July 31, 2013
Michigan
Michigan
Judge invalidates townships’ wind-turbine restrictions; But attorneys agree what happens next is unclear
Written by Steven R. Reed | Lansing State Journal | Jul. 30, 2013 | www.lansingstatejournal.com
Written by Steven R. Reed | Lansing State Journal | Jul. 30, 2013 | www.lansingstatejournal.com
ST. JOHNS – A Clinton County judge Tuesday invalidated wind-turbine restrictions three townships enacted in response to plans by a Chicago developer to build a $120 million wind-energy project.
Circuit Court Judge Randy Tahvonen said the ordinances passed by the Dallas, Essex and Bengal township boards in 2012 were more like zoning rules than police protective ordinances, which townships are permitted to enact in the interest of health, safety and public welfare.
The judge said once the townships failed to take advantage of zoning powers available to them, zoning was reserved for the county. As proposed, the wind turbines satisfy the requirements of Clinton County’s new zoning ordinance regarding height, setbacks, noise and shadow flicker. Forest Hill Energy-Fowler Farms is proposing 39 towers reaching heights of 427 feet at the highest point of the blades’ rotation.
“The difficulty in this case is no matter how you look at the four requirements, there’s no way to not conclude the ordinances are another bite at the zoning apple,” Tahvonen said.
Bengal Township’s ordinance limits towers and blades to 400 feet in height. Essex and Dallas limited them to 380 feet.
Attorneys for the developer and for the townships said they weren’t sure what happens next because Tahvonen’s ruling was so narrow
The judge struck down the height, noise, shadow flicker and setback restrictions in the townships’ ordinances, but said, “No matter what happens, that’s not the end of the case.”
He indicated a trial would be scheduled to consider damages and the constitutionality of the ordinances.
As a result, Jon Bylsma, the Grand Rapids lawyer representing Forest Hill Energy-Fowler Farms, was more cautious than celebratory.
“I think the townships and Forest Hill Energy have to sort out what that (ruling) exactly means as it relates to this approved, special-use-permit project and any remaining parts of the township ordinances.” Bylsma said. “ … I think everybody in the courtroom today left with some uncertainty as to exactly what the future is going to look like.”
John McGraw, a Troy lawyer who spoke on behalf of the townships during Tuesday’s hearing, said the attorneys for both sides will try to determine “over the next few days” if the project can go forward and whether Forest Hill Energy would even have to apply for a license.
“Sometimes it takes a week to determine what’s really going to happen,” he said.
William Fahey, an Okemos lawyer who represents Dallas and Essex townships, said several options remained.
“We could get an application (for a wind-energy operating license) and grant an application, we could sit down and it (the lawsuit) could be settled, we could file an appeal and a court, on appeal, could reverse the judge” or the case could go to trial, he said.
Forest Hill Energy filed suit in April when it became clear the company’s efforts to satisfy county zoning requirements might be thwarted by the township ordinances.