NATURAL RESOURCES AND
ENVIRONMENTAL PROTECTION ACT (EXCERPT)
Act 451 of 1994
324.36101 Definitions.
Sec.
36101.
As used in this part:
(a) "Agricultural
conservation easement" means a conveyance, by a written instrument, in
which, subject to permitted uses, the owner relinquishes to the public in
perpetuity his or her development rights and makes a covenant running with the
land not to undertake development.
(b) "Agricultural
use" means the production of plants and animals useful to humans,
including forages and sod crops; grains, feed crops, and field crops; dairy and
dairy products; poultry and poultry products; livestock, including breeding and
grazing of cattle, swine, captive cervidae, and
similar animals; berries; herbs; flowers; seeds; grasses; nursery stock;
fruits; vegetables; maple syrup production; Christmas trees; and other similar
uses and activities. Agricultural use includes use in a federal acreage
set-aside program or a federal conservation reserve program. Agricultural use
does not include the management and harvesting of a woodlot.
(c) "Conservation
district board" means that term as defined in section 9301.
(d)
"Development" means an activity that materially alters or affects the
existing conditions or use of any land.
(e) "Development
rights" means an interest in land that includes the right to construct a
building or structure, to improve land for development, to divide a parcel for
development, or to extract minerals incidental to a permitted use or as set
forth in an instrument recorded under this part.
(f) "Development
rights agreement" means a restrictive covenant, evidenced by an instrument
in which the owner and the state, for a term of years, agree to jointly hold
the right to undertake development of the land, and that contains a covenant
running with the land, for a term of years, not to undertake development,
subject to permitted uses.
(g) "Development
rights easement" means a grant, by an instrument, in which the owner
relinquishes to the public in perpetuity or for a term of years the right to
undertake development of the land, and that contains a covenant running with
the land, not to undertake development, subject to permitted uses.
(h) "Farmland"
means 1 or more of the following:
(i)
A farm of 40 or more acres in 1 ownership, with 51% or more of the land area
devoted to an agricultural use.
(ii) A farm of 5 acres or
more in 1 ownership, but less than 40 acres, with 51% or more of the land area
devoted to an agricultural use, that has produced a
gross annual income from agriculture of $200.00 per year or more per acre of
cleared and tillable land. A farm described in this subparagraph enrolled in a
federal acreage set aside program or a federal conservation reserve program is
considered to have produced a gross annual income from agriculture of $200.00
per year or more per acre of cleared and tillable land.
(iii) A farm designated
by the department of agriculture as a specialty farm in 1
ownership that has produced a gross annual income from an agricultural
use of $2,000.00 or more. Specialty farms include, but are not limited to,
greenhouses; equine breeding and grazing; the breeding and grazing of cervidae, pheasants, and other game animals; bees and bee
products; mushrooms; aquaculture; and other similar uses and activities.
(iv)
Parcels of
land in 1 ownership that are not contiguous but that constitute an integral
part of a farming operation being conducted on land otherwise qualifying as
farmland may be included in an application under this part.
(i)
"Local governing body" means 1 of the following:
(i)
With respect to farmland or open space land that is located in a city or
village, the legislative body of the city or village.
(ii) With respect to
farmland or open space land that is not located in a city or village but that
is located in a township having a zoning ordinance in effect as provided by
law, the township board of the township.
(iii) With respect to
farmland or open space land that is not described in subparagraph (i) or (ii), the county board of commissioners.
(j) "Open space
land" means 1 of the following:
(i)
Lands defined as 1 or more of the following:
(A) Any undeveloped site
included in a national registry of historic places or designated as a historic
site pursuant to state or federal law.
(B) Riverfront ownership
subject to designation under part 305, to the extent that full legal
descriptions may be declared open space under the meaning of this part, if the
undeveloped parcel or government lot parcel or portions of the undeveloped
parcel or government lot parcel as assessed and owned is affected by that part
and lies within 1/4 mile of the river.
(C) Undeveloped lands
designated as environmental areas under part 323, including unregulated
portions of those lands.
