Ordinance No. 4 of 2009
AN ORDINANCE PURSUANT TO ACT 246 OF THE PUBLIC ACTS OF 1945, AS AMENDED, TO PROVIDE PROCEDURES INTENDED TO COMPLY WITH FEDERAL AND STATE DUE PROCESS REQUIREMENTS BEFORE INCLUDING PRIVATE PROPERTY ALONG THE LAKE MICHIGAN SHORELINE IN A PHRAGMITES ERADICATION ZONE
THE TOWNSHIP OF BANKS ORDAINS:
Section 1. Title.
This Ordinance shall be known as the Banks Township Phragmites Ordinance.
Section 2. Legislative Findings and Purpose of Ordinance.
Phragmites is an invasive species whose spread is not halted by traditional legal boundaries between parcels. Although Phragmites seeds can cause a small amount of spread, most reproduction is accomplished through runners growing along the ground. A single stand of Phragmites can spread 30-50 feet per year through these runners. If left unchecked, dense Phragmites stands can block views of Lake Michigan and make beaches inaccessible, which can lead to a decline in tourism and property values. In addition, the spread of Phragmites can drive out native plant species thereby destroying beneficial wildlife habitat. As a result, the purpose of this Ordinance is to provide procedures intended to comply with federal and state due process requirements so that all property along the Lake Michigan shoreline with a Phragmites infestation can be included in a Phragmites eradication zone and can receive effective Phragmites treatment. By including all property along the Lake Michigan shoreline with a Phragmites infestation in the Phragmites eradication zone, this Ordinance will help maximize the effectiveness of the Phragmites treatment, thereby eliminating or reducing the adverse impacts of a Phragmites infestation.
Section 3. Definitions. As used in this Ordinance,
“Bottomland” means lands in Lake Michigan, including the bays and harbors thereof, lying below and lakeward of the ordinary high water mark.
“Ordinary high water mark” means the elevation above sea level, International Great Lakes datum of 1955 established for Lake Michigan, 579.8 feet, by Section 32502 of Part 325 of the Natural Resources and Environmental Protection Act of 1984, as amended, being MCL 324.32502, as amended.
“Person” means an individual, firm, corporation, association, partnership, limited liability company, or other legal entity.
“Phragmites” or “Phragmites plant” means the invasive plant species with the scientific name Phragmites australis, also known as the common reed, which is a large perennial grass native to wetland sites throughout temperate regions of the world.
“Phragmites administrator” means the person appointed by the Township Board to administer this Ordinance.
“Phragmites eradication zone” means the bottomland within the Township with a Phragmites infestation that the Township Board has determined is subject to Phragmites treatment.
“Phragmites infestation” means the presence of one or more seed heads in a Phragmites plant.
“Phragmites treatment” means the application of necessary herbicide chemicals by a person authorized to do so under a permit issued by the Michigan Department of Environmental Quality (DEQ).
“Township Board” means the Banks Township Board.
Section 4. Phragmites Inspection; Written Report; Right to Access Property; Consent; Administrative Search Warrant.
Unless the Township Board directs otherwise, the Phragmites administrator shall annually conduct an inspection of all Lake Michigan shoreline property within the Township for the purpose of identifying all parcels on which a Phragmites infestation is present. The Phragmites administrator shall submit a written report of his or her findings to the Township Board no later than the Township Board’s regular June meeting. The Phragmites administrator shall have the right to access all Lake Michigan shoreline property within the Township for the purpose of conducting the Phragmites inspection. However, before entering onto a parcel to conduct the inspection, the Phragmites administrator shall obtain written consent from the property owner for any such inspection. If the property owner fails to provide written consent to the Phragmites administrator for the physical inspection of the parcel, then the Phragmites administrator shall not enter onto the parcel, unless authorized to do so by an administrative search warrant issued by a court of competent jurisdiction.
Section 5. Public Hearing to Show Cause Why Property Should not be Included in Phragmites Eradication Zone; Notice of Public Hearing.
After receiving the written report from the Phragmites administrator identifying all parcels in the Township on which a Phragmites infestation is present, the Township Board shall schedule a public hearing giving the owners of the property identified by the Phragmites administrator in his or her written report submitted to the Township Board under Section 4 of this Ordinance an opportunity to show cause why their property should not be included in the Phragmites eradication zone. A written notice of the public hearing, specifying the time, date, and place of the hearing and stating that the parcel has been tentatively identified for inclusion in the Phragmites eradication zone, shall be sent by first-class mail to all owners of record or other parties in interest whose names and mailing addresses are on the Township assessment records no less than twenty (20) days before the hearing. Notice of the public hearing shall also be published twice in a newspaper of general circulation in the Township with the first publication being no less than twenty (20) days before the hearing.
Section 6. Parcels to be Included in Phragmites Eradication Zone.
Following the public hearing required under Section 5 of this Ordinance, the Township Board shall determine which parcels identified by the Phragmites administrator in his or her written report submitted to the Township Board under Section 4 of this Ordinance shall be included in the Phragmites eradication zone. The Township Board shall exclude a parcel identified by the Phragmites administrator in his or her written report upon a finding that due to the isolation of the parcel in relation to other parcels, the minor nature of the Phragmites infestation on the parcel, or other factors the exclusion of the parcel from the Phragmites eradication zone shall not have a significantly detrimental impact on the effectiveness of the Phragmites treatment in the Township.
Section 7. Application to DEQ for Phragmites Treatment Permit; Permit Fee.
After the Township Board has determined which parcels shall be included in the Phragmites eradication zone for that year, the Phragmites administrator shall apply to the Michigan Department of Environmental Quality (DEQ) for a permit authorizing Phragmites treatment on the parcels within the Phragmites eradication zone. Any fee charged by the DEQ for such Phragmites treatment permit shall be paid for as determined by the Township Board.
Section 8. Phragmites Treatment; Cost.
Following the receipt of a permit from the Michigan Department of Environmental Quality (DEQ) authorizing Phragmites treatment on the parcels within the Phragmites eradication zone, the Township shall engage the services of a professional authorized to engage in Phragmites treatment. The cost of the Phragmites treatment shall be paid for as determined by the Township Board.
Section 9. Validity.
If any section, provision or clause of this Ordinance or the application thereof to any parcel, person or circumstances is held invalid, such invalidity shall not affect any remaining portions or application of this Ordinance, which can be given effect without the invalid portion or application.
Section 10. Effective Date.
This Ordinance shall become effective the day following its publication in a newspaper of general circulation within the Township.
TOWNSHIP OF BANKS
Thomas Mann, Supervisor
Donna L. Heeres, Clerk
Ordinance No. 4 of 2009 was adopted on the 18th day of May, 2009, by the Banks Township Board as follows:
Motion by: Thomas Mann
Seconded by: Mark DeKorne
Yeas: Rubingh, Postmus, Mann, Heeres, DeKorne
Ordinance No. 4 of 2009 was published in the Antrim Review on Thursday, May 28, 2009, and became effective May 29, 2009.
Donna L. Heeres, Clerk Thomas Mann, Supervisor