Local government has an important role for water quality protection: Part 3
State and federal regulations help protect water resources but does not do the whole job. Local government has an important role also – buffers and greenbelts are enforceable and are not property takings.
Local governments have a very important role to play in the protection of surface water, ground water, drinking water and wetlands; often filling the gaps in state and federal regulations. If local government, with local zoning does not do so, those gaps may not be addressed. There are various state and federal laws designed to protect water quality. But relying only on state laws may not do a complete job and is not as successful at being preventative as zoning can be.
In part one of this series of articles “Local government has an important role for water quality protection” the focus was on how to determine the amount, or distance, of greenbelt buffer along lakes and rivers. Part two focused on the importance of protecting the natural resource and habitat along lake and stream edges. This article focuses on the idea that regulations requiring such greenbelts and buffers are within the authority of local government and does not raise the specter of a property taking.
It is possible to regulate (with zoning or other police power ordinances) the use of someone’s property so severely that it in effect becomes government taking the land without compensation. Property rights are protected from government actions amounting to taking one’s property in both the Michigan and United States constitutions. However, that does not mean there would be a taking from any regulation that zoning may impose. For more detail on when a taking occurs, or does not occur see Administration of zoning seldom results in property takings but claims are more frequent: Part 1 and Part 2.
Setback requirements in zoning are very common. Setbacks are the regulations that say structures shall be placed at least a certain number of feet from the front property line (or road right-of-way line), side and rear property lines. In some locations along the Great Lakes shoreline there are high risk erosion setbacks, designed to require a structure to be placed far enough back from the top of the Great Lake bluff so that it does not erode into the lake in less than 30 years. Those regulations might be in local zoning, and if not then are enforced by the Michigan Department of Environmental Quality.
Likewise requiring a certain distance back from the water’s edge of a lake or river can be done – and some would argue should be a part of responsible contemporary zoning. See the first part of these three articles for discussion on how far that distance should be. In addition, requirement of certain vegetation in that setback is also an appropriate regulation in zoning. A setback with vegetative requirements is often called a “greenbelt” or “buffer.”
Greenbelts and buffers can also be enforced. In a Michigan Court of Appeals court case, Schall v. City of Williamston, the court ruled such enforcement was legitimate and could be done. The appeals court held that the trial court did not err by finding no material disputed fact that defendants’ landscape buffer failed to comply with the zoning ordinance (and special use permit) and thus, was an abatable nuisance per se. In this case the green buffer was required between outdoor retail farm implements and neighboring property.
The appeals court held that the zoning ordinance was clear and unambiguous. Defendants could not operate without “complying with the pertinent landscape buffer requirements of the zoning ordinance.” The minimum standards of the ordinance applied except to the extent they were satisfied by the existing vegetation. It was undisputed that at the time the case was initiated the landscape buffer did not meet the minimum standard of “closely spaced evergreens” that “form a complete visual barrier at least six feet in height.”
Not only can local government enforce such clauses:
“Moreover, our Supreme Court has recognized that neighboring property owners have an equitable cause of action to enforce compliance with local zoning regulations. Cook v Bandeen, 356 Mich 328, 330-334; 96 NW2d 743 (1959) (‘residents in the immediate vicinity’ had the right to obtain injunctive relief from land use contrary to zoning ordinance); Jones, 326 Mich at 128-135 (‘property owners in the area affected’ had a right to seek equitable relief from use in violation of local zoning); Baura v Thomasma, 321 Mich 139, 142-143, 146; 32 NW2d 369 (1948) (neighbors of proposed use in violation of zoning ordinance were ‘entitled to the equitable relief’).”
What is important from this court case is the zoning ordinance requirement for a greenbelt or buffer and setback need to be clear and unambiguous. That is the ordinance landscaping requirements are the minimum standards for landscaping and screening, e.g., “a minimum 15 feet wide” and “a staggered double row of closely spaced evergreens (i.e., no farther than 15 feet apart) which can be reasonably expected to form a complete visual barrier at least six feet in height within three years of installation.”
Michigan State University Extension has training programs on the topics of water protection. These programs are a couple of many MSU Extension offerings for local government and community, economic development officials. Contact your local government and public policy Educator to sponsor such training in your county.