Resource Documents: Law (54 items)
Documents presented here are not the product of nor are they necessarily endorsed by National Wind Watch. These resource documents are provided to assist anyone wishing to research the issue of industrial wind power and the impacts of its development. The information should be evaluated by each reader to come to their own conclusions about the many areas of debate.
Author: Tidgren, Kristine
We’ve recently received a number of inquiries regarding wind energy agreements. This article, while not offering legal advice, is intended to inform landowners as to some of the key legal issues they should consider when evaluating a wind energy agreement proposed by a developer.
According to the American Wind Energy Association, more than 31 percent of Iowa’s in-state electricity generation came from wind in 2015. The Iowa Utilities Board has reported that this is the first time that wind has ever supplied a state with more than 30 percent of its yearly electricity. Sustaining this increase in wind energy output is an increase in wind farm development. When wind farm developers approach landowners about constructing wind turbines on their property, many are left with many questions. Landowners are encouraged to consult with legal counsel and their tax advisors regarding the implications of the agreement they are evaluating. Following are some important considerations.
It’s All in the Contract
The backbone of any wind farm is the wind energy agreement. Every landowner who sells an easement or leases property to a developer does so pursuant to a detailed contract drafted by the developer. It is important that landowners fully understand the rights and obligations detailed in these contracts before signing them. With many of these agreements dictating land usage for the next 50 years or so, it is well worth the expense of hiring an attorney experienced in these matters to review the paperwork before signing. Given the voluntary nature of these projects to date, there may not be a lot of room for negotiation. Even so, landowners should not be afraid to ask for terms that better meet their needs. And landowners should not hesitate to walk away from negotiations if they are not comfortable with the terms offered. Because these contracts often contain a confidentiality clause, landowners usually don’t know the terms of their neighbors’ agreements. As such, it is sometimes difficult to evaluate the fairness of a financial offer.
Lease v. Easement
One sometimes confusing element of wind energy agreements is the nature of the interest being conveyed. Sometimes the agreement will use the term “lease,” and sometimes it will use the term “easement.” Sometimes the agreement will use the terms interchangeably. Many times, the agreement actually conveys a combination of both. While the two interests are similar, they are legally distinct. An “easement” is a right to use a landowner’s property for a specific purpose. Title to the property remains with the landowner, but the purchaser obtains a limited property interest. Because this is an ongoing interest, an easement is recorded in the county land records. It remains binding upon future owners or occupiers for the term of the easement.
Although an easement can be perpetual, wind energy easements are generally for a term, often between 30 and 50 years. Developers often purchase easements to secure a number of rights, including those for ingress and egress, installing transmission lines and facilities, and accessing unobstructed wind. Called “unobstruction” easements, the latter easement restricts landowners from building or conducting activities on their property that would impact the amount of wind reaching the turbine. An easement is usually nonexclusive, meaning that the landowner may continue to farm or otherwise use the land, subject to the rights conveyed by the easement. Some easements may be temporary. Construction easements, for example, usually allow the developer to travel over a larger portion of the property to build the turbine, but end when the construction phase of the property is complete.
A lease, on the other hand, is a conveyance of an interest in land for a term of years in exchange for a rental payment. Without special language in the lease agreement, a lease typically conveys an exclusive right of possession to the tenant. Developers often seek long-term leases for the small parcel of land on which the turbine is located.
Tax Treatment of Payments
The nature of the interests conveyed and the way the payments are structured impact the tax treatment of the payments. Landowners are strongly encouraged to consult with the tax advisors before signing a wind energy agreement. This will prevent surprises at tax time. Generally, if a landowner receives a payment in exchange for an easement in place for 30 or more years, that transaction—for tax purposes—is treated like a sale of the impacted property. If the price does not exceed the basis (generally, the cost) of the impacted property, the basis is reduced by the amount of the easement payment, and the landowner recognizes no income from the sale. If the amount of the payment exceeds the basis, the amount of the payment in excess of the basis is taxed at capital gains rates if the landowner has owned the property for more than one year.