(ii) Any other area
approved by the local governing body, the preservation of which area in its
present condition would conserve natural or scenic resources, including the
promotion of the conservation of soils, wetlands, and beaches; the enhancement
of recreation opportunities; the preservation of historic sites; and idle
potential farmland of not less than 40 acres that is substantially undeveloped
and because of its soil, terrain, and location is capable of being devoted to
agricultural uses as identified by the department of agriculture.
(k) "Owner"
means a person having a freehold estate in land coupled with possession and
enjoyment. If land is subject to a land contract, owner means the vendee in
agreement with the vendor.
(l) "Permitted
use" means any use expressly authorized within a development rights
agreement, development rights easement, or agriculture conservation easement
that is consistent with the farming operation or that does not alter the open
space character of the land. Storage, retail or wholesale marketing, or
processing of agricultural products is a permitted use in a farming operation
if more than 50% of the stored, processed, or merchandised products are
produced by the farm operator for at least 3 of the immediately preceding 5
years. The state land use agency shall determine whether a use is a permitted
use pursuant to section 36104a.
(m) "Person"
includes an individual, corporation, limited liability
company, business trust, estate, trust, partnership, or association, or
2 or more persons having a joint or common interest in land.
(n) "Planning
commission" means a planning commission created by the local governing
body under 1945 PA 282, MCL 125.101 to 125.115, 1959 PA 168, MCL 125.321 to
125.333, or 1931 PA 285, MCL 125.31 to 125.45, as applicable.
(o) "Prohibited
use" means a use that is not consistent with an agricultural use for
farmland subject to a development rights agreement or is not consistent with
the open space character of the land for lands subject to a development rights
easement.
(p) "Property
taxes" means general ad valorem taxes levied
after
(q) "Regional
planning commission" means a regional planning commission created pursuant
to 1945 PA 281, MCL 125.11 to 125.25.
(r) "Regional
planning district" means the planning and development regions as
established by executive directive 1968-1, as amended, whose organizational structure
is approved by the regional council.
(s) "State income
tax act" means the income tax act of 1967, 1967 PA 281, MCL 206.1 to
206.532, and in effect during the particular year of the reference to the act.
(t) "State land use
agency" means the department of agriculture.
(u) "Substantially
undeveloped" means any parcel or area of land essentially unimproved
except for a dwelling, building, structure, road, or other improvement that is
incidental to agricultural and open space uses.
(v) "Unique or
critical land area" means agricultural or open space lands identified by
the land use agency as an area that should be preserved.
History: Add. 1995, Act 59, Imd.
Eff.
Popular Name: Act 451
Popular Name: Farmland and Open Space
Popular Name: NREPA
324.36102
Development rights agreement or easement; execution authorized; provisions.
Sec.
36102.
(1) The state land use
agency may execute a development rights agreement or easement on behalf of the
state.
(2) The provisions of a
development rights agreement or easement shall be consistent with the purposes
of this part and shall not permit an action which will materially impair the
character of the land involved.
History: Add. 1995, Act 59, Imd.
Eff.
Popular Name: Act 451
Popular Name: Farmland and Open Space
Popular Name: NREPA
324.36103 Development rights agreement or easement; effect of
execution and acceptance; term; limitation; disposition; prior lien, lease, or
interest not superseded; lien of state or local governing body; subordination.
Sec.
36103.
(1) The execution and
acceptance of a development rights agreement or easement by the state or local
governing body and the owner dedicates to the public the development rights in
the land for the term specified in the instrument. A development rights
agreement or easement shall be for an initial term of not less than 10 years. A
development rights agreement or easement entered into after
(2) The state or local
governing body shall not sell, transfer, convey, relinquish, vacate, or
otherwise dispose of a development rights agreement or easement except with the
agreement of the owner as provided in sections 36111, 36111a, 36112, and 36113.
(3) An agreement or
easement does not supersede any prior lien, lease, or interest that is properly
recorded with the county register of deeds.
