Act 97 amends the Michigan Zoning Enabling Act to provide that a biofuel production facility that complies with certain requirements would be a permitted use of property and not subject to special land use approval. The act also prescribes special land use approval application requirements for those facilities that meet some, but not all of the requirements in the act. Local units of government would retain the right to authorize a facility as a permitted use not subject to this special land use approval. The act also defines the word "biofuel" as any renewable fuel product, whether solid, liquid, or gas that is derived from recently living organisms or their metabolic by-products and meets applicable quality standards, including, but not limited to, ethanol and biodiesel. The act's definition of biofuel does not include methane or any other fuel product from an anaerobic digester (Lowe 2011).. Senator Arlan Meekhof of the 30th State Senate District on January 20, 2011 introduced Senate Bill 0046. Governor Rick Snyder approved Act No. 97 for immediate effect on July 19, 2011. The act amends the Michigan Zoning Enabling Act, which authorizes local units of government to enact zoning ordinances that regulate land development and establish districts in which land and structures may be used for particular purposes. Also, the legislative body of local units may provide for special land uses in a zoning district, subject to approval by a local body or official as provided in the zoning ordinance. The provisions in Act 97 relate to a situation in which a farm owner applied for special land use approval in order to produce ethanol at a facility on the farm. Previously, approval was not granted either because the local body or official denied it or because statutory procedures were not allowed. To address this issue, it was believed that the Michigan Zoning Enabling Act should be amended to identify relatively small on-farm biofuel production as a permitted use, and provide that approval would not be required if the farms grow most of the necessary feedstock and use most of the biofuel produced.
A biofuel production facility with a maximum annual production capacity of 100,00 gallons of biofuel would be a permitted use of property and would not be subject to special land use approval if it meets three requirements:
a) The facility is located on a farm.
b) The facility is located at least 100 feet from the boundary of any neighboring property under different ownership and meets all applicable setback requirements of the zoning ordinance.
c) On an annual basis, at least 75% of the feedstock for the facility was produced on the farm where it was located, and at least 75% of the biofuel or another product or byproduct produced by the facility was used on that farm.
If a property has a maximum annual production capacity of 100,000 gallons of biofuel and meets requirements (a) and (b) but not (c), it may be permitted if it receives a special land use approval. A biofuel production facility with a maximum annual production capacity of more than 100,000 gallons but not more than 500,000 gallons of biofuel that meets requirements (a) and (b) but not (c) may be permitted with a special land use approval as well.
For those production facilities that are subject to special land use approval, an application for that approval must be submitted. The application must include a site plan, description of process to be used to produce biofuel, number of gallons of biofuel anticipated to be produced annually, an emergency access and fire protection plan, and information demonstrating that the facility would comply with the requirements of Act 97. The facility must also have sufficient space storage for all raw materials, fuel, and additional byproducts. The applicant also has to comply with any additional information requested by the body or official responsible for granting special land use approval and include any necessary federal documentation. Within 60 days of filing the application, the local unit of government must hold a hearing on it. Special land use approval of a biofuel production facility is explicitly conditional on the facility complying with all local, state, and federal laws.
The act specifies that it would not affect the authority of a local unit of government prohibit or authorize biofuel production facilities not located on farms. Also, the special land use approval provisions in the act would not apply to a biofuel production facility if a local zoning ordinance provided different criteria for special land use approval of a biofuel production facility located on a farm.
Proponents of the act argued that the provisions would enable a farm to produce much or most of the energy it needs to operate. Also, the byproduct would be usable as livestock feed. Therefore, farms would save money on both energy and feed, and make full use of its resources. Proponents also claim that increased use of biofuel would reduce environmentally harmful emissions and reliance on foreign oil. Corn growers are among the biggest proponents of the act. Approximately 2/3rd of Michigan's corn is exported out of state (Launder 2001). Increasing ethanol production in Michigan by 15 million gallons per year would utilize 6 million more bushels of corn each year. This would add approximately $1.70 in value to each bushel (Launder 2001). These proponents insist that by allowing on-farm biofuel production facilities, the act will help keep more of Michigan's corn crop in the State and more money in farmer's pockets. Also, it is argued that the provisions relating to special land use approval would create a marketing opportunity for a farm that did not meet the requirements for production of the feedstock and use of the biofuel and byproducts (requirement (c) from above). This would allow these farms to obtain a special land use approval so it could sell the biofuel and the livestock feed it produced, generating income for the farm and contributing to the local economy.
Opponents argue that biofuel production is of an industrial nature and therefore doesn't fit within the parameters of rural and agricultural land use. They believe that the amount of biofuel that a facility could produce without special land use approval is much more than what is needed to support a local farming operation. Because many rural communities rely on local volunteer fire departments to provide fire protection, the amount of unused fuel surpluses stored at these farms would be far greater than their capacity to protect in the event of a disaster (Bureau of Labor Statistics 2010). In land zoned as industrial, local governments have planned for this land use and, accordingly, invested in sufficient fire and safety protection. Biofuel production, in general, also has its opponents. As discussed above, biofuel production may be more lucrative for many farmers, causing many to convert to produce only feedstock for its production. However, this could mean a decrease in the production of crops necessary to feed a rapidly growing population, resulting in increased food prices (Wolfram 2011). However, Act 97 doesn't mandate increased or decreased biofuel production. Instead, it only amends state zoning laws to allow biofuel production facilities as a permitted use of property on a farm. Whether or not these zoning provisions will result in increased biofuel production and any associated consequences of that increase will be interesting to follow as Michigan extends its rapidly growing biotechnology industry (White 2011).
Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2010-11 Edition, Fire Fighters, on the Internet at http://www.bls.gov/oco/ocos329.htm (visited February 23, 2012).
Launder, K. (2001). http://www.michigan.gov/documents/CIS_EO_Ethanol_Thesis_87917_7.pdf. East Lansing: Michigan State University.
Lowe, S. (2011). S.B. 46 (S-8): ANALYSIS AS REPORTED FROM COMMITTEE. Lansing: Senate Fiscal Agency.
White, R. (2011, February 10). Chris Peterson: Michigan holds strong potential to lead the bioeconomy. MLive. Retrieved February 23, 2012, from http://www.mlive.com/environment/index.ssf/2011/02/chris_peterson_michigan_holds.html
Wolfram, G. (2011, April 26). Viewpoint: Ethanol subsidy removes corn from food production as world experiences food shortages. MLive. Retrieved February 23, 2012, from http://www.mlive.com/opinion/kalamazoo/index.ssf/2011/04/letter_brazil_understands_how.html