Payments for short-term easements are taxed like lease payments. Both are taxed at ordinary income rates, not subject to self-employment tax. Payments to compensate farmers for crop damages are taxed as ordinary income, subject to self-employment tax. Because these transactions can be complicated, landowners should always consult with their tax advisors for information on the specific tax implications of any agreement before signing.
Another key issue for landowners to consider is liability stemming from the construction and operation of wind towers on their property. Landowners should ensure that developers agree in the contract to indemnify them for damages. This should include defending landowners in future lawsuits and compensating them for legal damages incurred because of the wind farm. The agreement should also require the developer to maintain a sufficient amount of liability insurance to protect the landowner. Landowners should review potential tort liability arising because of a wind farm—including nuisance, negligence, and trespass—with their legal advisors and their own insurers.
Wind farm improvements on a landowners’ property will cause property tax assessments to increase. The agreement should provide that the developer, not the landowner, is responsible for the taxes attributable to the wind farm. Iowa Code § 427B.26 allows counties, by ordinance, to provide for the special valuation of wind energy conversion property, which includes all wind farm facilities, including the wind charger, windmill, wind turbine, tower and electrical equipment, pad mount transformers, power lines and substation. If such an ordinance is passed, the wind conversion property is assessed as follows:
0% of acquisition value for the first year
5% of acquisition value through the sixth year
30% of acquisition value for the seventh and succeeding years
Acquisition value is the acquired cost of the property including all foundations and installation cost less any excess cost adjustment.
Impacted Third Parties
Landowners must not enter into a wind energy agreement without first consulting with and receiving approval from any lenders with a security interest in the property or any tenants farming the land.
A landowner risks accelerating the mortgage if he or she signs an agreement that inadvertently impacts the rights of the lender. Landowners should also ensure that the wind energy agreement will not restrict their ability to encumber the property in the future.
Farm tenants are largely impacted by wind energy agreements. Landowners risk breaching their lease agreements if they enter into a wind energy agreement without the permission of the tenant. While landowners with one-year leases can terminate those leases and renegotiate terms that accommodate the installation of a wind turbine on the property, landlords with multi-year farm leases must engage the tenant in any discussions with a developer. The tenant is in possession of the property for the term of the lease and cannot be displaced. Landowners should consider the impact of the wind farm on future farm tenants as well.
Farm Program Payments
Wind energy agreements can also impact farm program payments. If the land is enrolled in the Conservation Reserve Program, for example, the landowner should consult with the Farm Service Agency to determine the impact of the proposed development on the contract. Sometimes developers are interested in buying back contracts or repaying all benefits paid under the contract to release the land from future CRP obligations. Landowners should consult with their advisors to assess any legal obligations stemming from such an approach.
Land Restrictions and Damages
Landowners must also carefully consider the impact of a wind farm on their farming or other activities. Wind turbines can, for example, interfere with GPS technology. Although that is becoming less of a concern as technology advances. Turbines can also prevent aerial spraying. Some agreements allow farmers to schedule times for spraying when the turbines are shut down. Landowners must also ensure that they understand the full scope of the rights and obligations created by the contract. How many turbines can be built? Who controls the exact location of the turbine? What building and use restrictions accompany the agreement? These are just some of the many questions for which landowners should seek answers.
Landowners should also make sure that the agreement fairly compensates them for ongoing damage incurred because of these restrictions or provides that the developer will timely repair damage to the landowner’s property. For example, the agreement should specify that the developer must repair (within a reasonable period of time) any drain tile damaged because of the developer’s activities. The agreement should also provide for repair and/or compensation for soil compaction and similar types of damage.
What about the Neighbors?
In an effort to reduce future problems, developers often enter into agreements with landowners owning property adjacent to the wind turbine sites. Although not legally required, these agreements provide for a smaller stream of payments to these neighbors in exchange for refraining from activities that may interfere with the operation of the wind park. These agreements also lessen the possibility of tort litigation down the road.
Removal of the Tower
Wind energy agreements typically provide that the developer is responsible to remove the tower (up to a certain depth below ground) when the project ends. Landowners should read these provisions carefully and understand at what point this removal obligation is triggered.
