Mitigation Generally

The City Code addresses the required mitigation for destruction of natural features in Chapter 57 section 5:127(3). An important provision states:

Mitigation shall be provided on-site. However, where mitigation cannot be accomplished on the site, all or part of the mitigation may be provided on public land within the city if approved as part of the site plan or plat.”

The Grove cannot comply with on-site mitigation because its extremely large parking lots and large footprint buildings leave no place for on-site mitigation. Additionally, the off-site mitigation plan is not on public land but is on private land owned by another party. We believe this is not in compliance with Chapter 57 as quoted above.

Wetland Mitigation

Wetland mitigation is discussed in more detail in Chapter 60 section 5.213:

5:213. - Mitigation.

(1) As authorized by section 5:211(4)(b) of this chapter, the City may impose conditions on a use permit for a use or development if the conditions are designed to remove an impairment to the wetland benefits, to mitigate the impact of a discharge of fill material, or otherwise improve the water quality.

(2) The City shall consider a mitigation plan if submitted by the applicant and may incorporate the mitigation actions as permit conditions for the improvement of the existing wetland resources or the creation of a new wetland resource to offset wetland resource losses resulting from the proposed project. Financial assurances may be required to ensure that mitigation is accomplished as specified by the permit conditions. The City shall, when requested by the applicant, meet with the applicant to review the applicant's mitigation plan.

(3) In developing conditions to mitigate impacts, the city shall consider mitigation to apply only to unavoidable impacts that are otherwise permissible utilizing the criteria under Part 303 of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended. Mitigation shall not be considered when it is feasible and prudent to avoid impacts or when the impacts would be otherwise prohibited under this chapter.

(4) When considering mitigation proposals, the City shall make all of the following determinations:

(a) That all feasible and prudent efforts have been made to avoid the loss of wetland resource values.

(b) That all practical means have been considered to minimize impacts.

(c) That it is practical to replace the wetland resource values which will be unavoidably impacted.

(5) If the City determines that it is practical to replace the wetland resource values which will be unavoidably impacted, the City shall consider all of the following criteria when reviewing an applicant's mitigation proposal:

(a) Mitigation shall be provided on-site where practical and beneficial to the wetland resources.

(b) When subdivision (a) of this subsection does not apply, mitigation shall be provided in the immediate vicinity of the permitted activity where practical to the wetland resources provided that mitigation shall be within the same sub-watershed of the Huron River within which the proposed wetland use is located (i.e., the Allen Creek, Fleming Creek, Honey Creek, Malletts Creek, Miller Creek, Swift Run Drain or Traver Creek sub-watersheds). If the proposed wetland use is not within 1 of the foregoing sub-watersheds, then mitigation may be within the Huron River direct discharge area, provided that mitigation in the Huron River direct discharge area shall be within the City limits or within 1 mile upstream of the city limits. Mitigation upstream of the proposed wetland use is preferred.

(c) Only when it has been determined by the Public Services Area Administrator that subdivisions (a) and (b) of this subsection are inappropriate and impractical shall mitigation be considered elsewhere.

(d) Any proposal shall assure that, upon completion, there will be no net loss to the wetland resources. Any mitigation plan approved under this chapter shall provide replacement of wetlands disturbed at a ratio of no less than 1.5:1 and no more than 2:1, in accordance with the federal rules and state operating procedures. Should such rules and procedures change, the most current ratio shall be used.

(e) The proposal shall give consideration to replacement of the predominant functional values lost within the impacted wetland.

(6) Any mitigation activity shall be completed before initiation of other permitted activities, unless a phased concurrent schedule is agreed upon between the City and the applicant.

(7) Monitoring to establish documentation of the functional performance of the mitigation may be required as a permit condition, as well as necessary corrective actions required, to deliver the wetland resource values identified.

The mitigation plan from the prior development (which the developer now seeks to use) does not comply with the city code. The site’s existing wetlands reside in three different sub-watersheds (the Allen Creek, Honey Creek and Mallett’s Creek sub-watersheds), but the mitigation is only in one of the sub-watersheds (Honey Creek). Destruction of the wetlands in the other sub-watersheds should be mitigated within those sub-watersheds.

Additionally, the code requires the mitigation to be located upstream from the destroyed wetland. Here, the off site mitigation is downstream from the existing wetlands.

We believe the proposed mitigation does not comply with Chapter 60 of the city code.