BAD AXE – The future of zoning in Brookfield Township remains to be seen, but NextEra’s Pheasant Run Wind Energy Project can move forward.
Huron County Circuit Court Judge M. Richard Knoblock dissolved a temporary restraining order against Huron County prohibiting the county from zoning Brookfield Township and decided against an injunction Tuesday morning.
A hearing is scheduled to take place 10 a.m. Sept. 27 to determine whether the county or township will control Brookfield zoning.
Tuesday’s proceeding stemmed from a late-April lawsuit filed by the plaintiff, Brookfield Township Clerk Michael Lorencz, against the township and Huron County, claiming the county does not have the authority to oversee the township’s zoning matters.
“By allowing the Huron County to zone Brookfield Township, the plaintiff (Michael Lorencz) and the other electors of Brookfield Township are being denied their right to zone and make decisions about zoning at (the) local level,” states the lawsuit.
In response to the lawsuit, Knoblock initially approved a restraining order prohibiting the county from zoning Brookfield Township on May 1, before modifying it to allow the county to assist NextEra with its site plan review for the project on May 6.
In the meantime, NextEra attorney Jon M. Bylsma said that the company had been keeping the zoning ordinances of both municipalities in mind.
“We took the more strict parts of either and met it,” Bylsma said.
Project Manager Ryan Pumford told the Tribune that the company was happy to have a clearer path forward with the removal of the temporary restraining order, and that it was planning to seek approval for a site plan review at the Huron County Planning Commission on June 5.
The project is slated to have 88 turbines in portions of Brookfield, Fairhaven, Grant, Oliver, Sebewaing and Winsor townships,
A majority of Tuesday was spent with Lorencz’s lawyer, Brian Garner, trying to address Knoblock’s question of whether or not having an injunction would cause the township irreparable harm.
Garner echoed the lawsuit in saying that the township was being denied its right to make zoning decisions at the local level.
“It’s not about wind energy, it’s about local control,” Garner said.
On top of local control, the lawsuit claims Brookfield Township also should not be considered to be under the county’s zoning jurisdiction, because the zoning authority was not transferred by a vote of township residents.
In March 2012, the township board voted to repeal the township’s zoning ordinance. At the time, officials said there were not enough people to serve on the township planning commission and zoning board of appeals. Because it did not have complete boards, it was in violation of Michigan’s Zoning Enabling Act.
However, a petition was successfully filed requesting the township be able to vote on the repeal – and township residents voted Nov. 8 to overrule the township board’s decision, 119-118.
As a result, the vote to keep local zoning passed.
But, in January, the township board passed another resolution giving the county control over some township zoning. That resolution again cited the inability to fully staff the six-member and one township board representative to the planning commission.
“ … Brookfield Township is about to receive the largest investment in the township history (wind energy),” the Jan. 14 resolution states. “The township is not qualified nor prepared to accommodate the investors to proceed with the project. Therefore be it resolved: The Brookfield Township Board hereby repeals Brookfield Township Zoning Ordinance in entirety and adopts the Huron County zoning over Brookfield Township, effective immediately.”
Garner called that action a “clear side-step” around the people’s vote.
“Here the township is trying to get rid of zoning when the people want it,” Garner said.
The lawsuit claims there actually were a sufficient number of township citizens who were contacted and agreed to serve on the township planning commission prior to the board’s Jan. 14 vote.
“Those names were presented to the township board on Dec. 10, 2012, however, the township board refused to consider appointing those citizens and provide them the resources to serve as the township planning commission,” the lawsuit states.
It was a point Garner brought up again on Tuesday.
“This is an instance where beggars can’t be choosers,” Garner said.
Knoblock said that Lorencz’s points may have merit in the Sept. 27 hearing, but that they did not justify an injunction, or continuation of the temporary restraining order.
“That’s the issue,” Knoblock said. “Where is the irreparable harm? … And I still haven’t heard it.”