This is merely a brief overview of some of the many issues landowners should consider before signing a wind energy agreement. These agreements can provide a stable source of income over a period of many years. They can also increase tax revenue for schools and bring new jobs to an area. However, landowners must understand the long-term consequences of any agreements they sign. Those consequences will impact the landowners, successive owners, and tenants far into the future. Investing in some trusted legal and tax advice before signing such an agreement will likely yield a positive return.
Kristine A. Tidgren
Center for Agricultural Law and Taxation, Iowa State University, Ames
May 19, 2016
Author: White, Richard; and Bean, Katherine
On our analysis, a number of propositions emerge from the medical and scientific evidence. Some of those propositions had unanimous support by the relevant experts, and others had the support of most.
The propositions which we understand have unanimous support from the relevant experts or are not contested include the following:
- Wind turbines emit sound, some of which is audible, and some of which is inaudible (infrasound);
- There are numerous recorded instances of WTN exceeding 40 dB(A) (which is a recognised threshold for annoyance/sleep disturbance);
- There are also recorded instances of substantial increases in sound at particular frequencies when particular wind farms are operating compared with those at times when they are shut down; (Measurements undertaken at the Waterloo wind farm showed that “noise in the 50 Hz third-octave band was found to increase by as much as 30 dB when the wind farm was operational compared to when it was shut down” – Exhibit A51, p 2.)
- If it is present at high enough levels, low frequency sound and even infrasound may be audible;
- WTN is complex, highly variable and has unique characteristics;
- The amount and type of sound emitted by a wind farm at a given time and in a given location is influenced by many variables including topography, temperature, wind speed, the type of wind turbines, the extent to which they are maintained, the number of turbines, and their mode of operation;
- Wind farms potentially operate 24 hours a day, seven days a week;
- There are numerous examples of WTN giving rise to complaints of annoyance from nearby residents, both in Australia and overseas.
469. The propositions which are supported by the preponderance of relevant expert opinion, and which we accept on that basis, include the following:
- A significant proportion of the sound emitted by wind turbines is in the lower frequency range, i.e. below 20 Hz;
- The dB(A) weighting system is not designed to measure that sound, and is not an appropriate way of measuring it; (It is even acknowledged in the International Standard, ISO 1996-1 that the A-weighting system alone is “not sufficient to assess sounds characterized by tonality, impulsiveness or strong low-frequency content” – Exhibit A29, T43/8; Section 6.1; “Acoustics – Description, measurement and assessment of environmental noise – Part 1: Basic quantities and assessment procedures”, International Standard ISO (1996-1).)
- The most accurate way of determining the level and type of sound present at a particular location is to measure the sound at that location;
- The best way of accurately measuring WTN at a particular location is through ‘raw’ unweighted measurements which are not averaged across time and are then subjected to detailed “narrow-band” analysis;
- When it is present, due to its particular characteristics, low frequency noise and infrasound can be greater indoors than outdoors at the same location, and can cause a building to vibrate, resulting in resonance;
- Humans are more sensitive to low frequency sound, and it can therefore cause greater annoyance than higher frequency sound;
- Even if it is not audible, low frequency noise and infrasound may have other effects on the human body, which are not mediated by hearing but also not fully understood. Those effects may include motion-sickness-like symptoms, vertigo, and tinnitus-like symptoms. However, the material before us does not include any study which has explored a possible connection between such symptoms and wind turbine emissions in a particular population.
