Citizens: ‘Tainted’ wind ordinance sets up legal battle 

The attorney for group of citizens in Tuscola County sent a letter to several Ellington Township officials Friday, threatening legal action over what they call a “tainted ordinance” regarding wind turbines .”

A letter sent to Ellington Township Trustee Michael Wagner – and CC’d to several others – from attorney Josh Nolan details why the group believes a conflict of interest exists.

The group asserts Ellington Township Supervisor Duane Lockwood inappropriately made a motion to amend Ellington Township’s existing wind ordinance in January 2015. County records show that Lockwood’s company, Ellington Land Properties L.L.C., signed lease agreements with a wind developer in mid to late 2014.

It wasn’t until March 1 of this year, however, that Lockwood recused himself from discussions relating to wind development in his role as a public official.

“This undeclared lease constitutes a clear conflict of interest,” Nolan states in the letter. “Supervisor Lockwood’s actions resulted in Ellington Township adopting one of the weakest wind energy zoning ordinances in the entire state of Michigan, with sound pressure limits that will expose Ellington residents to nearly double the sound of that foisted upon their neighbors in Huron County, MI.”

Ellington Township officials are reviewing its current wind ordinance in light of a planned $200 million wind farm project. Essentially, the ordinance will determine how many wind turbines will be allowed in Ellington Township.

The Advertiser sent emails to the entire Ellington Township board of trustees – and George Mika, chair, Ellington Township planning commission – seeking comment two hours after the letter was sent by Nolan Friday morning. No one responded within the five hours before press time.

However, records obtained in late June by The Advertiser through the Michigan Freedom of Information Act show that the conflict of interest issue is not new to the board.

Invoices from Lapeer-based Taylor, Butterfield, Howell, Churchill & Jarvis P.C. – the legal firm that represents the township – show that an attorney or attorneys began billing the township for phone calls and/or research on the subject of “conflict of interest” in relation to “wind energy” starting Feb. 19. (See the invoices by clicking on the image at the right)

An itemized list of three tasks for Feb. 19 is typical:

• “Re: Wind Energy/FOIA. Phone call from supervisor regarding wind energy and recent FOIA regarding same.
• Re: Wind Energy Conflict of Interest. Research conflicts of board members in adopting zoning ordinance amendment.
• Re: Wind Energy. Research on wind energy zoning ordinance conflict.”

The invoices also show other phone calls regarding wind energy that Lockwood made to the attorneys.

For example, the township was billed $37.50 for the following dated Sept. 29, 2014:

“Re: General. Telephone consultation with Supervisor as to wind energy amendments; procedures, clerk appointment process.”

Records from the Tuscola County Register of Deeds show that Lockwood signed a wind lease with an affiliate of NextEra Energy Resources one day later – on Sept. 30, 2014.

Making a case of it

The planning commission has been tasked with reviewing the township’s wind ordinance as NextEra Energy Resources L.L.C. plans to build the $200 million Tuscola III “wind farm” in Ellington, Almer and Fairgrove townships.

Ellington Township’s current ordinance, adopted last year, allows 55 decibels of sound at the house and a setback of 1,320 feet from the home, compared to surrounding areas, including Huron County, where the ordinance doesn’t exceed 45 decibels with a setback restricted to at least 1,640 feet from the home.

Earlier this year, the commission was asked to review the ordinance.

After months of oftentimes contentious discussions, the commission voted last week 3-2 to not recommend any change. The moved surprised many since the board voted 4-1 in favor or more restrictive setbacks one week prior. Mika, one of those who voted “nay,” said he was “devastated” by the action.

Nolan said it was essentially the move that broke the proverbial camel’s back and largely behind the decision to send the letter Friday.

“If Ellington Township were to attempt to move forward on NextEra’s proposed industrial wind turbine complex under the current ordinance (which is tainted by Supervisor Lockwood’s conflict of interest), my clients have instructed me to initiate litigation against Ellington Township,” Nolan wrote Friday.

Since early this year, the group of citizens has been asking the township to reconsider proposed changes to its wind ordinance that they have generally stated as being more conducive to the overall health, safety, and welfare of the entire township.

The group has been called everything from “anti-wind” to “crybabies” and identified by a representative of NextEra Energy Resources as having one true mission: “delay, delay, delay.” Concurrently, group members – officially known as the Ellington-Almer Township Concerned Citizens – has consistently stated on the record that they are not anti-wind.

“We are pro-setback and we feel that health and safety are much more important than the money the turbines will bring to the township and to the wind lease owners,” said Norm Stephens, a member of the group, on a July 4 post to the group’s Facebook page.

“And, most of our opposition says not only are they PRO wind, but ‘they- are anti-setback because they care more about the money for themselves and for the township than they care for the residents’ health and safety. ‘THEY’ WANT MONEY – and we want health and safety,” Stephens wrote.

In Friday’s letter, the group took its most aggressive action to date.

“Supervisor Lockwood’s actions to sacrifice safe sound limits and setbacks for his own financial gain not only render the amendment of…the Zoning Ordinance invalid, such actions provide the residents of Ellington Township with a strong claim against Ellington Township for violation of their right to Due Process and Equal Protection of the law. And my clients will assert those claims if necessary,” Nolan wrote.

The letter cites two specific laws regarding standards of conduct for public officers and employees.

Nolan explained to The Advertiser that one states “that a public officer of employee shall not engage in a business transaction in which the public officer or employee may profit from his or her official position or authority, or benefit financially from confidential information which the public officer or employee has obtained or may obtain by reason of that position or authority.”

“Essentially, what’s being laid out there is that Mr. Lockwood had a lease, he benefitted from his official position because he’s the one who made the motion to amend their ordinance and he then voted in favor of that amendment so that NextEra could move forward with building their project,” Nolan said.

The other specific law relates to public officials being unable to benefit financially from regulations they manage, Nolan said.

Nolan added that a potential case could rise to the federal court level because the issue of rights are involved.

Still, Mike Patullo, of Ellington Township, said sending the letter was not the first choice.

“It’s sad that we have come to this point, but too many of our township officials have apparently decided that greed and personal loyalty are more important than protecting the rights of our citizens,” Patullo said. “What a travesty it will be for future generations of Ellington Township if we allow conflict of interest to rule the day.

“Our goal for this letter is to make clear our options going forward. We are determined to correct this injustice,” he added.