A panel of Michigan Court of Appeals judges has upheld a lower court ruling that pulled the plug on three Clinton County townships’ efforts to block a proposed $120 million, wind-power project.
The judges on Thursday affirmed Clinton County Circuit Judge Randy Tahvonen’s ruling of 14 months ago that invalidated wind-turbine restrictions Dallas, Bengal and Essex townships enacted in 2012.
The panel agreed the project is governed by the county’s zoning ordinance, which commissioners passed in 2011 under state zoning law and which led to their approval of the 39-turbine, Forest Hill Energy project.
“The county’s ordinance became controlling with respect to wind energy systems only because defendants (the townships) failed” to take advantage of the local zoning options that were available to them, the three-judge panel said.
In a scramble to block the project after it received county approval, each township passed nearly identical local police-power ordinances restricting height, setback, noise and other elements of the project.
Townships are permitted to adopt ordinances for the protection of the public health, safety and welfare, but a zoning regulation must be enacted in compliance with Michigan’s Zoning Enabling Act, the appeals panel ruled.
“Because defendants’ ordinances regulate the ‘use’ of land, not just isolated ‘activities,’ the ordinances are not proper regulatory laws enacted pursuant to defendants’ general police powers, but rather properly are classified as zoning laws,” the panel said.
The county-vs.-townships dispute brought the project to a standstill 22 months ago – soon after Clinton County commissioners issued the special-use permit that could have cleared the way for the project to break ground.
Tahvonen issued his opinion in October 2013. The townships filed their appeal three weeks later. Appeals Court Judges Amy Ronayne Krause, Kurtis T. Wilder and Cynthia Diane Stephens heard arguments in July and took more than four months to rule.
Each of the project’s turbines would top out at 426 feet at the height of the blade rotation. Project manager Tim Brown said size matters because the project needs to produce enough power to meet “utility-grade” standards.
“We are pleased that now we can proceed with the project,” Brown said in an e-mail today from his Chicago office, adding that developers still must wait to see if the townships appeal the ruling to the state Supreme Court.
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