We consider that the evidence justifies the following conclusions:
- The proposition that sound emissions from wind farms directly cause any adverse health effects which could be regarded as a “disease” for the purposes of the ACNC Act is not established;
- Nor, on the current evidence, is there any plausible basis for concluding that wind farm emissions may directly cause any disease;
- However, noise annoyance is a plausible pathway to disease; (We note the World Health Organization has stated: “There is sufficient evidence from large-scale epidemiological studies linking the population’s exposure to environmental noise with adverse health effects. Therefore, environmental noise should be considered not only as a cause of nuisance but also a concern for public health and environmental health”– Exhibit A4, T287/5709, citing “WHO. Burden of disease from environmental noise.” World Health Organization; 2011 [viewed April 2013]; Available from: http://www.euro.who.int/en/publications/abstracts/burden-of-disease-from-environmental-noise.-quantification-of-healthy-life-years-lost-in-europe as referenced by Professor G Wittert in Exhibit 56 NHMRC Draft Information Paper: Evidence on Wind Farms and Human Health, “Expert Review: Comments in full”, National Health and Medical Research Council, February 2015, Appendix 8; and Exhibit 4, T299/6308, Reference No. 40, WHO “Burden of disease from environmental noise”. Bonn: World Health Organization European Centre for Environment and Health, 2011. Available from: http://www.euro.who.int/__data/assets/pdf_file/0008/136466/e94888.pdf.)
- There is an established association between WTN annoyance and adverse health effects (eg. this was established by the Health Canada study);
- There is an established association between noise annoyance and some diseases, including hypertension and cardiovascular disease, possibly mediated in part by disturbed sleep and/or psychological stress/distress; (This is also supported by much of the documentary material before us, including a Victorian Department of Health publication entitled “Wind farms, sound and health”, Technical Information, at 7. How can noise affect our health? – Exhibit A4, T297/6232.)
- There are as yet no comprehensive studies which have combined objective health measurements with actual sound measurements in order to determine for a given population the relationships between the sound emissions of wind turbines, annoyance, and adverse health outcomes. Indeed there is as yet no study which has given rise to a soundly based understanding of the degree to which particular types or levels of wind turbine emissions give rise to annoyance, or what levels or types of emissions are associated with what level of annoyance in the population. Because it relied on calculated rather than actual sound measurements, and was limited to the A and C-weighted systems, the Health Canada study did not do this.
Paragraphs 467–470, File Number 2015/4289
Decision and Reasons for Decision
Administrative Appeals Tribunal, Adelaide
Taxation & Commercial Division
Re Waubra Foundation (Applicant) and Commissioner of Australian Charities and Not-for-profits Commission (Respondent)
The Honourable Justice White, Deputy President
Deputy President K Bean
4 December 2017
Author: Laurie, Sarah
Requested by Stockyard Hill Landscape Guardians –
I have used my previous clinical experience as a rural General Practitioner to interview individuals reporting adverse health effects from a range of industrial noise sources, and then used the information obtained together with my clinical insights and experience, to collaborate with trained health and acoustics professionals in Australia and internationally to plan and implement new multidisciplinary research methodologies and develop new acoustic instrumentation, to facilitate accurate measurement and recording of acoustic exposures, and concurrent physiological data (sleep and heart rate), where people are reporting adverse impacts with exposure to industrial noise sources.
The aim of this work is to identify the precise acoustic triggers for the reported symptoms, including particularly the triggering of the acoustic startle reflex that underpins much of the reported illness, especially when the acoustic startle reflex is repeatedly triggered during sleep, resulting in chronic sleep deprivation which worsens with progressive low frequency noise sensitization.
The acoustic exposures have been in residential as well as occupational settings, at open cut and underground coal mines, coal, gas and wind power generators, and other noise sources such as CSG field compressors and urban data storage centres.
International collaboration has occurred with experts such as Dr Paul Schomer, immediate past Director of Acoustical Standards in the USA. At Dr Schomer’s invitation, I was asked to join the international working group on Wind Turbine Noise in May 2015 in Pittsburgh, USA, and to present at the American Society of Acoustics conference [http://waubrafoundation.org.au/resources/acoustical-society-america-conference-2015-waubra-foundationpresentation- notes/]. I work closely with independent Acousticians, Psychoacousticians and others both in Australia and internationally who are leading the world in investigation of industrial noise inside impacted residents homes, together with the collection of concurrent physiological data.
