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Stockbridge-Munsee Tribal Law

[2003]

CHAPTER 43 - MOHICAN LAND USE CODE

Section 43.1 TITLE

This law shall be known as the Mohican Land Use Code.

Section 43.2 AUTHORITY

The Mohican Land Use Code is enacted by the Stockbridge-Munsee Band of Mohicans Tribal Council pursuant to its general duty and authority under Article VII of the Constitution, as an exercise of its governmental powers to govern the use, management and administration of lands on the Stockbridge-Munsee Indian Reservation.

Section 43.3 PURPOSE AND LEGISLATIVE INTENT

(A) The purpose of this code is to protect the health, safety, and welfare of the members of the Tribe and to protect and preserve the environment and all natural resources including land, forests, wildlife, air and waters, through appropriate uses of Mother Earth.

(B) This Code incorporates and implements the 1999 Land Use Plan, the 1999 Land Use Impact Review, and the 1996 Forestry Management Plan.

(C) The Tribal Council’s intent in adopting this Chapter is to preserve and protect the political integrity and the economic survival of the people of the Stockbridge-Munsee Community by exercising the Tribe’s inherent powers of self-government, and as a means of regulating and directing the overall impact of reservation land development.

Section 43.4 JURISDICTION

The Mohican Land Use Code shall apply to all lands and waters within the boundaries of the Stockbridge-Munsee Indian Reservation that are held in fee or trust by the Stockbridge-Munsee Community, or by individual members of the Tribe. The provisions shall apply to and shall bind all persons residing or found on such lands within the boundaries, or having title or use of possessory interests to lands of the Reservation, to the extent such Code is not inconsistent with applicable federal law.

Section 43.5 DEFINITIONS

Access Road: A means of vehicular approach, entry to, or exit from property.

Accessory Use: A building or infrastructure use, which is subordinate to and serves a permitted use and is located on the same land as the permitted use.

Assignment: An area of tribal land set aside for a tribal members use and occupancy as established by the Tribal Land Ordinance.

Building: Any structure built for the supporting or sheltering of any use or occupancy.

Camping: Temporary occupancy of any site utilizing tents, camper trailers, etc. for recreational purposes. Temporary under this definition means 30 days with right to apply for 3 subsequent 30-day renewals.

Commercial Farming: Activities related to the growing and harvesting of food, feed, other crops, animals, and animal products which are sold or traded, and which utilizes more than five acres of land.

Conditional Use Permit: A permit that authorizes the recipient to make use of property in accordance with the requirements of this Code as well as any additional requirements imposed. Only conditional uses identified in the Code shall be permitted.

Designation: The term used to describe that certain lands be used for certain defined purposes.

Dwelling: Any building or portion thereof, which is designated or used for residential purposes.

Forestry Permits: Permits issued by the Forestry Department that authorize the recipient to gather and use forest products in accordance with the requirements of the Tribal Forest Resources Ordinance.

General Land Use Permits: Permits issued by the Land Management Department or the Forestry Department that authorize the recipients to make use of property in accordance with the requirements of the Land Use Code or other Tribal laws. The following types of permits are included under this definition: New Construction, Home Installation, Sanitation, Free-Use, Agricultural, Camping, and Tree Removal.

Heavy Manufacturing: Industrial operation where more than one building is involved, where a great deal of activity and storage occurs outside of buildings, and whose effects (such as smoke, noise, light, heat, and odors) can be detected beyond property lines.

Home Business Use: Any use of a private home dwelling as a business venture which is clearly secondary to the main use of the home as a dwelling place, does not change the character thereof, has only limited exterior evidence of such secondary use, and is conducted only by family members residing in the home.

Junkyard: any establishment or premises where five or more inoperable motor vehicles are kept or stored either for purposes of sale or otherwise.

Kennel: a place where four or more dogs over the age of 3 months are boarded, bred, or offered for sale.

Land Management Specialist: a person in the Tribal Land Management Department who administers the programs of the Department.

Land Management Technician: a person in the Tribal Land Management Department who maintains the technical aspects of the Department such as GIS, GPS, and surveying of land.

Land Use Review Board: the group of persons appointed under this Code to make recommendations and/or decisions regarding land use.

Light Manufacturing: Industrial operation where all or nearly all activity is contained within a single building does not require extensive loading and unloading facilities or outside storage, whose effects (such as smoke, noise, light, heat, and odors) cannot be detected beyond the boundaries of the property.

Low Density: a minimal or low per capita ratio of dwellings per fixed measure of land area.

Manufactured home: a factory built structure that is manufactured or constructed under the authority of the National Manufactured Home Construction and Safety Standards Act to be used for human habitation. A manufactured home is not a mobile home.

Mobile home: a transportable single-family dwelling intended for permanent occupancy that by original design is capable of being moved on public streets and highways.

Modular Home: a manufactured or factory built home that conforms to standard building codes and is not equipped with any wheels or axles allowing it to be moved, other than for purposes of moving to a permanent site.

New Construction: the erection of a new structure or other permanent fixture on unused land.

Permitted Use: A use of land that is allowed within a designation.

