March 23, 2017
Michigan

Second lawsuit filed with connections to Tuscola III wind project

Posted by Andrew Dietderich on March 22, 2017 | Tuscola County Advertiser | www.tuscolatoday.com

A second lawsuit has been filed with connections to the proposed $200 million Tuscola III Wind Energy Center in Tuscola County.

The lawsuit was filed Monday in Tuscola County Circuit Court against Ellington Township and newly appointed township planning commissioners Eric Zbytowski and Ed Talaski.

Former Ellington Township Supervisor Duane Lockwood, along with David Vollmar and Ronald Cybulski – all leaseholders for Tuscola III – filed the suit. They are represented by Caro-based attorney George Holmes.

Known as a “Quo Warranto” proceeding, the trio seeks a court order to ouster and exclude Zbytowski and Talaski from the planning commission, and reinstate the two board members they replaced. They also want a restraining order to prohibit Zybtowski and Talaski from holding office or participating as members of the planning commission. Essentially, the complaint challenges the legality of the appointments and authority of Zbytowski and Talaski.

On Monday, Tuscola County Visiting Judge Kenneth Schmidt issued a temporary order barring township officials from making any wind turbine–related decisions until the matter is resolved.

According to the complaint, “Plaintiffs are justly apprehensive that Defendant (Ellington) Township in concert with Defendants Zbytowski and Defendant Talaski will legislate, by restriction, wind turbines out of Ellington Township…depriving your Plaintiffs of their property rights in their leases permanently, and such action on the part of said Defendants is imminent.”

Russell Speirs, supervisor, Ellington Township, said the township would not comment on the matter other than stating that the township denies all of the claims.

In December 2012, NextEra launched operations of its first Tuscola County wind project that consists of 75 wind turbines. In November 2013, the company’s second Tuscola County project – Tuscola Wind II Energy Center – began operating. The wind turbines are primarily in Gilford and Fairgrove townships.

Tuscola III’s expansion east into Almer and Ellington townships would be the first wind turbines in those two communities.

Almer and Ellington have been rife with conflict for about a year-and-a-half as each community prepares to handle – or not handle – the total addition of 55 new wind turbines called for in plans for Tuscola III.

Monday’s filing in Tuscola County Circuit Court is the second suit filed this year with connections to Tuscola III.

Tuscola Wind III L.L.C. – a subsidiary of Juno Beach, Florida-based NextEra Energy Resources L.L.C. – filed a lawsuit Feb. 15 in U.S. District Court for the Eastern District of Michigan in Bay City against Almer Township and the Almer Township Board of Trustees.

The 49-page complaint identifies five counts – claim of appeal, violation of procedural due process, equal protection, the Zoning Enabling Act, and Open Meetings Act.

The suit essentially claims a systematic effort has been underway to “kill” the planned Tuscola III project, starting with the formation of the Ellington-Almer Township Concerned Citizens (EATCC) group, continuing with the election of several group members last November, and culminating with a one-year moratorium on wind projects and denial of special-land use permit (SLUP) by the board in January. An answer hasn’t been filed to the complaint as of press time.

Tuscola County Register of Deeds records show Tuscola III has been in the works since at least 2014, when the company began securing leases with landowners like Vollmar, Cybulski, and Lockwood – who had served as township supervisor for more than 20 years.

As The Advertiser reported last April, emails obtained through Michigan’s Freedom of Information Act show that as Tuscola III evolved, Lockwood was involved in private meetings with the township’s engineering firm – Spicer Group Inc. – and NextEra representatives.

That includes an Oct. 14, 2015 meeting in the Ellington Township Hall that consisted of a project overview, schedule, “township ordinance/application package walkthrough,” and next steps.

Concurrently, township officials were reviewing Ellington’s ordinance related to wind turbines and projects.

It wasn’t until late 2015, however, that residents – many who would go on to be part of EATCC – became more aware of the project as the process of reviewing the township’s wind ordinance neared completion.

EATCC members consistently argued wind ordinances needed to go further to protect the health, safety, and welfare of all citizens.

Former township officials and representatives of NextEra countered by saying the wind ordinance was fair, allowed for the project to safely move forward, and labeled people within the EATCC as “anti-wind.” Vollmar was an outspoken critic of EATCC members, often publicly calling them names like “crybabies” and more.

In early 2016, as pressure from the EATCC ramped up, Lockwood recused himself from wind-related discussions in his capacity as supervisor.

Ellington Township voters would go on to elect newcomer Speirs as supervisor in November, while Bobbie Mozden ousted former clerk Joddy Ehrenberg, Carmell Pattullo was elected to replace Diane Wilder and Gregg Campbell was elected as a new trustee. Trustee Mike Wagner was the lone board member re-elected.

The suit filed Monday claims Speirs, Mozden, Pattullo, and Campbell as being among those “who have actively opposed NextEra’s Tuscola III wind project.”

The “quo warranto” suit largely deals with the month leading up to, and after, the Nov. 8 election.

At its Oct. 11 meeting, the board rescheduled its regular November meeting because it would have occurred on Election Day. The meeting was held on Nov. 1. According to the lawsuit, notice of the rescheduled meeting wasn’t posted on the township door. (The township doesn’t have a website). The lawsuit points out that “not less than 23 members of the public” were in attendance, regardless.

At the Nov. 1 meeting, Ellington Township planning commissioners George Mika and Eugene Davison were re-appointed to the five-member planning commission for three-year terms ending 2019.

They were sworn in Nov. 15, though the newly elected township board invalidated the appointments on Dec. 15, citing improper notification of theNov. 1 meeting during which Mika and Davison were appointed. The lawsuit claims the removal of Mika and Davison as unlawful.

Zbytowski and Talaski were appointed to the planning commission on Jan. 17 and the suit claims they are “usurping, intruding into, or unlawfully holding office on the Ellington Township Planning Commission.”

The suit further claims they “have participated with the political action group ‘Ellington-Almer Township Concerned Citizens’ to attempt to stop the Tuscola Wind III project and/or impose restrictions that would be tantamount to a de facto exclusion of wind turbines from Ellington Township…”