The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6801

June 2, 1994

GOEMAERE-ANDERSON WETLAND PROTECTION ACT:

A municipality adopting a wetlands ordinance making decisions on site plans, plats, and related matters and wetland use determinations

MUNICIPALITIES:

A municipality adopting a wetlands ordinance making decisions on site plans, plats, and related matters and wetland use determinations

Section 8a(2) of the Goemaere-Anderson Wetland Protection Act requires a municipality that adopts a wetlands ordinance to have one body make decisions on site plans, plats, and related matters and wetland use determinations concerning the same wetland use application.

Honorable H. Lynn Jondahl

State Representative

The Capitol

Lansing, MI

You have asked whether section 8a(2) of the Goemaere-Anderson Wetland Protection Act, MCL 281.708a(2); MSA 18.595(58a)(2), requires a municipality that adopts a wetlands ordinance to have one body make decisions on site plans, plats, and related matters and wetland use determinations concerning the same wetland use application.

The Legislature amended the Goemaere-Anderson Wetland Protection Act (the Act), 1979 PA 203, MCL 281.701 et seq; MSA 18.595(51) et seq, to require municipalities adopting wetland ordinances to comply with the conditions set forth in section 8a(2) of the Act, as added by 1992 PA 296, as follows:

A municipality that adopts a wetland ordinance shall process wetland use applications in a manner that ensures that the same entity makes decisions on site plans, plats, and related matters, and wetland determinations and that the applicant is not required to submit to a hearing on the application before more than 1 municipal decision making body. This requirement does not apply to either of the of following:

(a) A preliminary review by a planning department, planning consultant, or planning commission, prior to submittal to the decision making body if required by an ordinance.

(b) An appeal process that is provided for appeal to the legislative body or other body designated to hear appeals. [ Emphasis added.]

Section 8a(2) of the Act specifies that only one municipal decision-making body may pass upon site plans, plats and other related matters, and wetland use determinations on an application as to a particular parcel or parcels of land. The language is plain and must be construed to permit only one municipal decision-making body to pass upon the site plans, plats and related matters, and wetland land use determinations of the municipality as to the parcel or parcels of land on a particular application. Although the plain language rule is arguably applicable here, it is also useful to examine the legislative history. Luttrell v Dep't of Corrections, 421 Mich 93, 101-105; 365 NW2d 74 (1984).

Review of the legislative history confirms this plain reading of section 8a(2). 1992 PA 296, which added section 8a(2) to the Act, was introduced as 1992 SB 807. Senate Legislative Analysis, SB 522 and SB 807, March 24, 1992, states:

Use Applications

A municipality that adopted a wetland ordinance would be required to process wetland use applications in a manner that ensured that the same entity made decisions on site plans, plats, and related matters, and wetland determinations, and that the applicant was not required to submit to a hearing on the application before more than one municipal decision-making body. This requirement would not apply to either of the following:

--A preliminary review by a planning department, planning consultant, or planning commission, prior to submittal to the decision-making body, if required by ordinance.

--An appeal process that was provided for appeal to the legislative body or other body designated to hear appeals. [ Emphasis added.]

The same Senate Legislative Analysis, in considering arguments supporting and opposing SB 807, recognized that "limiting the hearing on an application to not more than one decision-making body could eliminate local wetland or natural feature boards, many of which are staffed by local residents who have expertise and interest in wetlands." Nevertheless, SB 807 was enacted with the requirement that only one final decision-making body may consider site plans, plats and related matters, and wetland determinations for the municipality upon a wetland use application filed in the municipality. The statute does not permit different entities to determine site plans, plats and other related matters, and wetland use determinations on the same application.

It is my opinion, therefore, that section 8a(2) of the Goemaere-Anderson Wetland Protection Act requires a municipality that adopts a wetlands ordinance to have one body make decisions on site plans, plats, and related matters and wetland use determinations concerning the same wetland use application.

Frank J. Kelley

Attorney General