phone interview, Schwartz stated that “bringing a balance back between protecting our resources and development, SB 1130 will free up millions of dollars of property development along the coast line while continuing to protect the values that make the dunes so important to Michigan.”

Gongwer also reported that at the House committee meeting, Maggie Cox, legislative liaison for the DEQ, testified that the DEQ largely agrees that the current legislation is long overdue for amendments, specifically citing restrictions that prohibit homes from being on the first lakeward slope of critical dune areas; a single takings case tied to these restrictions has already cost the DEQ $1.8 million and is ongoing.

“We’ve identified 55 parcels in Allegan County alone that are lakeward of first crest that could subject the DEQ to takings,” Cox said, noting that more of these takings cases will be well outside of department’s budget.

Despite agreeing that the current permitting process is flawed, Cox added that the DEQ feels this bill goes too far by requiring the DEQ to show that a project should not be permitted, which is different from all other permitting processes where the applicant is required to show what impact the project would have.

A coalition of environmental and citizens groups joined the DEQ in taking issue with the bill.  The Michigan Environmental Council, Michigan Conservation Districts, Preserve the Dunes, Alliance for the Great Lakes and West Michigan Environmental Action Council submitted testimony opposing the bill to the House committee studying the bill. Other groups joining in opposition include the Michigan League of Conservation Voters and the Michigan Townships Association.

Those opposed to the bill take issue with easing the permitting process for developments in fragile dune areas, which was stated as an outcome in the bill analysis by the Senate Fiscal Agency. The Michigan Townships Association and other expressed concern that the destiny of critical dune areas should include the perspective of local units of government, not just the state DEQ.

“There are legitimate issues to resolve with Michigan’s critical dunes law in regard to both improving ecological protections and private property rights,” said Nick Occhipinti of the West Michigan Environmental Action Council. “SB 1130 regresses on the former and overreaches on the latter.

“We can’t mess around with the Pure Michigan ecosystems that make this state so special,” Occhipinti added.

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