Person: Individuals, tribal government, firms, organizations, corporations, associations and any other similar entity.

Reservation: the two townships of land legally described as T28N R13E and T28N R14E and including within those townships all tribally owned land, all lands owned by enrolled members in fee, and all lands held by enrolled members in individual trust.

Structure: anything constructed or erected that requires location on the ground or attached to a location on the ground, but not including fences.

Tribal Council: the governing body of the Stockbridge-Munsee Community, Band of Mohican Indians.

Travel Trailer: a structure built on a chassis with or without a complete kitchen or toilet, and designed to be used for temporary habitation for travel or recreation.

Unnecessary hardship: any circumstances which were not self-created and which affect a particular land assignment or lot, making strict adherence to the requirements of this code as to area, density setbacks, or frontage burdensome or unreasonable.

Variance: An exception or waiving of the provisions of this Code for standards for yard setbacks, minimum lot requirements, or density requirements where it would cause unnecessary hardship to adhere to the Code.

Yard: an open space on the same lot with a building and unoccupied by structures.

Front yard: a yard extending the full width of the lot or assignment and that is between a building and the road-right-of-way.

Rear yard: a yard extending the full width of the lot or assignment and that is between a building and the rear lot property line or assignment line.

Side yard: a yard on each side of a building extending from the building sidewall to the side lot property line or assignment line.

Section 43.6 ESTABLISHMENT OF LAND USE DESIGNATIONS

The Stockbridge-Munsee Tribal Council, by adoption of the Preliminary Mohican Land Use Plan in October 1999, approved designating areas of tribal land to be used for certain purposes. That plan, as revised, and future amendments are incorporated by reference. The Stockbridge-Munsee Forestry Management Plan as approved in 1996 and any future amendments are also incorporated by reference.

All reservation lands are divided into designated areas as follows:

Designation Abbreviation

The requirements set for each designation shall be minimum requirements and shall apply uniformly to each except as provided by the procedures set forth in this chapter.

A map of land use designations on tribal lands and entitled "Mohican Land Designation Map" is incorporated as a part of this Code and is adopted by reference and declared to be a part of this Code. No changes of any nature shall be made to the Map, Land Use Plan, or Forest Management Plan except by Tribal Council Resolution. The most recent map shall be identified by the signature of the Tribal President together with the date of adoption of said map.

Section 43.7 STATEMENT OF PURPOSE AND PERMITTED USES

The following sections specify the purpose, intent, and permitted uses for each class of land use designation identified under Section 43.6 of this Code.

43.7 (A) HOUSING/RESIDENTIAL

This designation is intended to provide lands for low-density single-family dwellings for human habitation, and for certain private and public facilities or services that are compatible with neighborhood surroundings.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(a) Single-family dwellings

(b) Duplex (2-family, 3-family, 4-family) dwellings

(c) Multi-family (more than 4 families) dwellings

(d) Manufactured, modular, mobile homes

(e) Parks and playgrounds and related structures

(a) Private garages/private storage of motor vehicles

(b) Accessory uses customarily incidental to the permitted uses

(a) Governmental facilities use.

(b) Churches and religious sites

(c) Public recreational facilities

(d) Home Business use. (Home business use may differ if the home is in a sub-division where
homes are in closer proximity, depending on what type of business involved.)

(e) Public and private schools

(f) Farming, orchards, nurseries for private use

(g) Travel trailers used as dwellings and not in a permitted mobile home park or trailer court

(h) Mobile home parks/trailer courts

(i) Automobile junkyards.

(j) Rental of land and/or home on tribal land. This excludes fee land owned by individual tribal members.

The Tribal Council reserves the right to tax or require paid lease for non-enrolled persons living in rented
homes on tribal land to compensate for snow removal, garbage pickup, and other services provided.

(4) Prohibited Uses: All other uses are prohibited.

(5) Cluster Development. The following provisions apply to areas that are developed as planned communities for housing

(a) A development plan shall be drafted and approved by the Tribal Council
for number of sites and size of sites.

(b) A "footprint" of where each dwelling will go shall be pre-determined in
the development plan, utilizing above density requirements to the extent
practical.

(c) There shall be a designated park area for each cluster development that
has at least ten (10) housing sites.

(d) The plan shall include road patterns and standards for their development.

(e) The plan shall include other infrastructure such as wastewater treatment, water
accessibility and electricity.

(6) Additional Requirements. The following provisions apply for mobile homes within the Housing/Residential Designation.

(a) A mobile home shall be placed on a cement pad which shall be constructed to provide for adequate
drainage and support against settling and frost heave.

(b) A mobile home shall be in intact condition with a good exterior appearance. Wiring and insulation shall
meet State code. There shall be no minimum age requirement.

(c) Skirting shall be placed and maintained around the base of all mobile homes.

(d) All mobile homes shall be secured by the use of the appropriate tie-down mechanism.

(7) The minimum lot requirement for a mobile home shall be one (1) acre.

43.7 (B) Commercial/Enterprise

This designation is intended to provide lands for the location of businesses with good access to major roadways.

