LANSING – Three Clinton County townships are seeking a hearing before the Michigan Supreme Court in their legal battle against a proposed wind farm.
Attorneys for Bengal, Dallas and Essex townships filed an application with the Supreme Court Tuesday, seeking an appeal from a decision rendered earlier this year by the Michigan Court of Appeals.
The townships had approved regulations governing wind energy systems in response to a proposed wind farm by Forest Hill Energy-Fowler Farms LLC. The company has plans to erect a total of 39 wind turbines throughout the three townships, with each turbine having a height of 427 feet.
Clinton County Circuit Court Judge Randy Tahvonen and the Michigan Court of Appeals have previously thrown out the township’s regulations, ruling that the county’s zoning ordinance is the controlling law.
A motion for a reconsideration by the Court of Appeals was defeated by a 2-1 vote in June.
The township’s rules would prohibit the project as proposed; county regulations would allow it.
“We are disappointed that the officials of the three townships have elected to spend more of their taxpayers dollars fighting this in court after losing two motions for summary disposition, an appeal before the Michigan Court of Appeals and a motion for a reconsideration,” said Jon Bylsma, attorney for Forest Hill Energy.
William Fahey, who is representing the townships, said the defeat in June motivated the townships to file the application.
“All three townships were encouraged that one of the three judges decided that they were right. That was the first judge that we have had that agreed with the townships, and they hope it starts a trend,” said Fahey.
In their application for an appeal, the townships argue that the regulations are valid township ordinances as allowed under Michigan law
“This is known as the townships police powers act and it is a law used by townships to pass barking dog ordinances or ordinances that control nuisances, noises or tall weeds. Anything that deals with the public health, safety, and general welfare of the residents,” said Fahey.
The township also argues that their regulations are legally consistent with the county’s zoning ordinance.
“The legal definition is whether it is possible to comply with both laws. Clearly if you comply with the township’s ordinances you can comply with the county’s,” said Fahey.
The township regulations limited the height of wind turbines to between 380 and 400 feet. The county’s zoning ordinance allows for a height of 450 feet.
Fahey acknowledges that the Michigan Supreme Court only hears a small fraction of the applications that it receives. However, he was confident that this case would be taken up.
“First, we did not have a unanimous decision from the Court of Appeals. Second, this is an issue that involves local government, and that is something that the Supreme Court takes more of an interest in as opposed to a civil case,” said Fahey.
“Most important, this is something that affects all townships in the state, potentially in a dramatic way,” he added. “If the Court of Appeals is correct, then any order that a township could adopt that takes place on land would have to be through a zoning ordinance and not a police powers ordinance.”
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