Resource Documents: Michigan (19 items)
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Author: Monitor Township, Bay County, Mich.
Section 3.48 [excerpts]
This Ordinance is intended to protect the health, safety and welfare of the residents of the Township and to encourage the safe, effective, efficient and orderly development and operation of wind energy resources in the Township while preserving and protecting the character and the stability of residential, agricultural, recreational, commercial, industrial and other areas within the Township.
Adverse Sound Character: Sound that causes building rattle, is impulsive, tonal, or has low-frequency bass rumble.
Ambient is defined as the sound pressure level exceeded 90% of the time over a 96-hour measurement period with daytime/nighttime division.
Lmax (LAmax or LCmax): The maximum dB(A) or dB(C) sound level measured using the “fast response” setting of the sound meter (equivalent to 0.125 second exponential averaging time).
L10 is the noise level exceeded for 10% of the time of the measurement duration. This is often used to give an indication of the upper limit of fluctuating noise, such as that from road traffic.
L90 is the noise level exceeded for 90% of the time of the measurement duration and is commonly used to determine ambient or background noise level.
Utility-Scale (also known as Commercial and Large-Scale) Wind Energy Conversion System: A wind energy conversion system greater than sixty (60) feet in total height (tip height) intended to generate power from wind primarily to supplement the greater electric utility grid. Utility-Scale WECS includes accessory uses such as, but not limited to, SCADA towers, anemometers, or electric substations.
Review Standards for Commercial Wind Energy Conversion Systems (WECS).
Height and Scenic Vista. The maximum height of any Utility-Scale WECS is 500 feet. The height of a WECS is measured from the lowest natural grade at the base of the pole to the highest point of the WECS when a blade is in its vertical orientation.
Abandonment. Any WECS that is not used to produce energy for a period of six (6) successive months or longer shall be deemed to be abandoned and shall be promptly dismantled and removed from the property in accordance with the decommissioning regulations of this ordinance, unless the applicant receives a written extension of that period from the Township Board in a case involving an extended repair schedule for good cause.
Vibrations. Wind turbines shall not create vibrations that are detectable by humans on non-participating properties.
Safety Manual. The Applicant must provide an unredacted copy of the manufacturer’s safety manual for each model of turbine without distribution restraints to be kept at the Township Hall and other locations deemed necessary by Planning Commission or local first responders. The Manual should include standard details for an industrial site such as materials, chemicals, fire, access, safe distances during WECS failure, processes in emergencies, etc.
Noise. Applicant shall provide an initial sound modeling report and, within six (6) months of commencing operation of the WECS, a postconstruction report for the project with a schedule and documentation …
Setback. The minimum setback from any property line of a Non- Participating Landowner or any road right-of-way shall be no less than 2000 feet. The minimum setback from any property line of a Participating Landowner shall be no less than 1640 feet.
Communication Interference. Each WECS and Testing Facilities shall be designed, constructed and operated so as not to cause radio and television or other communication interference. In the event that verified interference is experienced and confirmed by a licensed engineer, the Applicant must produce confirmation that said interference had been resolved to residents! satisfaction within ninety (90) days of receipt of the complaint. Any such complaints shall follow the process stated in Complaint Resolution sections.
Infrastructure Wiring. All electrical connection systems and lines from the WECS to the electrical grid connection shall be located and maintained underground. …
Road Damage. The Contractor shall inform the Bay County Road Commission (BCRC) of all the roads they propose to use as haul routes to each construction site. This shall be done prior to beginning any construction at any site. The identified haul routes shall be videotaped by either the BCRC or Contractor prior to the beginning of construction and after construction has been completed. Upon review of the before and after videos and physical review of each roadway, the BCRC shall determine what damage, if any, was caused by the Contractor! s vehicles. If it is determined damage to the road was caused by the Contractor! s vehicles or activities, the Contractor shall work with the BCRC to determine the extent of the roadway repair needed. This may include, but is not limited to, crush and shaping the roadway, placing additional aggregate, placing a new chip seal surface (two courses minimum), placing a new asphalt surface or a combination thereof. In all cases, the roadway shall be constructed in accordance with the BCRC! s current specifications and requirements associated with the type of roadway to be installed. All costs for said work shall be the responsibility of the Contractor.
Shadow Flicker. No amount of Shadow Flicker may fall on or in a Non-Participating Parcel. … Participant parcels shall not exceed 30 hours of shadow flicker per
Strobe Effect. No amount of Strobe Effect may fall on or in any parcel. Under no circumstances, shall a WECS or Testing Facility produce strobe effect on properties.
Voltage. The Applicant shall be responsible for compensation to residents for property, including livestock, health or other damage by stray voltage caused by a WECS. The Applicant shall demonstrate WECS prohibits stray voltage, surge voltage, and power from entering ground.
Regulation of WECS Commercial and Industrial Noise. To preserve quality of life, peace, and tranquility, and protect the natural quiet of the environment. This ordinance establishes the acoustic baseline, background sound levels for project design purposes, and limits the maximum noise level emissions for commercial and industrial developments. Residents shall be protected from exposure to noise emitted from commercial and industrial development by regulating said noise.
