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GARDEN TOWNSHIP – “There is a nuisance in Garden Township, but it is not noise – it is odor,” a lawsuit filed by Garden wind farm operator Heritage Sustainable Energy, LLC in the 47th District Court on May 12 stated. “Garden Township’s actions…do not smell right.”
Heritage’s lawsuit focuses on a pair of recently-adopted Garden Township noise ordinances – Ordinance 2014-1, and a revised version called Ordinance 2015-2. If it goes into effect on June 1 as scheduled, Ordinance 2015-2 will limit noise to a maximum of 35 dB(A) and/or 50 dB(C) between the hours of 10 p.m. and 6 a.m. Heritage alleges that these restrictions would essentially make it impossible for the wind farm to continue operating at full capacity during these times, and sued for the court to prevent the enforcement of both ordinances and declare them invalid, unconstitutional, and unenforceable.
“It is obvious…that the true intended purpose of the ordinances is to shut down the Garden Wind Farm every night,” the lawsuit stated.
The company also asked for a preliminary injunction to prevent the ordinances from taking effect on June 1, so as to preserve the status quo before the lawsuit is heard in court beginning on May 26.
The lawsuit stated Heritage could potentially lose up to one-third of the revenue currently created by the Garden Wind Farm as a result of these ordinances, which could make it unfeasible for them to continue doing business in the township.
“Every puff of wind that is lost during those hours would be lost for good, never to be recaptured,” the lawsuit stated.
Another issue Heritage has with Ordinance 2015-2 is the standards set for noise measurement. In this version of the ordinance, noise will be measured not from the property line of the person hearing the noise, but from the property line of the parcel the noise is coming from. The lawsuit claims this is an unfair practice, as it does not accurately reflect how noise is experienced by those affected by it.
“…If the wind turns the rotors of a turbine and there is no one there at the property line to hear it, does it make a nuisance-level sound?,” the lawsuit asked.
The lawsuit also claims the maximum noise level specified in the ordinances is well below wind farm noise limits suggested by the State of Michigan, the World Health Organization, and the Environmental Protection Agency. Were the ordinance strictly enforced, it was alleged that it could outlaw such sounds as a car door closing or people having a conversation on their deck.
Also addressed in the lawsuit is the identity of the plaintiffs in another lawsuit filed by the Garden Peninsula Foundation (GPF) and several individual plaintiffs against Heritage February. That lawsuit alleged the wind turbines put the lives of avian species at risk, along with other claims, but Heritage’s lawsuit states the GPF and individual plaintiffs Margaret Richard and Nicole Young have a conflict of interest. Richard and the GPF’s director serve on the township’s board and Young is the daughter of Township Supervisor Ray Young – which the lawsuit contends could have allowed them to strengthen their own lawsuit by changing township laws.
It was stated in the lawsuit that Heritage expects to win the legal battle with Garden Township.
“Garden Township officials have commandeered the municipal legislative process to bolster their personal agenda,” the lawsuit alleged. “The resulting ordinances are preempted, unconstitutional, and invalid.”
Michael Homier, an attorney with Foster Swift who is defending Garden Township, said he had not yet been officially served with the lawsuit. However, he and the township were aware of its existence, and said they plan to fight against the suit.
“We are going to take action to defend against what we think is a baseless (suit),” Homier said.
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