Court rules against townships in wind farm dispute; Clinton County townships approve new regulations on proposed wind farm
The Michigan Court of Appeals has ruled for the second time in less than a year against three Clinton County townships in their efforts to block a proposed wind farm.
The 2-1 ruling was made by a panel that included judges Amy Krause, Cynthia Stephens and Kurtis Wilder, who voted against denying the motion.
In the decision, Wilder wrote that while he no longer believed the township’s wind farm regulations were stricter that the Clinton County zoning ordinance they “do not necessarily conflict with the county ordinance.”
Bengal, Dallas and Essex townships had sought a reconsideration of an earlier decision by the court in an attempt to regulate a wind farm proposed by Forest Hills Energy-Fowler Farms. The company plans to construct a total of 39 wind turbines within the three townships, with each turbine having a height of 427 feet.
Each of the townships had passed zoning restrictions that limited the height between 380 to 400 feet.
Clinton County Circuit Court Judge Randy Tahvonen ruled those restrictions were not made under the Michigan Zoning Enforcement Act and the the county ordinance, which allowed a height of 450 feet, was the controlling ordinance.
The Court of Appeals upheld Tahvonen’s decision in December.
Attorney Jon Bylsma, who is representing Forest Hills Energy, said he was pleased with the recent decision.
“We are pleased that the Court of Appeals has rejected the townships’ motion for reconsideration. This is the fourth time that a Michigan court has upheld Forest Hill Energy’s position and rejected the arguments of the township. I’m hopeful that they are done wasting taxpayer money,” said Bylsma.
William Fahey, who is representing the townships, said the next move is up to the townships.
“If they wish to continue the process they would have to seek an appeal with the Michigan Supreme Court. The court only considers a small fraction of the cases that apply to be heard. Typically they take cases that they believe are important to the state’s general laws.”
Fahey said the townships have 42 days to file an application with the court.
New ordinances passed
Township officials have not stood by waiting for the decision. Essex Township enacted new regulations on wind farms, but did not include restrictions on height, distance and setbacks. Dallas Township enacted an interim zoning ordinance in February that restricts the height of wind energy systems to 380 feet. Bengal Township is also considering a zoning ordinance.
Fahey said the township zoning ordinances would supersede the county’s ordinance as long as construction on the wind farm has not started.
“In Michigan, until you actually commence construction a municipality can change its zoning requirements. If a company with a permit has not start building and new regulations are adopted, the company would have to comply with those regulations,” said Fahey.
Bylsma said Forest Hills Energy would file applications under the township ordinances if they are favorable.
“If they try to block this development I would expect the company to file a lawsuit because they have permits that have been approved. A lawsuit would be something that would cost us and the townships tens of millions of dollars when the litigation is over,” said Bylsma.
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