(1) Permitted Principal Uses: The following principal uses are permitted under the designation upon issuance of any necessary land use permit.

(a) Retail and wholesale sales: grocery, hardware, general merchandise, handicraft, other sales to
consumers.

(b) Professional and semi-professional offices such as doctor, dentist, attorney, real estate.

(c) Eating and drinking establishments.

(d) Personal services such as barber shops, hair stylists, etc.

(e) Theaters

(f) Business services including any warehousing and storage services

(g) Automobile gas stations and parking

(h) Churches

(i) Motels and hotels

(j) Indoor and outdoor recreational uses

(k) Laundromats

(2) Permitted Accessory Uses

(a) Parking of trucks and delivery vehicles

(b) Activities and uses which are customarily associated with the principal uses

(3) Conditional Uses The following uses are allowed in accordance with requirements for and upon the
issuance of a conditional use permit:

(a) Hospitals, nursing homes, community-based residential facilities

(b) Light manufacturing clearly incidental to a retail business lawfully conducted on the premises.

(c) Community centers

(d) Automotive sales and repair service

(e) Adult Day Care

(f) Youth Day Care

(4) Prohibited Uses. All other uses are prohibited.

43.7 (C) Industrial/Manufacturing

This area is intended to provide for light manufacturing where all or nearly all activity is contained within a single building, does not require extensive loading and unloading facilities or outside storage, and whose effects such as smoke, noise, light, heat, and odors cannot be detected outside property boundaries; and heavy manufacturing where more than one building is involved, where there is a great deal of activity with storage outside of buildings, and effects such as noise, smoke, dust, heat, light, and odors can be detected beyond property lines. These areas shall be located on roads suitable for industrial traffic and compatible with nearby land uses.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit.

(a) Agricultural supplies, machinery and equipment sales

(b) Building contractor, equipment and material storage

(c) Carpentry, cabinetmaking, woodworking

(d) Electric light and power company yards

(e) Express mail and packages warehousing

(f) Fish or meat wholesale, storage, curing

(g) Commercial Kennels

(h) Manufacturing, processing, packaging or treatment of such products such as drugs, bakery good, food, candy, beverages, dairy products, cosmetics and toiletries

(i) Manufacturing, assembling, or treatment of articles or merchandise from bone, cellophane, canvas, cloth, cork, feathers, felt, fiber, fur, glass, hair, horn, leather, metal, paper, plastics, precious and semi-precious minerals, shells, textiles, tobacco, wood, yarns, and paints.

(j) Motor vehicle wrecking or junkyards, provided it is fully screened or fenced so that the storage and operation is not visible from any public roadway or other property. If fence barrier is not provided within 45 days, Tribe may provide at owner’s expense.

(k) Radio, television, and communications transmitting station and tower.

(l) Sawmill and lumber yard

(m) Storage warehouses

(2) Permitted Accessory Uses. Uses customarily incidental to any of the above listed.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit, because of the consideration of odor, dust, smoke, noise, fumes, or hazard. All
environmental codes shall be met.

(a) Acid manufacturer

(b) Asphalt manufacture, mixing, refining

(c) Blast furnaces or coke ovens

(d) Cement, lime, gypsum, or plaster of paris manufacture

(e) Explosives, storage or manufacture

(f) Reduction of disposal of garbage or similar refuse

(g) Rock crushers

(h) Rubber reclaiming

(i) Tanneries

(j) Wineries

(k) Manufacturing of industrial or household adhesives, glues, or
cements or component parts thereof.

(l) Automobiles, mobile homes, motorized vehicles sales and
services.

(m) Bus line depot, garage and repair

(n) Fuel distributors

(o) Resource extraction (quarrying)

(p) Slaughter houses

(q) Solid waste transfer station

(r) Large-scale laundries

(4) Prohibited Uses. All other uses are prohibited.

43.7 (D) Government Facilities/Public Use

This designation is intended to provide land for Tribal governmental services.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary Land Use Permit:

(a) Governmental services office

(b) Fire, police, and ambulance services

(c) Community activities and gatherings

(d) Educational facilities such as schools, colleges, libraries

(e) Health care facilities

(f) Churches

(g) Burial grounds

(h) Elderly care and activities

(i) Recreational activities, both indoor and outdoor

(j) Child care facilities

(k) Homeless shelters

(l) Emergency shelters

(2) Permitted Accessory Uses.

(a) Garages

(b) Storage buildings

(c) Other uses customarily associated with principal uses

(3) Conditional Uses The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit:

(a) Housing/residential

(4) Prohibited Uses. All other uses are prohibited.

43.7 (E) Commercial Forest

This designation is intended to identify that portion of the forests which shall be managed by the Tribe to produce quality saw timber and pulpwood for sale.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary Land Use Permit:

(a) Growing and harvesting of forest products and all operations associated with such uses; timber production.

(b) Fish and game management

(c) Harvesting of wild crops for non-commercial use.

(d) Camping, subject to camping permit policies

(2) Permitted Accessory Uses

(a) Hunting, fishing, and trapping subject to Tribal Fish and Game Ordinance.

