BAD AXE – The county will spend up to $5,000 for a legal opinion on how to handle a request from dozens of residents asking to be excluded from a wind energy project.
The decision came Tuesday following recommendation from the board’s attorney, Stephen Allen.
Allen said the county should get outside legal opinion because wind project planner DTE Energy has shown a “subtle saber-rattling” and implied threats of being treated unfairly by officials – a view Allen said he’s not sympathetic to, as language in county ordinances has remained the same since inception.
DTE says it’s planning to build 50 to 70 wind turbines over 61 square miles. The area comprises nearly all of Lincoln Township, where the plan has faced heavy opposition.
For the project to go forward, DTE says planners must consider three things: that sufficient wind energy resource exists; wind development is of interest to a majority of landowners in the area; and that the land is mainly agriculturally zoned.
DTE has said its plan far exceeds those and county requirements.
“I have no doubt that we’ve met the requirements,” DTE Project Manager Matt Wagner said to county planners last week.
But according to Allen, DTE’s view is reductive – the decision hinges on more than the three requirements DTE cited, and the utility must align with the county’s master plan and various zoning ordinances, he said.
Creating a wind overlay district is the most crucial part of the process, Allen says, because it locks the county and developer into the project. Planners have tabled action on creating a district.
But because Allen says he hasn’t been involved with legal decisions in creating overlay districts, he advised seeking legal advice from Detroit-based Clark Hill PLC.
And the county has been on a “learning curve” with the “patchwork development of wind turbines,” and the controversy seems to increase as more are built, he said.
“… But I may be dead wrong in my opinion,” Allen said, also stating he cannot advise officials to not follow ordinances.
As disclosure, Allen said his daughter has been associated with Clark Hill for the past 20 years, but that he and his daughter “obtains no benefit” in recommending the agency.
Officials say the $5,000 is available to spend from funds gained from annual zoning fees developers pay.
Tuesday’s decision to seek legal opinion would also explore whether allowing residents to opt out would create spot zoning.
Spot zoning, which many sources say is generally a bad practice, can occur when officials zone a small area or parcel for uses contrary to surrounding areas. The zoning could conflict with a county’s master plan and allow for land use not afforded to the large majority of nearby parcels.
Put simply, officials say it creates a zoning area that looks like Swiss cheese.
And, it’s typically ruled invalid if challenged in court, according to the nonprofit Michigan Association of Planning. Michigan’s Zoning Enabling Act of 2006 and Planning Enabling Act of 2008 make no mention of the term.
If an opinion comes back to the county that exempting the 50 or so residents wouldn’t create spot zoning, Allen says there would be uncertainty if the county knowingly allows someone with a contract with DTE to opt out of the project.
Adding to the unknown, Commissioner Ron Wruble asked why a recent wind project in his district, near Bloomfield and Huron townships, had a 95 percent participation rate among residents but DTE’s newly planned project seemed to be split 50/50.
Another function of seeking legal counsel, Allen says: if the county ends up in court with DTE, it will have legal representation.
Clark Hill should have no problem giving the opinion in time for county planners’ June 1 meeting, he said.
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