I have collaborated with others in the development of affordable dual channel broad spectrum acoustic soundscape recording units, in order to capture scientifically important data which is being missed if averaging and sampling techniques are used, or if infrasound and low frequency noise inside and outside homes is excluded from measurement and analysis as is the case with many existing sound level meters and regulatory requirements and standards. …
I note that experienced Danish Professor of Acoustics Henrik Møller and his colleague Christian Pedersen coauthored a peer reviewed paper published in May 2011 which demonstrated (using wind industry data) that as power generation capacity increased (which can be achieved via increased tower height and blade length), so too did the proportion of low frequency noise emitted also increase. They noted that therefore it was predictable that “annoyance” for the neighbours would also increase. [https://www.wind-watch.org/documents/low-frequency-noise-from-large-wind-turbines-2/]
This increase in “annoyance” including sleep disturbance is precisely what has happened to rural residents in Victoria living near the Macarthur Wind Power Development, documented in a preliminary Community Noise Impact Survey at Macarthur Wind Power Development in 2013 by Mrs Anne Schafer, and also in numerous public submissions and oral Testimony to Federal Senate Inquiries and legal proceedings. …
The acoustic startle reflex is epitomized by the description given by residents living near various sources of industrial noise, including particularly wind turbines, of “waking up at night suddenly in an anxious frightened panicked state”. These episodes correlate directly with wind direction and weather conditions, with the worst experiences being when they are downwind, with either heavy cloud cover or temperature inversion conditions.
The acoustic startle reflex is a simple neural reflex, which is extremely rapid. The neural pathway does not travel to the cortex or thinking part of the brain, but rather goes from the peripheral sensory receptors directly to the primitive part of the brain in the brainstem, and then straight to the heart where one of the effects of the sympathetic nervous system activation is to increase heart rate. In layman’s terms, this is known as the “fight flight” response, and is the core of the physiological stress response.
By its very nature (simple and very rapid neural reflex), the acoustic startle reflex cannot be induced by “suggestion” so the assertion by wind industry advocates and some acousticians that a “nocebo” effect is responsible for the annoyance/physiological stress reactions or sleep disturbance episodes is not supported by the scientific evidence in animal studies.
Nor is the “nocebo effect” excuse supported by detailed clinical history taking directly from noise affected people by experienced medical practitioners. When such medical histories are gathered, clinical diagnoses of Environmental Sleep Disorder and other conditions including Wind Turbine Syndrome become clear, as do the serious adverse health consequences of the diagnosis of Environmental Sleep Disorder if the excessive noise exposure and sleep deprivation continue.
The effects of chronic sleep deprivation have been summarized in the 2009 World Health Organisation’s Night Noise Guidelines for Europe [https://www.wind-watch.org/documents/night-noise-guidelines-for-europe/], and include serious physical and mental health consequences. …
Two important Victorian wind turbine noise investigations since 2010 are the acoustic and health study conducted by Dr Bob Thorne at the Waubra and Cape Bridgewater Wind Power Developments [http://waubrafoundation.org.au/resources/thorne-r-victorian-wind-farm-review-updated-june-2014/], and the Pacific Hydro initiated and partly funded Cape Bridgewater Acoustic Investigation by Steven Cooper [https://www.wind-watch.org/documents/results-of-an-acoustic-testing-program-cape-bridgewater-wind-farm/]. The existence of repeated sleep disturbance was confirmed in both.
Both these wind power developments have been deemed to be compliant with their permit conditions and the NZ Standard. If they are in fact compliant, then it is clear that the NZ standard is allowing people to become chronically sleep deprived, and progressively sensitized to low frequency noise, both of which have serious adverse health sequelae for both physical and mental health.