(4) A lien created under
this part in favor of the state or a local governing body is subordinate to a
lien of a mortgage that is recorded in the office of the register of deeds
before the recording of the lien of the state or local governing body.
(5) The state shall
subordinate its interest in a recorded agreement under section 36104 or an
easement under section 36105 or 36106 to a subsequently recorded mortgage lien,
lease, or interest if both of the following conditions are met:
(a) The parcel meets the
requirements set forth under section 36111(2)(a) for
parcels containing existing structures.
(b) The landowner
requesting the subordination is an individual essential to the operation of the
farm as defined in section 36110(5).
History: Add. 1995, Act 59, Imd.
Eff.
Popular Name: Act 451
Popular Name: Farmland and Open Space
Popular Name: NREPA
324.36104
Application for farmland development rights agreement; form; contents; notice;
review, comments, and recommendations; approval or rejection; appeal;
preparation, contents, execution, and recordation of agreement; reapplication;
tax exemption.
Sec.
36104.
(1) An owner of land
desiring a farmland development rights agreement may apply by filing an
application with the local governing body having jurisdiction under this part.
The owner shall apply on a form prescribed by the state land use agency. The
application shall contain information reasonably necessary to properly classify
the land as farmland. This information shall include a land survey or a legal
description of the land and a map showing the significant natural features and
all structures and physical improvements located on the land.
(2) Upon receipt of the
application, the local governing body shall notify the county planning
commission or the regional planning commission and the soil conservation
district agency. If the county has jurisdiction, it shall also notify the
township board of the township in which the land is situated. If the land is
within 3 miles of the boundary of a city or within 1 mile of the boundary of a
village, the county or township governing body having jurisdiction shall notify
the governing body of the city or village.
(3) An agency or local
governing body receiving notice has 30 days to review, comment, and make
recommendations to the local governing body with which the application is
filed. These reviewing agencies do not have an approval or rejection power over
the application.
(4) After considering the
comments and recommendations of the reviewing agencies and local governing
bodies, the local governing body holding the application shall approve or
reject the application within 45 days after the application is received, unless
that period is extended by agreement of the parties involved. The local
governing body's approval or rejection of the application shall be based upon,
and consistent with, rules promulgated by the state land use agency under
section 36116.
(5) If an application for
a farmland development rights agreement is approved by the local governing body
having jurisdiction, the local governing body shall forward a copy, along with
the comments and recommendations of the reviewing bodies, to the state land use
agency. The application shall contain a statement from the assessing officer
where the property is located specifying the current fair market value of the
land and structures in compliance with the agricultural section of the Michigan
state tax commission assessor manual. If action is not taken by the local
governing body within the time prescribed or agreed upon, the applicant may
proceed as provided in subsection (6) as if the application was rejected.
(6) If the application
for a farmland development rights agreement is rejected by the local governing
body, the local governing body shall return the application to the applicant
with a written statement regarding the reasons for rejection. Within 30 days
after receipt of the rejected application, the applicant may appeal the
rejection by submitting the application to the state land use agency.
(7) The state land use
agency, within 60 days after a farmland development rights agreement
application is received under subsection (5) or (6), shall approve or reject
the application. A rejection of an application for a farmland development
rights agreement that has been approved by a local governing body by the state
land use agency shall be for nonconformance with section 36101(f) only. If the
application is approved by the state land use agency, the state land use agency
shall prepare a farmland development rights agreement that includes all of the
following provisions:
(a) A structure shall not
be built on the land except for use consistent with farm operations, which
includes a residence for an individual essential to the operation of the farm
under section 36111(2)(b), or lines for utility transmission or distribution
purposes or with the approval of the local governing body and the state land
use agency.
(b) Land improvements
shall not be made except for use consistent with farm operations or with the
approval of the local governing body and the state land use agency.
(c) Any interest in the
land shall not be sold except a scenic, access, or utility easement that does
not substantially hinder farm operations.
(d) Public access is not
permitted on the land unless agreed to by the owner.
(e) Any other condition and
restriction on the land as agreed to by the parties that is
considered necessary to preserve the land or appropriate portions of it as
farmland.
