The complaint, filed Tuesday morning, alleges Koehler did not follow the proper procedure under the state’s county zoning act in determining petitions submitted by the group were inadequate.
Koehler said she determined the petitions were inadequate due to the language on the face of the documents.
“The legal reason for the inadequacy is the language on the face of the petitions does not comply with (the state’s county zoning act), which states, in part, that the petition must request the submission of the zoning ordinance, or a part of the zoning ordinance, to the electors for their approval or rejection," Koehler wrote in her decision. "The petitions submitted request a ‘review’ of the zoning ordinance and do not request the submission of the zoning ordinance to the voters for their approval or rejection.”
The complaint filed Tuesday also alleges the clerk’s only duty is to validate the number of signatures on the petitions.
“The obligation to review the petitions is upon the County Clerk,” the complaint reads. “The clerk, upon receipt of the petitions is to validate the signatures and, if the appropriate number of signatures are on the petitions, then the matter is submitted to the populace for a vote.”
In a notice of hearing filed with the complaint, attorneys for RSEP allege no one ever told petitioners there is a statute or law somewhere that states specifically what language must be included in the petition. They say it is only necessary to “submit language to put everyone on notice as to what is being requested. There is no question but that the county and everyone else involved knew exactly what the petitioners were seeking, a referendum on the ordinance in question.”
The state’s county zoning act reads, in part, “a petition … may be filed with the county clerk requesting the submission of the zoning ordinance or a part of the zoning ordinance to the electors residing in that portion of the county outside the limits of cities and villages for their approval or rejection.” The language on the petitions read, “"We, the undersigned, qualified and registered electors, residents in the County of Huron, State of Michigan, respectively petition for a review of zoning ordinance amendment ZA 2005-01."
Huron County Prosecutor Mark Gaertner, after Koehler decided the petitions were inadequate, explained the purpose of a referendum election is to approve or reject the prior action of a legislative body. Gaertner agreed with Koehler’s decision, and said the petitions were “defective on their face” because they requested a review of the ordinance and not an up or down vote. Therefore, Koehler could not order a referendum on the matter because one was not requested by the petitions.
Angie Weber, spokesperson for RSEP, said in a press release after the decision was made that Koehler understood the intent of the petitions, even if the language was unclear.
"Both the clerk’s office and the prosecuting attorney’s office were fully aware that our intent was for the text of the zoning amendment regarding the development of wind farms throughout Huron County be placed before the citizens for a vote," Weber said.
Before making her decision regarding the adequacy of the petitions, Koehler was presented an opinion arguing against the adequacy of the petitions by Noble Environmental Power. She then decided it would be fair to ask both sides to submit any information they thought would be relevant and helpful to her in making her decision. The complaint filed Tuesday alleges these actions constitute a “quasi-judicial” proceeding, and overstep the duties of the county clerk. The complaint states there is no provision in the law for the county clerk asking for the additional materials, or using those materials to help guide her decision.
The complaint alleges the county and Koehler have “interfered with the plaintiffs’ real property contractual agreements, interfered with the use and enjoyment of the residents’ property without representation and the right to vote” and caused a destruction in property values to the effected landowners. Therefore, RSEP is requesting the court issue an injunction to stop the county from issuing any building permits, preclude the construction of any wind turbines, and order the county’s wind ordinance suspended until a referendum is conducted.
Paul Pedersen, the attorney representing RSEP, did not return a telephone call seeking comment prior to press time this morning.
Stephen J. Allen, the county’s corporation counsel, said Tuesday evening he had not yet had a chance to fully review the complaint, but that it appeared to him RSEP was indeed seeking an injunction against the issuance of building permits, and asking the court to order Koehler to conduct a referendum election on the ordinance.
“From what I know of the facts and the law, and Peggy Koehler’s function and the decision she made,” Allen said, “my opinion is she was correct in her decision, and I expect the court will uphold that decision.”
The matter is scheduled to be heard in Huron County Circuit Court before Judge M. Richard Knoblock at 10 a.m. Dec. 7.
Meanwhile, Noble Environmental Power will host a groundbreaking ceremony for its Noble Thumb Windpark at 11:30 a.m. Friday at a location about 2 miles west of Ubly Heights Golf & Country Club.