Those who find the noise becomes unbearable, (as stated in the Victorian Health Department Technical report quoted from earlier), can become a serious suicide risk. The Waubra Foundation Administrator and Directors have direct experience and knowledge of the desperation of low frequency noise sensitized people, and I have personally prevented a number of suicides by responding rapidly, and locating local health providers in a timely fashion. My own experiences are supported by the data contained in Dr Bob Thorne’s study report referred to above, and by independent psychological assessment in some instances – these people are very unwell, physically and often mentally, and exhausted. Their psychological distress is further compounded by the lack of any action to alleviate their situation by responsible authorities at every level of government, and sometimes ignorance of their treating health professionals. …
30th January, 2017
Download original document: “Expert Witness Statement of Sarah Laurie, CEO, Waubra Foundation”
Author: Ludington, Thomas
On February 15, 2017, Plaintiff Tuscola Wind III, LLC, (“Tuscola”) filed a complaint naming the Almer Charter Township and that Township’s Board of Trustees as Defendants. Count One of the Complaint is the “Claim of Appeal.” Tuscola Wind’s claims arise out of Defendants’ denial of a Special Land Use Permit (“SLUP”) that would have permitted Tuscola Wind to construct the “Tuscola III Wind Energy Center” in Tuscola County, Michigan. Oral argument on the claim of appeal was held on October 5, 2017. For the following reasons, the Board of Trustee’s denial of the SLUP will be affirmed. …
The Zoning Ordinance addresses noise emissions from the turbines:
Noise emissions from the operations of a [Wind Energy Conversion System] shall not exceed forty-five (45) decibels on the dBA scale as measured at the nearest property line of a non-participating property owner or road. A baseline noise emission study of the proposed site and impact upon all areas within one mile of the proposed WECS location must be done (at the applicant’s cost) prior to any placement of a WECS and submitted to the Township. The applicant must also provide estimated noise levels to property lines at the time of a Special Use application.
Similarly, “[a]ll efforts shall be made not to affect any resident with any strobe effect or shadow flicker.” And the Zoning Ordinance provides the general admonishment that “[t]he wind energy conversion system shall not be unreasonably injurious to the public health and safety or to the health and safety of occupants of nearby properties.”
On September 23, 2016, Tuscola submitted its SLUP application to the Almer Township Planning Commission. …
To assist in its consideration of the application, the Township retained the Spicer Group, Inc., an engineering consulting firm. On October 25, 2016, the Spicer Group sent Tuscola an email requesting clarification and/or additional information regarding several aspects of the application. Three of the Spicer Group’s concerns are relevant. First, Spicer questioned several aspects of the sound emissions report, including how Tuscola chose the 1-hour LEQ as the proper metric. The Spicer Group further asked when Tuscola would be submitting an economic impact study, indicating concern that “the property value information provided on pages 10 through 11 of the TW3 SUP Application is not local and not pertinent to Almer Township.” Finally, the Spicer Group indicated that Tuscola’s proposal to place the power lines above the ground did not conform with the Zoning Ordinance requirement that all electrical connection systems and lines from a wind farm be placed underground. The Spicer Group acknowledged that the Planning Commission has discretion to waive that requirement, but suggested that Tuscola had not yet sought that waiver.
Tuscola responded to the Spicer Group’s inquiries on October 31, 2016. …
On November 8, 2016, the Spicer Group submitted a report to the Planning Commission analyzing Tuscola’s SLUP application. In the report, the Spicer Group concluded that Tuscola had complied with many, indeed most, of the Zoning Ordinance’s requirements. But the Spicer Group did identify a number of outstanding issues. …
On November 10, 2016, the Planning Commission held a public hearing to discuss the SLUP application. At the hearing, a representative from Tuscola discussed the project. … For the rest of the hearing, members of the community expressed their opinions on the proposals. Most speakers communicated objections to various aspects of the application (if not the project as a whole), but some expressed support for the wind energy project. Two sound engineers testified at the hearing. The first engineer, Rick James, is an employee of e-Coustic Solutions and was hired by concerned citizens. First, Mr. James opined that Tuscola’s noise emissions report likely understated the dBA level at several property lines. Second, Mr. James challenged Tuscola’s assertion that the noise emissions provision in the Zoning Ordinance allowed for an averaged sound level measurement, as opposed to a maximum level: “[T]he words are very explicit, they say, ‘Shall not exceed 45 dBA.’ When you read law you can’t read into it when the words aren’t there. It doesn’t say 45 dBA Leq, it does not say 45 dBA average, it says not exceed 45 dBA.” Id. at 109. Ms. Kerrie Standlee, the principle engineer for Acoustics by Design [Acoustics by Design was retained by the Township to assist in reviewing the application], also testified. Ms. Standlee concurred with Mr. James’s interpretation of the ordinance:
[T]he limit is stated in there that the level shall not exceed 45 dBA. It doesn’t give any descriptor, is it supposed to be the Lmax or – and as was mentioned, an L90 or an L10 at 50, an Leq, it doesn’t specify. Mr. James is correct in that when something is not specified, you take the normal interpretation, which would be Lmax. I’m with – I’m on the City of Portland Noise Review Board and we have an Lmax standard. It’s not specified as the Lmax it’s just – like yours it says it shall not exceed this level. And that is an absolute level, not – not an equivalent energy level.