(b) Gathering of firewood, subject to Tribal Forest Resources Regulations Ordinance.

(c) Low impact recreational activities i.e.. hiking, bridle trails, picnicking

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit:

(a) Lumber milling utilizing portable mills

(4) Prohibited Uses. All other uses are prohibited.

43.7 (F) Wilderness

This designation (called Forest Preserve in Tribal Forestry Management Plan) is intended to set aside lands that shall not be developed or disturbed for any reason so as to protect the environment and provide wildlife habitat, but remain open for use for low impact recreation and for hunting subject to Tribal Natural Resources Ordinance.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary Land Use Permit:

(a) Fish and wildlife management

(b) Harvesting of wild crops, personal use only

(c) Low impact recreational activities, ie. hiking, bridle trails, picnicking, canoeing

(d) Nature trails

(e) Camping, subject to camping permit policies

(2) Permitted Accessory Uses

(a) Hunting, fishing, trapping

(b) Swimming

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit:

(a) Camping

(b) Educational field trips

(c) Scientific research

(d) Selective timber harvesting when Forestry Committee determines necessary to control insects or disease.

(4) Prohibited Uses. All other uses are prohibited.

43.7 (G) Parks/Recreation

This designation is intended to provide lands for outdoor enjoyment of the environment by the tribal public.

(1) Permitted Principal Uses The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(a) Outdoor recreational activities such as baseball, softball, football, basketball, soccer, volleyball.

(b) Picnicking

(c) Playgrounds and playground equipment

(d) Nature trails

(e) Campgrounds

(f) Swimming

(g) Boating/Canoeing

(h) Camping, subject to camping permit policies

(2) Permitted Accessory Uses

(a) Picnic tables, grills

(b) Structures, such as picnic shelters and public restroom facilities

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(a) Housing/Residential

(4) Prohibited Uses. All other uses are prohibited.

43.7 (H) Utilities/Infrastructure/Transportation

This designation is intended to set aside the necessary lands that provide services to the community such as water and sanitation systems, and to specify which lands are suitable for transportation links.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(a) Water tower

(b) Public sewage treatment facilities

(c) Electrical power substations; hydro, fuel/gas, wind

(d) Telecommunications (towers, boxes)

(e) Roads

(f) Airstrips

(2) Permitted Accessory Uses. Uses customarily associated with principal uses

43.7 (I) Historic/Cultural

This designation is intended to set aside lands that shall enable historic and cultural traditions to be practiced.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(a ) Pow-wow grounds

(b) Maple sugaring

(c) Historical exhibits

(d) Conduct of religious or cultural activities

(e) Cultural and ceremonial activities

(f) Education and recreation related to tribal cultural activities

(g) Camping, subject to camping permit policies

(2) Permitted Accessory Uses

(a) Parking areas

(b) Hunting, fishing, trapping, subject to Natural Resources Ordinance

(c) Harvesting wild crops, noncommercial use only

(d) Other uses customarily associated with principal uses

(3) Prohibited Uses. All other uses are prohibited.

43.7 (J) Agricultural

This designation is intended to set-aside lands that are suited for purposes of farming, animal range, orchards, gardens and related activities.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(a) Farming, including the use of land and buildings for the purpose of obtaining a profit or subsistence by raising, harvesting, and selling crops, or by the breeding, feeding, management and sale of livestock, poultry or honeybees, or for dairy products or any other agricultural or horticultural use or animal husbandry and any combination thereof. Farming includes the preparation, processing, and storage of the products raised on such land for human or animal use and the disposal by marketing or otherwise, and buildings to conduct such activities.

(b) Tree farms

(c) Horticultural nurseries

(d) Pasture and grazing

(e) Private and commercial kennels

(f) Temporary seasonal roadside stands to sell agricultural products

(2) Permitted Accessory Uses: Uses customarily associated with principal uses

(3) Conditional Uses: The following uses are allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(a) Rental for agricultural uses

(b) Recreational facilities

(c) Housing/Residential

(d) Public parks and playgrounds

(e) Concentrated Animal Feeding Operations

(4) Prohibited Uses. All other uses are prohibited.

43.7 (K) Multipurpose/Mixed Use

This designation is set aside for more than one purpose or to be used in the future for one of several purposes. In order to regulate the effects of differing land uses and assure compatibility, any use desired in this designation shall be allowed only under a Conditional Use Permit.

Any of the uses listed in this Code under the following designations is allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(1) Housing/Residential

(2) Commercial/Enterprise

(3) Industrial/Manufacturing

(4) Government Facilities/Public Use

(5) Commercial Forest

(6) Wilderness

(7) Parks and Recreation

(8) Utilities/Infrastructure/Transportation

(9) Historic/Cultural

(10) Agricultural

Section 43.8 DENSITY PROVISIONS

These provisions apply to any dwelling for human habitation and to any type of structure.

(1) Minimum Set-back Requirements:

(a) Front: The minimum setback from the centerline of the roadway shall be 50 feet.

(b) Side: The minimum side-yard setback shall be 25 feet.

