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Court of Appeals to decide Clinton County wind dispute

Three Michigan Court of Appeals judges hearing arguments on a proposed $120 million Clinton County wind farm Wednesday gave opposing lawyers the chance to persuade them whether county zoning or more restrictive township ordinances govern the project.

After 40 minutes of legal wrangling, the judges complimented the lawyers and adjourned the hearing without revealing where they stood or when they might rule.

The county vs. townships question has been at the heart of the dispute that brought the renewable project to a standstill 18 months ago.

Clinton County commissioners issued a special-use permit that cleared the way for the project to break ground, as the townships where the project would be located – Dallas, Essex and Bengal – ceded zoning to the county prior to the project’s approval by the county board.

But those townships subsequently passed ordinances that restricted height and other factors for the project. For example, the townships restricted height to 400 feet or less, while the proposed wind turbines would reach 426 feet.

Last July, Clinton County Circuit Court Judge Randy Tahvonen ruled county zoning trumped the townships’ ordinances. The townships missed their chance to regulate the project on their terms, he said, because they failed to enact the local zoning options available to them.

The townships filed their appeal in November. The Court of Appeals gave lawyers for the opposing sides 20 minutes each to speak for or against the legal basis of Tahvonen’s ruling.

The judges’ questions indicated the dispute represents a complex legal conundrum that will have repercussions across the state in the relationships between counties and townships.

Judge Kurtis Wilder asked whether police power ordinances and zoning ordinances can co-exist and whether townships are forced to choose between local zoning or police power ordinances.

Okemos attorney Bill Fahey, who represents all three townships, argued the two sets of regulations can co-exist because Clinton County’s new zoning law concedes the right of townships to create stricter regulations.

“There’s no conflict between the township ordinances and the county (zoning) ordinance,” Fahey said.

If the county limits wind turbine height to 450 feet but township ordinances limit them to 400 feet, “you can comply with both ordinances by building to 400 feet,” Fahey said.

Project manager Tim Brown of Chicago has proposed erecting 39 turbines, each of which would top out at 426 feet at the height of the blade rotation. He said size matters because the project needs to produce enough power to meet “utility-grade” standards.

Jon Bylsma, the Grand Rapids lawyer representing the would-be wind farm, said Michigan’s Zoning Enabling Act specifies township ordinances cannot be inconsistent with county zoning if county zoning was in place when the townships adopted their ordinances.

He said Tahvonen was right when he cited the state zoning law and invalidated the township ordinances.