Consumers Energy’s request for a stay against the Mason County Zoning Board of Appeals was denied Monday in 51st Circuit Court.
The company today said it will provide that plan by Friday, as required. (Story on page A7.)
The utility had sought to put off a requirement for a sound mitigation plan until it could argue its full case in front of a judge.
The turbines at Lake Winds Energy Park were found to be producing noise in excess of a 45-decibel limit by an independent consultant last fall.
Judge Richard Cooper denied the request after listening to arguments Monday from Consumers’ attorney, Adam Smith, and Ron Reddick, representing Mason County.
Consumers had asked for the stay on the grounds that it was denied due process by not being given a notification that the planning commission was going to decide to ask the utility to produce a sound mitigation plan at a public meeting last fall.
The utility also asked Cooper to issue a stay on the grounds that requiring the utility to mitigate sound would cause irreparable harm to it and that it had a high likelihood of prevailing in a full court proceeding on the merits of the case.
Smith argued that the planning commission never heard information from Consumers Energy’s sound consultant.
Reddick countered that Consumers didn’t need special notification as the planning commission was a public body having public meetings specifically to hear results of its independent third-party sound study and while Consumers was in attendance, its representatives chose to sit mute through the process of the planning commission meetings when sound standards were discussed.
Cooper came down on Reddick’s (the county’s) side.
“As far as due process is concerned, I’ve already shared some thoughts on it,” Cooper said. “One has to look at the function of the planning commission and the planning commission. They have a responsibility to take a stand on, in this case, the requirement of the (Mason County Zoning) ordinance that the study be done by the neutral party. The planning commission then has a task to take a look at results of that study and determine that a mitigation plan needs to be implemented. It escapes me why Consumers would not have been more involved in being active at those planning commission sessions. It’s not unlike situations where someone says, ‘Let’s see what they do with it, and if we don’t like it, then we’ll challenge it.’ The remedy is the zoning board of appeals, and it strikes me that that is exactly the route that Consumers chose to take.
“That strikes me as not being a legitimate basis for saying there was a lack of due process because specific notice is not provided.”
Coooper said the ordinance sections dealing with wind turbines are clear and Consumers helped draft them.
“The ordinance is simple: One year after implementation, (sound) would be reviewed,” Cooper said. “If the planning commission accepts that responsibility and looks at results of independent testing, different entities would be able to appear at those sessions and give their input. If they do not, that doesn’t mean that due process was violated, it’s just the zoning process. The plaintiff today fails on the argument that there is a lack of due process.”
Cooper said he didn’t agree with Consumers’ argument of irreparable harm to the public. He said, to him, there were two types of public – Consumers and its reputation and perception on one hand and the individual landowners who made complaints about excessive noise from the wind farm.
“Under the first category, I don’t see any hurt to the public as to denying a stay if these towers are going to continue to function and provide electricity. Whether they do so at a more limited level or not remains to be seen, I don’t see that as a hurt to the public. It’s a matter of how this comes out at the end of the process, whether the 45 (decibel) reading has been complied with. Arguments today of what was addressed at board of appeals, did give Consumers a chance to have substantial input, therefore, again, the concept of the right to be heard, knowing this is your chance to challenge, the steps taken by the planning commission it was, from what appeared today, accomplished.”
Cooper added that in his research he found that perhaps 75 percent or more of the wind farms in operation were within 40-45 decibels as a sound limit and for Consumers to be at the upper end of the limit was already a benefit to the utility.
“If there is a lesser amount of electricity being produced even while (a sound mitigation plan is) being developed and we’re just under the general purpose of wind farm production, I don’t see that as a harm to the public,” Cooper said.
Another argument presented by Consumers and a requirement for issuing a stay is likelihood of prevailing on the merits of the case.
Cooper said he didn’t see how the portions of Riverton and Summit townships being discussed had significant, sustained ambient noise that would have put the wind turbines over the sound limits.
“I just don’t see where these areas along Hawley Road and Anthony Road, they don’t have anything that jumps out at me saying ‘We’ve got some kind of ambient noise problem that nobody has sufficiently considered,’” Cooper said.
Smith indicated during the hearing Monday that Consumers would produce a sound mitigation plan by Feb. 7 in the event the request for stay was denied.
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