(2) Maximum Setback Requirements:

(a) Front: The maximum setback from the centerline of the roadway shall be 300 feet. The structure must be within the 300 feet setback

(3) Minimum Lot Size: The minimum lot size shall be one (1) acre.

(4) Waterway setback: Minimum of 300 feet to nearest navigable stream.

Section 43.9 CONFORMANCE WITH CODE

No land shall hereafter be used or occupied, and no structure shall hereafter be erected, converted, constructed or structurally altered unless in conformity with all the regulations specified in this Code.

Section 43.10 CONFORMANCE WITH OTHER LAWS

Uses of land under this ordinance shall comply with all applicable laws, including environmental laws.

Section 43.11 NONCONFORMING USES OF STRUCTURE AND LAND

Use of lands, waters, or buildings which lawfully existed at the effective date of this Code but which do not comply with the regulations of this Code may be continued but their designated use of the land may not be changed except to a permitted use or to a conditional use if approved by the Land Use Review Board as identified in Section 43.17. For purposes of this section, "use" means occupied and/or maintained for a certain purpose, and does not apply to land that is vacant and is not being used.

Section 43.12 DETERMINATION OF USES NOT LISTED

In any designation, whenever a use is neither specifically permitted nor denied, the use shall be considered to be prohibited. In such a case a recommendation may be made by the Land Management Department to the Land Use Review Board for approval of other appropriate land for such use. The Tribal Council shall have final approval of such recommendation.

Section 43.13 GENERAL LAND USE PERMITS

(A) Activities Not Requiring Permits. With the exception of Section 43.12(B), any land use permitted outright in any designation, may be conducted without permit provided it is conducted in accordance with this Code and other tribal laws.

(B) Activities Requiring Permits. Any person shall apply for and receive the appropriate Land Use Permit before starting any new construction, before bringing in any type of manufactured or mobile home, before installation of any well and septic system, before harvesting of certain forest products, before using any agricultural lands, before camping, and before any tree removal. The following types of permits are available: Construction Permit, Home Installation Permit, Sanitation Permit, Forestry Products Permit, Agricultural Permit, Camping Permit, and Tree Removal Permit.

(C) Processing of Permits. Permits shall be processed in accordance with Section 43.15, Permit Process, of this Code, except camping permits, forestry products permits and tree removal permits.

(D) Camping Permits. Camping permits shall be issued by the Land Management Department under a policy approved by the Tribal Council.

(E) Forestry Products Permits and Tree Removal Permits. Forestry products permits and tree removal permits shall be issued by the Forestry Department. The Forestry Department shall assess cases of damaged or diseased tree(s) in yards and may give verbal permission for removal.

Section 43.14 CONDITIONAL USE PERMITS

(A) Purpose. While certain compatible uses are permitted outright within a designated area, certain other uses may be acceptable but may need their impact carefully evaluated before their use is allowed. Such uses are classified as conditional uses. The Land Use Review Board shall approve Conditional Use Permits.

(B) General Provisions. A conditional use permit may be issued only for conditional uses listed in this Code under each specific land use designation.

(C) Applying for a Conditional Use Permit. Application forms for a conditional use permit shall be available at the Land Management Department. The applicant shall complete the form and return it to the Land Management Department who shall review it for completeness.

(D) Processing of Permit. The permit shall be processed in accordance with Section 43.15, Permit Process, of this Code.

Section 43.15 SPECIAL USE PERMITS

(A) Purpose. There are certain land uses that are of such unique or infrequent form as to make impractical their being included automatically in any designation of use. Allowing the operation of these uses shall be subject to review and approval of a Special Use Permit by the Land Use Review Board.

(B) General Provisions. Special Use Permits may not be granted for use in a designation from which it is specifically excluded.

(C) List of Special Uses

(1) Automobile dismantling, wrecking, or junkyards; provided, that such uses shall be specifically excluded from all but the Commercial/Enterprise, Industrial/ Manufacturing.

(2) Burial Grounds, Cemeteries, Individual Burials; provided that such uses shall be specifically excluded from housing/residential, commercial forestry, and any
lowlands.

(3) Drive-in theaters, race tracks, or other outdoor commercial amusements of a permanent nature involving a large assembly of people; provided that such uses shall be specifically excluded from all designations except Commercial/Enterprise, Industrial/ Manufacturing, and Multipurpose/ Mixed Use.

(4) Mining, including quarrying, mineral extraction, explorations, and conversion facilities; provided that such uses shall be specifically excluded from Housing/Residential and Wilderness designations.

(5) Sanitary landfill. Such uses shall be specifically excluded from Housing/ Residential and Wilderness designations

(D) Applying for a Special Use Permit. Application forms for a special use permit shall be available at the Land Management Department. The applicant shall complete the form and return it to the Land Management Department who shall review it for completeness.

(E) Processing of Permit. The permit shall be processed in accordance with Section 43.15, Permit Process, of this Code.

Section 43.16 PERMIT PROCESSES.

(A) The permitting process is used to inform public decision makers and persons of the environmental and economic effects of actions that have been proposed, and initiate exchange of information among interested parties. The following requirements shall be followed for General Land Use Permits, Conditional Use Permits, and Special Use Permits. These requirements do not apply to permits issued by the Forestry Department under the Forest Products Resources Ordinance.