(8) A copy of the
approved application and the farmland development rights agreement shall be
forwarded to the applicant for execution. An application that is approved by
the local governing body by November 1 shall take effect for the current tax
year.
(9) If the owner executes
the farmland development rights agreement, the owner shall return it to the
state land use agency for execution on behalf of the state. The state land use
agency shall record the executed development rights agreement with the register
of deeds of the county in which the land is situated and shall notify the
applicant, the local governing body and its assessing office, all reviewing
agencies, and the department of treasury.
(10) If an application
for a farmland development rights agreement is rejected by the state land use
agency, the state land use agency shall notify the affected local governing
body, all reviewing agencies concerned, and the applicant with a written
statement containing the reasons for rejection. An applicant receiving a
rejection from the state land use agency may appeal the rejection pursuant to
the administrative procedures act of 1969, Act No. 306 of the Public Acts of
1969, being sections 24.201 to 24.328 of the Michigan Compiled Laws.
(11) An applicant may
reapply for a farmland development rights agreement following a 1-year waiting
period.
(12) The value of the jointly
owned development rights as expressed in a farmland development rights
agreement is not exempt from ad valorem taxation and
shall be assessed to the owner of the land as part of the value of that land.
History: Add. 1995, Act 59, Imd.
Eff.
Popular Name: Act 451
Popular Name: Farmland and Open Space
Popular Name: NREPA
324.36104a
Permitted use; criteria.
Sec.
36104a.
In determining whether a
use is a permitted use, the state land use agency shall consider the following
criteria:
(a) Whether the use
adversely affects the productivity of farmland or adversely affects the
character of open space land.
(b) Whether the use
materially alters or negatively affects the existing conditions or use of the
land.
(c) Whether the use
substantially alters the agricultural use of farmland subject to a development
rights agreement or substantially alters the natural character of open space
land subject to an open space easement.
(d) Whether the use
results in a material alteration of an existing structure to a nonagricultural
use.
(e) Whether the use
conforms with all applicable federal, state, and local
laws and ordinances.
History: Add. 1996, Act 233, Imd.
Eff.
Popular Name: Act 451
Popular Name: Farmland and Open Space
Popular Name: NREPA
324.36105 Land subject to MCL 324.36101(j)(i); application for open space development rights easement;
approval or rejection; provisions; tax exemption.
Sec.
36105.
(1) If an owner of open
space land desires an open space development rights easement, and the land is
subject to section 36101(j)(i),
the procedures for filing an application provided by the state land use agency
shall follow as provided in section 36104, except section 36104(7) and (12) do
not apply to an open space development rights easement.
(2) The state land use
agency, within 60 days after the open space development rights easement
application is received, shall approve or reject the application. If the
application is approved by the state land use agency, the state land use agency
shall prepare an open space development rights easement that includes the
following provisions:
(a) A structure shall not
be built on the land without the approval of the state land use agency.
(b) Improvement to the
land shall not be made without the approval of the state land use agency.
(c) An interest in the
land shall not be sold, except for a scenic, access, or utility easement that
does not substantially hinder the character of the open space land.
(d) Access to the open
space land may be provided if access is agreed to by the owner and if access
will not jeopardize the conditions of the land.
(e) Any other condition
or restriction on the land as agreed to by the parties that
is considered necessary to preserve the land or appropriate portions of
it as open space land.
(3) Upon receipt of the
application, the state land use agency shall notify the state tax commission.
Upon notification, the state tax commission shall within 60 days make an
on-site appraisal of the land in compliance with the
(4) If an application for
an open space development rights easement is rejected under subsection (2), the
applicant may reapply for an open space development rights easement beginning 1
year after the rejection.
(5) The development
rights held by the state as expressed in an open space development rights
easement under this section are exempt from ad valorem
taxation.
History: Add. 1995, Act 59, Imd.
Eff.