Non-Compliance with Standards. The Township Board reserves the right to require WECS Applicant to shut down any WECS unit that does not meet ordinance requirements until such WECS unit meets ordinance requirements or is removed.
a) No WECS shall generate or permit to be generated audible noise from commercial or industrial permitted facilities that exceeds 45 dBA (Lmax) or 55 dBC (Lmax) (dBC-to-dBA ratio of 10 dB per ANSI standard S12.9 Part 4 Annex D) for any duration, at a property line or any point within any property.
b) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any acoustic, vibratory, or barometric oscillations in the frequency range of 0.1 to 1 Hz that is detectable at any time and for any duration by confirmed human sensation or exceeds a sound pressure level from 0.1 to 20 Hz of 50 dB(unweighted) re 20 µPA or exceeds an RMS acceleration level of 50 dB(unweighted) re 1 micro-g by instrumentation at a landowner’s property line or at any point within a landowner’s property.
c) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any vibration in the low-frequency range of 0.1 to 20 Hz, including the 1, 2, 4, 8, and 16 Hertz octave bands that is perceivable by human sensation or exceeds an rms acceleration level of 50 dB(unweighted) re 1 micro-g at any time and for any duration either due to impulsive or periodic excitation of structure or any other mechanism at a landowner’s property line or at any point within landowner’s property.
d) A noise level measurement made in accordance with methods in section “Noise Measurement and Compliance” that is higher than 45 dBA (Lmax) or 55 dBC (Lmax), adjusted for the penalty assessed for a tonal noise condition, shall constitute prima facie evidence of a nuisance.
e) An acoustic, vibratory or barometric measurement documenting oscillations associated to commercial or industrial permitted facilities with levels exceeding the noise limits shall constitute prima facie evidence of a nuisance.
f) All commercial and industrial activity shall comply with limits and restrictions anywhere at any time on another property.
g) Leq 1-sec shall be used for all measurements and modeling.
Noise Measurement and Compliance. …
Wind Energy Conversion System (WECS) Site Plan Review Procedure. …
Economic Impact. …
—Adopted March 25, 2019
Brian R. Zelenak, Manager, Regulatory Administration, Xcel Energy, February 8, 2011 – re: Nobles Wind Energy Project, Minnesota, 1.5-MW turbines. [download]
A conservative estimate for a decommissioning expense is approximately four-hundred forty-five thousand dollars ($445,000) per turbine (2009 dollars).*
*Includes allowance for salvage value and based on total dismantling cost estimate for the project of 8.7% of the total plant balance of $510,965,406, equaling an estimated dismantling cost [of] $44.5 million or $445,000 per turbine. [NWW note: The Nobles project consists of 134 1.5-MW turbines, not 100, which would make the assumed 8.7% decommissioning cost $332,000 per turbine (2009 dollars).]
[$445,000 in 2009 is equivalent to $533,000 in 2019, $332,000 to $397,000.]
Wenck Associates, April 2017 – re: Palmer’s Creek Wind Farm, Minnesota, 2.5-MW turbines. [download]
The estimated cost to decommission Palmer’s Creek Wind Farm was provided by Fagen, Inc., construction contractor, in a letter dated November 16, 2016. The estimate is considered to be the current dollar value (at time of approval) of salvage value and removal costs. The estimated salvage value of each turbine will be based upon the worst-case scenario assuming the only salvage value of the turbine is from scrapping the steel. The estimate was based upon the total weight of one turbine, which is 275 tons consisting primarily of steel. Because it does not separate the scrap value of all the constituent materials, the estimate is very conservative. Also, it is highly likely that there would be opportunities for re-sale for reuse of all or some of the turbines or turbine components. Based on the current estimate, the cost of decommissioning is $7,385,822 with a potential scrap return value of $445,500 [net cost of $385,573 per turbine, $403,881 in 2019 dollars].
Henry Blattner, Senior Estimator, Blattner Energy, to Ryan Pumford, Nextera Energy, 2017 – re: Tuscola Wind III, Michigan, 2-MW turbines. [download]
To mobilize a crew and equipment, take down a GE wind turbine and haul off site the cost would be $675,000.00. Assuming a salvage value of $150 per ton and weight of 188 tons for the steel in the turbine and tower we [would] be able to reduce this cost by $28,200. The total price minus the salvaged steel would be $646,800.00.
Author: Pichan, Stave
Do you hear the sound keeps my kids awake
In fields where peace used to reign?
Notice the horizon, the obstructed view
All I see are those blades
The turning and whirling, the deafening sound
Killin’ the birds, spoiling the ground around me
The shadow it flickers on the walls and the pictures
An Iowa farmer has been taken by charmers
Maybe it’s time to put up a sign
I’m an just Iowa farmer who was taken by charmers
—Steve Pichan 2019
Singer/songwriter Steve Pichan and his wife often travel through mid-Michigan where massive windfarms have sprouted over the past few years. It wasn’t long ago when the farms were in limited concentrated areas, but with each trip to the North Country, Steve noticed more and more turbines, first dotting the skyline and then suddenly polluting the once pristine horizons.
That observation got Pichan to wondering whether or not there were farmers who weren’t thrilled with the towering giants right behind barns and ominously rising above homes and fields. A little internet research was all it took for him to learn what farmers and others already knew; wind turbines aren’t all they’re cracked up to be. Common problems with them involves the thousands of bats and eagles killed by the rotating blades and an effect known as “shadow flicker”, caused when rotating wind turbine blades cast shadows through constrained openings such as windows and neighboring properties. Occasionally turbines catch on fire and, due to the average height, most fire departments aren’t able to properly extinguish. Property values also take hits when windfarms are nearby. Such examples are just a few of the many complaints Pichan discovered.
So, off to the northern Michigan with guitar in the trunk, Pichan set off to put his thoughts and discoveries into song, one empathizing with the plight of a fictitious farmer in Iowa who lives under the shade of multiple turbines. The farmer knows he got a bum rap when he sold out land to energy corporations that could care less about his scarred land and access roads that once provided fertile soil for profitable crops.
“Iowa Farmer” was written, according to Pichan, to shine a light on the windfarm debacle through art and expose this concerning issue often ignored by media and those profiting from the destruction of once peaceful farms.
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”