(1) Receipt of applications. All applications for permits shall be received by the Land Management Department. The Department shall be responsible to develop application forms and assure that all the necessary information for each type of permit can be found on the form.

(2) Who May Submit Applications. Applications for permits shall be accepted only from persons who are tribal members and/or who are owners or assignees or beneficiaries of property, or their agents, or who represent a division or subdivision of the Tribe or a Tribal organization.

(3) Land Use Impact Review.

(a) Before a permit is issued for any purpose except camping, forestry products permits, or tree removal, or before any variance is approved, the request for permit or variance shall go through the Land Use Impact Review.

(b) The Land Use Impact Review requires that all departments and committees or boards with land use-related responsibilities review any proposed action to utilize or disturb tribal land in any way. This is to assure that all interested entities are aware of all proposed uses of tribal lands so that planning is integrated and conflicts are avoided. These departments are: Environment, Enterprises/ Planning, Assets, Land/Enrollment, Land Management, Housing, Roads, Forestry, Utilities, Land Committee Forestry Committee, Housing Board.

(c) The Land Use Impact Review is processed through the Land Management Department, which shall require that requests for review by departments are completed and returned within 45 days. A reasonable extension may be granted at the request of any participant.

(d) The results of the Land Use Impact Review shall be forwarded to the Core Planning Group, a representative entity of the departments as listed in (b) of this subsection, for recommendation for approval or denial of general land use permits identified in Section 43.12 of this Code.

(e) The results of the Land Use Impact Review shall be forwarded to the Land Use Review Board for their use in determination to grant or deny a Conditional Use Permit as identified in Section 43.13, or a Special Use Permit as identified in Section 43.14.

(B) Land Use Review Board Action:

(1) Conditional Use Permits. The Land Use Review Board shall determine whether the application complies with applicable requirements of this Code, and whether the use shall significantly adversely affect the environment, cultural resources, or endanger public health or safety.

(2) Special Use Permits. The Land Use Review Board shall determine whether the present and future needs of the Tribe shall be adequately served by the proposed Special Use, and if the Tribe as a whole shall benefit rather than be harmed or injured by the proposed use of land.

(3) The Land Use Review Board may attach additional requirements to the issuance of a Conditional Use Permit or a Special Use Permit to assure harmony with existing or reasonable expected future development of the proposed area.

(4) The Land Use Review Board shall comply with Section 43.18, Hearing Procedures, of this Code when making a determination to approve or deny a Conditional Use Permit or a Special Use Permit.

(C) Issuance of Permits:

(1) Upon recommendation by the Core Planning Group to approve or deny a General Land Use Permit, the Land Management Department shall issue such permit or notify the applicant of denial of the application.

(2) Upon recommendation by the Land Use Review Board to approve or deny a Conditional Use Permit or a Special Use Permit, the Land Management Department shall issue such permit or notify the applicant of denial of the application.

(D) Expiration of Permits. A permit shall expire automatically if, within one year after its issuance, the use authorized by the permit has not commenced, unless the permittee can provide evidence of any action pending which will result in the authorized use.

Section 43.17 VARIANCES

(A) A variance involves an exception to the Code requirements for certain standards for yard setbacks, minimum lot requirements, density requirements, and other dimensional standards. It is not used for construction or installation of a nonconforming structure within a land designation, nor can it be used to allow uses not expressly listed as permitted or conditional uses within a designation.

(B) An applicant for a variance shall show that the following conditions exist:

(1) The property cannot be put to a use listed because of limitations in the dimensions of the land or building.

(2) The applicant has unique exceptional circumstances related to the land in question which are not of his own making, and which would cause practical difficulties or unnecessary hardships if the code was applied.

(3) The requested change shall not alter the environment or character of the land or surrounding neighborhood.

(4) The requested change shall not be materially detrimental to the public welfare or be injurious to property or improvements in the neighborhood.

(C) All applications for a variance shall be received by the Land Management Department. The Department shall be responsible to develop an application form and assure that all the necessary information for a variance request can be found on the form.

(D) Applications for a variance shall be accepted only from persons who are owners or assignees of property, or their agents, or who represent a division or subdivision of the Tribe or Tribal organization.

(E) A public hearing shall be held within 30 days of the application for the variance, at which persons may present their views orally or in writing.

(F) A variance may be issued for an indefinite period or for a specified period only, as determined by the Land Use Review Board.

(G) The Land Use Review Board shall recommend approval of all variances, with final approval by the Tribal Council.

(H) The Board or the Tribal Council may attach conditions necessary to protect the best interests of the surrounding property and the Tribe as a whole.

(I) The Land Management Department shall issue the variance upon receipt of directive from the Tribal Council.

Section 43.18 ADMINISTRATION OF THIS CODE

(A) Tribal Staff Responsibilities, Land Management Department:

(1) The Land Management Specialist shall be responsible for the following duties in the administration and enforcement of this Code:

(a) Receive and review all applications for permits and variances required under this chapter, except those permits issued by the Forestry Department, including providing assistance to all persons in preparation of their applications.