Ultimately, the Planning Commission concluded that additional information was necessary before the SLUP application could be ruled upon. …
The day after the public hearing, Tuscola sent the Planning Commission a response addressing several of the concerns raised by the Spicer Group. …
Several days later, Tuscola sent another communication to the Planning Commission further addressing several of the issues identified by the Spicer Group. …
On November 17, 2016, the Almer Township Board approved a “Wind Energy Conversion Systems Moratorium Ordinance.” … Thus, the Board enacted a
moratorium, on a temporary basis, on the establishment, placement, construction, enlargement, and/or erection of Wind Energy Conversion Systems within the Township and on the issuance of any and all permits, licenses or approvals for any property subject to the Township’s Zoning Ordinance for the establishment or use of Wind Energy Conversion Systems. … [T]his Ordinance shall apply to any applications pending before any Township board or commission, including the Township Board, Planning Commission or Zoning Board of Appeals.
… On December 7, 2016, the Planning Commission held a second public hearing. … In large part, the Tuscola representative summarized the company’s November 15, 2016, submission to the Planning Commission. … The Planning Commission discussed the outstanding issues, and … [t]he Township’s attorney summarized the requested information as follows: “[Y]ou want to request information from NextEra on property values, noise, sound models based on Lmax and if there is the justification you just referenced regarding the cost estimate on the decommissioning of the individual towers.”
On December 22, 2016, Tuscola provided the supplemental information which the Planning Commission had requested. … On December 29, 2016, the Spicer Group responded to Tuscola’s supplemental memorandum. … On January 3, 2017, Tuscola’s representative sent a letter to the Planning Commission addressing the Spicer Group’s memorandum. …
On January 4, 2017, the Planning Commission held its third and final public hearing on the SLUP application. … Planning Commission member Daniels moved to recommend denial of the SLUP application. … He asserted that “[t]he ordinance does not allow for the averaging varying levels of sound. We, as a Planning Commission, are not here to rewrite the ordinance, but to enforce the ordinance as written. And it mandates a maximum sound level of 45 decibels.” …
Ultimately, the Planning Commission voted 3 to 1 to recommend denial of the SLUP application (two members did not vote because of a conflict of interest).
On January 17, 2017, the Almer Township Board held a public meeting to review the Planning Commission’s recommendation regarding the SLUP application. … The Board simultaneously issued a Resolution articulating its rationale for denying the SLUP application. In the Resolution, the Board identified five areas in which the SLUP application did not comply with the Zoning Ordinance. … Finally, the Board noted that it had previously approved a moratorium on wind energy projects in the Township and thus was precluded from approving the SLUP application even if it had complied with the Zoning Ordinance. …
Tuscola argues each of the Board’s purported reasons for denying the SLUP application were contrary to Michigan law and not supported by substantial evidence. Tuscola further argues that the Board did not have the authority to enact a moratorium on wind energy projects in the did not appeal from a final decision of the Township. For its part, the Township argues that Tuscola’s appeal is not ripe because the company did not appeal from a final decision of the Township. Next, the Township argues that each of the Board’s expressed reasons for denying the SLUP application were reasonable and permitted by law. And, finally, the Township argues that the temporary moratorium on wind energy project permits was valid. …
A. The denial of the SLUP application is ripe for review.
(Although the moratorium on wind energy projects was enacted after Tuscola’s SLUP application was submitted (but before it was rejected), the Planning Commission and Township Board proceeded to consider the SLUP application on its merits. At most, the Township Board relied upon the moratorium as an alternative (and secondary) basis for denying the SLUP application. Because the Board’s denial of the application was supported by substantial evidence and was not contrary to law, the legitimacy of the moratorium need not be resolved.)
