Six years into his attempt to bring a $120 million wind-energy project to Clinton County, Tim Brown has investors, leased farmland and a special use permit, but he hasn’t built any turbines or found a buyer for the power he hopes to produce.
On Wednesday, his stalled project faces a hearing before Michigan Court of Appeals judges who could resolve the impasse.
If things break in Brown’s favor, the three judges – or at least two of them – might agree a Clinton County circuit judge got it right last year when he invalidated strict local ordinances enacted by three townships to limit the size and impact of the 39 turbines Brown intends to build.
“It remains a good and viable project,” Brown said. “We’re looking forward to the ruling. There’s nothing more we can do at this point. We remain hopeful.”
Amid that hope hangs the reality the appeals court might find fault with Judge Randy Tahvonen’s decision. His ruling against Bengal, Dallas and Essex townships could be overturned. Or the appeals judges could ask Tahvonen to reconsider and to apply some particular legal nuances they feel he overlooked in reaching his previous decision.
But even if Tahvonen’s ruling is upheld, the townships could appeal to the Michigan Supreme Court, bringing another delay from which Brown’s project is not likely to benefit.
“Maybe it will be dead in the water,” said Brown, who manages the Forest Hill Energy-Fowler Farms project from a Chicago office. “I hope not for the sake of the landowners and all who have participated.”
Lebanon Township farmer Ken Wieber is a Clinton County landowner of a different stripe. Wieber’s outspoken opposition hasn’t waned as the project has wound its way through the regulatory process.
Wieber says he hopes the Court of Appeals will find in favor of the townships and their “police protective ordinances.”
“There is no support for it,” he said of Brown’s project. “We don’t need it for our economic future. It’ll help just a handful of farms.”
In recent years, Wieber has tracked reports of negative health consequences affecting people who live near wind farms in Michigan and beyond. He is convinced the whirling blades can create disruptive, low-frequency noise.
He cites studies that point to decibel thresholds at which noise goes from benign to disruptive or even debilitating. The townships’ ordinances limits noise to lower decibel levels than does the county’s zoning ordinance.
So far, the case has turned on different interpretations of the state law controlling local zoning.
“What we want the court to tell us is that townships have the authority to adopt ordinances to regulate wind-energy systems even if there is a county zoning ordinance that also does that,” said Okemos lawyer Bill Fahey, who represents all three of the townships.
That’s where Tahvonen drew the line.
“There’s no way, in my judgment, that a reasonable person can read the county ordinance, read the township ordinance, and not come to the conclusion that the township ordinance is another bite as the zoning apple…” Tahvonen said during a hearing last July.
“The townships’ ordinances are more restrictive zoning ordinances masquerading as police power regulations,” Tahvonen wrote in his Oct. 28 order favoring Brown’s project.
County zoning permits wind towers to be 450 feet tall. The project’s turbines are designed to be 426 feet tall at the top of their blade rotations. Dallas and Essex townships put a 380-foot limit on tower height. Bengal’s ordinance permits them to be 400 feet tall.
Kyle Konwinski, a Grand Rapids lawyer representing the project, said Tahvonen’s ruling should be upheld in part because the townships chose not to create local zoning ordinances when they could have. Because they did not, the county’s zoning ordinance rules.
If Tahvonen’s decision is upheld, the relationship between counties, municipalities and townships will change dramatically, Wieber said.
The Michigan Townships Association agrees, submitting its own brief even though it is not a party to the lawsuit.
“At issue is a new and erroneous statutory interpretation … upheld by the Clinton County Circuit Court (Tahvonen) completely eviscerating a township’s regulatory authority” under state law, the MTA said.
The ordinances passed by the townships are within their powers to enact measures in support of public health, safety and general welfare of people and property, MTA said.
Their police ordinance authority “is separate and distinct from county and township zoning ordinance authority” in the state law that enables local zoning, MTA said.
St. Johns farmer Bob Boettger has supported the project since he was asked five years ago if he was willing to lease his land to host turbines. Eight of the project’s 39 wind towers are to be placed on land he farms. From his perspective, the townships are using his tax dollars to fight something from which he would benefit.
“It’s been five years since I joined up and I surely never thought this would drag out this long,” he said. “But we want to do it right way and this is the path is takes.”
Brown said the uncertainty that has shadowed his project is not conducive to economic development in Michigan.
“It doesn’t bode well for a county if townships can undermine the planning and zoning processes that some people may not like,” he said. “From an economic development and general process point of view, resolving this case is important.”
Clinton County wind-energy project timeline2008
March 21: Clinton County resident Steve Arwood registers Forest Hill LLC with the state of Michigan
Sept. 10, 11: Arwood receives permission from the Bengal Township Board and the Clinton County Planning Commission to erect a temporary meteorological tower to measure wind
Oct. 31: Chicago attorney Jay Mittelstead Jr. registers Forest Hill Energy-Fowler Farms LLC with the state of Michigan and lists Arwood as the registered agent
November: The meteorological tower begins collecting data; FHE begins leasing land on which to develop a wind-energy project
April 27: Clinton County commissioners pass a wind energy ordinance as part of the county zoning ordinance
March: Tim Brown of Chicago takes over management of the wind-energy project from Arwood
July 26: Commissioners impose a moratorium on issuing permits, licenses or approvals for wind energy systems
Oct. 25: Commissioners pass a revised wind energy ordinance that addressed wind turbine height, noise, setbacks from residential structures and shadow flicker; FHE then reconfigures its project to meet the new requirements
June 18: FHE applies to the County Planning Commission for a special-use permit to build a utility-scale wind-energy project on leased land in the townships of Dallas, Essex and Bengal
Sept. 11: Dallas Township Board passes an ordinance more restrictive than the county’s wind energy ordinance
Oct. 17: Essex Township Board passes an ordinance more restrictive than the county’s wind energy ordinance
Nov. 29: Bengal Township Board passes an ordinance more restrictive than the county’s wind energy ordinance
Jan. 10: Planning Commission recommends approval of the permit
Jan. 29: Commissioners approve the special-use permit thaw allows FHE to install 39 turbines each up to 426 feet tall and set back from residential structures by at least 1,600 feet
April 8: FHE files a lawsuit to prevent Essex, Dallas and Bengal townships from enforcing special ordinances that restrict turbines’ height, noise, setbacks and shadow flicker beyond the limits specified in the county’s zoning ordinance
July 30: Ruling from the bench, Clinton County Circuit Judge Randy Tahvonen invalidates the wind-turbine restrictions enacted by the three townships, saying they lack the power to license or otherwise regulate wind energy systems without adopting their own zoning ordinances.
Oct. 28: Tahvonen issues his opinion and order
Nov. 18: The townships appeal Tahvonen’s decision