(b) Forestry-related permits shall be issued by the Tribal Forestry Department.

(c) Determine completeness and adequacy of all applications based on the requirements of this chapter.

(d) Record all applications with accompanying documents.

(e) Submit all applications for Land Use Impact Review.

(f) Approve permits as authorized in this Code.

(g) Forward all applications that require Board action to the Land Use Review Board.

(2) The Land Management Technician shall be responsible for the following duties in the administration and enforcement of this code:

(a) Maintain records pertinent to this code including maps, surveys, permits issued, land status, structures, field notes, and photographs.

(b) Receive signed complaints, inspect, investigate, and prepare violation reports. Copies of violation reports along with a recommendation for sanction shall be forwarded to the Tribal Prosecutor’s office and any other appropriate departments or agencies.

(B) Land Use Review Board. The Tribe hereby creates and establishes the Land Use Review Board as a governmental arm of the Tribal Council. The currently established Land Committee shall function as the Land Use Review Board.

(C) Powers and Duties of Land Use Review Board

(1) Hear appeals from any order, decision, requirement, or interpretation made by tribal staff under this code.

(2) Approve applications for Conditional Use Permits and Special Use Permits.

(3) Recommend approval of variances to the Tribal Council.

(4) Hold regular meetings.

(5) Hold public hearings to determine approval or denial of applications for permits and variances, and to hear appeals and Code amendment proposals.

(6) Administer oaths for taking sworn testimony.

(7) Classify undesignated lands for Tribal Council approval.

Section 43.19 HEARING PROCEDURES.

(A) Before making a decision on an application for a Variance, Special Use Permit, Conditional Use Permit, any appeal, or any amendments to this Code, the Land Use Review Board shall hold a hearing on the application, appeal, or amendment. At least one member of the Board shall preside over the hearing, except that the Review Board may designate a hearing officer to conduct the hearing in lieu of a Board member.

(B) Any hearing mandated under this Code shall be held within 60 days of receipt of application for variance, permit, or amendments to Code.

(C) The hearing shall be an open meeting

(D) At least 48 hours notice shall be given of the hearing and any continuations of same.

(E) The Board may place reasonable and equitable limitations on the presentation of evidence and arguments so that the matter at issue may be heard and decided without undue delays.

(F) The Board may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information until the final decision is made.

(G) It shall be the responsibility of the Board to assure that a taped recording shall be made of all hearings and that such recording shall be kept for at least two years. A permanent written record shall also be made of the hearings and the records shall be stored in the Land Management Office.

(H) Whenever practicable, all documentary evidence presented at a hearing as well as all other types of evidence shall be made a part of the record of the proceedings and shall be kept by the Tribe for at least two years. The evidence shall be kept by the Land Management Office.

Section 43.20 ENFORCEMENT AND PENALTIES

(A) Investigation of Compliance, Reporting Violations

(1) The Land Management Department is responsible for the necessary inspection and investigation to assure compliance with this Code and is responsible for documenting the presence of violations.

(2) Any person aggrieved by a violation of this Code may file a complaint with the Department. Upon receiving a complaint, Land Management Department personnel, with the assistance of a law enforcement officer if deemed necessary, shall investigate and gather facts about the complaint.

(3) Within at least 3 business days, or more with good cause, the Department shall report the results of the investigation to the Tribal Prosecutor's office. If the Department becomes aware of a condition that it concludes to be unlawful under this Code, it shall immediately notify the Tribal Prosecutor’s office.

(4) Upon determination by the Tribal Prosecutor of probable cause that a violation of this Code exists, the Tribal Prosecutor may:

(a) Communicate informally with the alleged violators to remedy the violation;

(b) Take court action as permitted under this Code;

(c) Order more investigation and fact gathering;

(d) Bring a forfeiture action against the alleged violator;

(e) Take any other action consistent with the purpose of this Code that common sense and good judgment would allow.

(5) If a violation is believed to be causing harm to the Community or jeopardizing health and safety of any person or the Community, the Tribe may expend its own funds to remedy such violation. If the Tribe expends its own funds to remedy a violation, the person responsible for the violation must reimburse the Tribe for the expenditure. The Prosecutor has the authority to bring an action in order to recover tribal funds expended to remedy the violation.

(B) Prosecution, Injunctions, and Penalties:

(1) It shall be the duty of the Tribal Prosecutor to expeditiously pursue all violations of this Code as reported to its office.

(2) Persons convicted of violations to this Code shall be subject to the penalties herein described.

(3) In addition to forfeiture actions the Tribal Prosecutor may seek enforcement of any and all parts of this Code by court actions seeking injunctions or restraining orders. The Tribal Prosecutor may seek an emergency order from the Court to restrain or enjoin any violation that is jeopardizing the health or safety of any person or is causing environmental damage. Such an order may be sought and issued ex parte if the Tribe shows a good faith effort to serve notice on the necessary parties.