B. Michigan Courts have repeatedly confirmed that courts should defer to municipal interpretations of zoning ordinances. … Thus, this Court does not sit in de novo review of the Zoning Ordinance provision regarding noise emission levels (assuming that the ordinance is ambiguous). Rather, the question is whether the Township Board’s interpretation of the ordinance was “reasonable.” … The “[s]hall not exceed” language in § 1522(C)(14) is facially indistinguishable from a Lmax standard. … Even if the Court were to conclude that § 1522(C)(14) is ambiguous regarding how to measure sound emissions (and not just ambiguous regarding the length of time over which to measure them), Tuscola’s argument still falls short. …
Tuscola’s final argument regarding § 1522(C)(14) is that the Township Board’s interpretation would result in exclusionary zoning,* which is prohibited by Michigan law. Specifically, Tuscola argues that “[u]sing an Lmax metric would make development of commercial wind energy in the Township impossible because a single wind turbine could not be sited within at least a half-mile of a nonparticipating line.” This conclusory argument has no merit. Under Michigan, “a zoning ordinance may not totally exclude a land use where (1) there is a demonstrated need for that land use in the township or surrounding area, (2) the use is appropriate for the location, and (3) the use is lawful.” Even assuming that the Township Board’s interpretation of the ordinance completely excludes wind energy development in the Township, Tuscola cannot prevail.
(*And that assumption is questionable. Tuscola asserts that application of an Lmax standard would prevent the company from siting a turbine within 2,775 feet from a nonparticipating property line. See Dec. 22, 2016, Supp. Info. at 1. Thus, Tuscola would be forced to reach agreements with a significantly larger number of property owners in order to build the turbines as currently planned. But it seems plausible that Tuscola might be able to enter into more land use contracts with property owners and/or site a fewer number of turbines in Almer Township. Both of those alternatives would undoubtedly impact the profitability of the project, but Tuscola has not demonstrated that it is entitled to deferential or economically favorable conditions. Perhaps application of an Lmax standard creates such an economic hardship that it constitutes de facto exclusionary zoning. But Tuscola’s conclusory briefing on this point falls far short of showing that to be true.)
Tuscola has made no attempt to show that there is a “demonstrated public need” for wind turbines in Almer Township, and the Court cannot comprehend why such a need would exist. “Presumably any entrepreneur seeking to use land for a particular purpose does so because of its perception that a demand exists for that use. To equate such a self-serving demand analysis with the ‘demonstrated need’ required by the statute would render that language mere surplusage or nugatory, in contravention of usual principles of construction.” Outdoor Sys., Inc. v. City of Clawson. Further, “the public need must be more than mere convenience to the residents of the community.” DF Land Dev., LLC v. Charter Twp. of Ann Arbor.
Wind turbines produce energy, which is, of course, needed by the Almer Township community. But Tuscola cannot reasonably argue that the Township will have inadequate access to energy absent the wind energy project. The Michigan Court of Appeals has explained that, to show demonstrated public need, the plaintiff must do more than show that “residents of the township would benefit from” the excluded use. Tuscola has not carried that burden here.
C. The Township Board reasonably interpreted its Zoning Ordinance and, under that reasonable interpretation, Tuscola was undisputedly in noncompliance with the Zoning Ordinance. Because at least one of the bases on which the Board premised its denial was lawful, the remaining four bases need not be examined. The Township Board’s denial will be affirmed.
Accordingly, it is ORDERED that Defendant Almer Township Board’s denial of Plaintiff Tuscola Wind III, LLC’s, SLUP application is AFFIRMED.
Dated: November 3, 2017
THOMAS L. LUDINGTON
United States District Judge
Case No. 17-cv-10497
United States District Court
Eastern District of Michigan
Download original document: “Tuscola Wind III, LLC,, Plaintiffs, v Almer Charter Township, et al, Defendants”