Popular Name: Act 451
Popular Name: Farmland and Open Space
Popular Name: NREPA
324.36106
Land subject to MCL 324.36101(j)(ii); application for open space development
rights easement; form; contents; notice; review, comments, and recommendations;
approval or rejection; preparation and contents of easement; appraisal;
statement of fair market value; execution and recordation of easement;
forwarding copies of easement; appeal; legislative approval; costs;
reapplication; tax exemption.
Sec.
36106.
(1) An owner of open
space land desiring an open space development rights easement whose land is
subject to section 36101(j)(ii) may apply by filing an
application with the local governing body. The application shall be made on a
form prescribed by the state land use agency. The application shall contain
information reasonably necessary to properly identify the land as open space.
This information shall include a land survey or a legal description of the land
and a map showing the significant natural features and all structures and
physical improvements located on the land.
(2) Upon receipt of an
application, the local governing body shall notify the county planning
commission, the regional planning commission, and the soil conservation district
agency. If the local governing body is the county board of commissioners, the
county board shall also notify the township board of the township in which the
land is situated. If the land is within 3 miles of the boundary of a city or
within 1 mile of the boundary of a village, the local governing body shall
notify the governing body of the city or village.
(3) An entity receiving
notice under subsection (2) has 30 days to review, comment, and make
recommendations to the local governing body with which the application was
filed.
(4) The local governing
body shall approve or reject the application after considering the comments and
recommendations of the reviewing entities and within 45 days after the
application was received by the local governing body, unless that period is
extended by agreement of the parties involved. The local governing body's
approval or rejection of the application shall be based upon, and consistent
with, rules promulgated by the state land use agency under section 36116. If
the local governing body does not act within the time prescribed or agreed
upon, the applicant may proceed as provided in subsection (9) as if the
application was rejected.
(5) If the application is
approved by the local governing body, the local governing body shall prepare
the easement. If the application is approved by the state land use agency on
appeal, the state land use agency shall prepare the easement. An easement
prepared under this section shall contain all of the following provisions:
(a) A structure shall not
be built on the land without the approval of the local governing body.
(b) An improvement to the
land shall not be made without the approval of the local governing body.
(c) An interest in the
land shall not be sold, except for a scenic, access, or utility easement that
does not substantially hinder the character of the open space land.
(d) Public access to the
open space land may be provided if agreed upon by the owner and if access will
not jeopardize the conditions of the land.
(e) Any other condition
or restriction on the land as agreed to by both parties that is
considered necessary to preserve the land or appropriate portions of it as open
space land.
(6) Upon receipt of the
application, the local governing body shall direct either the local assessing
officer or an independent certified assessor to make an on-site appraisal of
the land within 30 days in compliance with the
(7) If the owner of the
land executes the approved easement, it shall be returned to the local
governing body for its execution. The local governing body shall record the
development rights easement with the register of deeds of the county. A copy of
the approved easement shall be forwarded to the local assessing office and to
the state land use agency for their information.
(8) The decision of the
local governing body may be appealed to the state land use agency, pursuant to
subsection (9).
(9) If an application for
an open space development rights easement is rejected by the local governing
body, the local governing body shall notify the applicant and all reviewing
entities with a written statement of the reasons for rejection. Within 30 days
after receipt of the rejected application, the applicant may appeal the
rejection to the state land use agency. The state land use agency shall have 60
days to approve or reject the application. The state land use agency shall
submit to the legislature each approved application for an open space
development rights easement and an analysis of its cost. The application shall
be approved in both houses by a resolution concurred in by a majority of the
members elected and serving in each house. The amount of the cost shall be
returned to the local governing body where lost revenues are indicated. A copy
of the approved application and an appropriate easement shall be forwarded by
the state land use agency to the applicant for execution and to the local
governing body where the land is situated.
(10) If an application
for an open space development rights easement is rejected under subsection (4),
the applicant may reapply for an open space development rights easement
beginning 1 year after the final rejection.
(11) The development
rights held by the local governing body as expressed in an open space
development rights easement are exempt from ad valorem
taxation.
History: Add. 1995, Act 59, Imd.
Eff.
Popular Name: Act 451
Popular Name: Farmland and Open Space
Popular Name: NREPA