(C) Penalties:

(1) Any act constituting a violation of the provisions of this Code or a failure to comply with any of its requirements, including commencing actions for which permits are required without first having obtained a permit, and including
violations of any conditions and safeguards established in connection with the grants of variances, Conditional or Special Use Permits, shall subject the offender to a civil penalty of up to $100.00 per day.

(2) In lieu of or in addition to monetary civil penalty, any person found guilty of violating this Code may be required by the Court to provide community service assisting in activities useful to the protection of or enhancement of Tribal Lands and related uses.

(3) The Tribal Council has the power to cancel any person’s land assignment or spousal life estate or other interest in tribal land upon a finding of substantial and continuing violations of this Code. Before such an action may be taken, the person with the interest must be given adequate notice and an opportunity to be heard by not less than a quorum of the Tribal Council. The Council may designate procedures for such hearings.

Section 43.21 APPEALS

(A) An applicant may appeal any order, decision, requirement, or interpretation of the Land Management Department to the Land Use Review Board. An appeal is initiated by filing with the Land Management Department and the Review Board a written Notice of Appeal specifying the grounds of the appeal. A Notice of Appeal shall be considered filed when delivered to the Land Management Department, and the date and time of filing shall be entered on the Notice by the staff.

(B) An appeal shall be filed within 30 days after the date of the decision or order.

(C) The Land Management Specialist or designee shall without delay submit to the Land Use Review Board all records on file that are relating to the appeal filed.

(D) An appeal filed stays all actions by the Land Management Department seeking enforcement of or compliance with the order or decision appealed from, unless the Land Management Specialist certifies an opinion to the Review Board that a stay would cause imminent peril to life or property. In that case the proceeding shall not be stayed except by order of the Review Board or the Tribal Court.

(E) The Land Use Review Board may reverse or affirm (wholly or in part) or may modify the order, requirements, decision or interpretation appealed from, and shall make any order, requirement, decision, or interpretation that in its opinion is fair and just.

Section 43.22 JUDICIAL REVIEW

(A) Any party to a proceeding before the Land Use Review Board or the Tribal Council who is aggrieved by the decision or final order of the Board or Council is entitled to limited judicial review thereof in the Stockbridge-Munsee Community Tribal Court. All other remedies shall first be exhausted. Preliminary or procedural actions of the Board or Council are not subject to such review.

(B) An aggrieved party may appeal a final decision or order within 20 days of it becoming final. Upon the filing of an appeal, the final order or decision is automatically stayed during the appeal.

(C) The Tribal Court may not review the matter as an original action, nor may it hear new evidence. The Tribal Court shall give due deference to the Land Use Review Board and Tribal Council.

(D) The Court may only disturb a final order or decision if it is found to be arbitrary and capricious. Arbitrary and capricious means unreasonable and without regard for facts and law.

(E) Upon a finding that a final order or decision is arbitrary and capricious, the Court may only:

(1) Return the decision to the Land Use Review Board or Tribal Council for further proceedings;

(2) vacate the order or decision;

(3) issue an injunction to maintain the status quo during further proceedings.

Section 43.23 AMENDMENTS TO CODE

(A) Authority. The law imposed and the land use designations created under this Code may be amended from time to time whenever the public necessity and convenience and the Tribal general welfare requires. Such a change shall be proposed by the Land Management Department, the Land Use Review Board, the Tribal Council, or any tribal member.

(B) Initiation of Amendment. The proposed change may be initiated by petition to the Land Management Department with the following information:

(1) Description of property affected.

(2) Existing land designation

(3) Proposed land designation.

(4) Any change proposed to text of this Code.

(5) Petitioner’s name, address, and phone number.

(C) Petition. The petition shall be forwarded to the Land Use Review Board who shall, within 30 days of receipt of the petition, schedule a public hearing on the proposed amendment.

(D) Standards for Land Designation Change. The burden of proof shall be with the petitioner to establish:

(1) Conformance with all applicable Codes.

(2) Public need for the change.

(3) That there is no other available property that could better serve the need.

(4) Proof of change of circumstance or mistake in original land designation.

(5) Any other legitimate concern.

(E) Enactment. The Stockbridge-Munsee Tribal Council may, after the public hearing is held, enact a resolution amending this Code or by motion deny the proposed amendment. Such amendments are not subject to the approval of the Secretary of the Interior.

Section 43.24 SEVERABILITY

If a court of competent jurisdiction finds any portion of this Code illegal, the remaining portions of this Code shall remain unaffected and remain in force.

Section 43.25 NO WAIVER OF SOVEREIGN IMMUNITY

Nothing in this Code shall provide or be interpreted to provide a waiver of the Stockbridge-Munsee Community or any of its governmental officers’ and/or agents sovereign immunity from suit.

Section 43.26 EFFECTIVE DATE

This Code shall take effect upon notice of its approval by the Secretary of the Interior.

Legislative History:

Public Hearing held April 29, 2002

Adopted by Tribal Council on May 23, 2002, Resolution No. 024-02

Approved by BIA on June 7, 2002.

Legislative Note:

Resolution No. 024-02 states that "at this time the Tribe shall enforce the Mohican land Use Ordinance only on tribal lands, member trust lands and tribally owned fee lands."

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