November 7, 2017
Michigan

Federal judge rules against wind developer

Brenda Battel, Tribune Staff Writer | Huron Daily Tribune | Tuesday, November 7, 2017 | www.michigansthumb.com

ALMER TOWNSHIP – A federal judge recently dealt a blow to big wind development in a Tuscola County township.

A subsidiary of NextEra Energy Resources sued Almer Township in U.S. District Court in February alleging that the township’s Board of Trustees had systematically tried to prevent the development of a wind farm.

However, Judge Thomas L. Ludington on Friday affirmed the township’s decision not to allow the development of 19 turbines, which is part of a proposed 55-turbine wind farm in Almer, Fairgrove and Ellington Townships.

Tuscola Wind III, LLC – the NextEra subsidiary – is also suing Ellington Township for similar reasons: violation of the Zoning Enabling Act, violation of the Open Meetings Act, and violation of due process.

Tuscola Wind accused Almer Township of exclusionary zoning, which violates state law.

The township had enacted a temporary moratorium on wind development in November 2016 while officials contemplated changes to its wind ordinance.

The township also denied Tuscola Wind its special land use permit application for the project.

There was also controversy regarding required sound measurements in the ordinance; specifically using the LMAX metric versus the LEQ metric, according to the complaint and Ludington’s opinion.

“The township board reasonably interpreted its zoning ordinance, and … Tuscola (Wind) was indisputably in noncompliance with the zoning ordinance,” Friday’s opinion reads.

The lawsuits emerged after both Almer and Ellington townships elected new members to their boards of trustees last November – whom NextEra accused in its complaints of having an anti-wind agenda.

Bryan Garner, manager of communications for Florida-based NextEra, made the following statement regarding the judgement:

“We are disappointed and respectfully disagree with the court’s decision upholding the denial of our special use permit in Almer Township. We are currently reviewing the opinion of the court to determine our next steps.”

NextEra had also proposed turbines in 2016 for Sherman, Sigel and Sand Beach Townships in Huron County.

But Garner said the lawsuits in Almer and Ellington towships are “limited to the scope of those two townships and the Tuscola Wind III project.”

Huron County voters in May rejected the proposed Sherman/Sigel wind overlay district, and voters in Sand Beach Township supported changes to the township’s zoning ordinance that placed sound restrictions on turbines.

One difference in the situations in Huron and Tuscola counties is that half of Huron County’s townships are ruled by county zoning, as are Sherman and Sigel. All townships in Tuscola are self-zoned.

Another difference is the use of an overlay district versus a special land use permit.

Huron County designates certain areas of land as wind overlay districts, which are eligible for wind development. In the case of an overlay district, voters can have the final say in whether the district is approved once it passes at the county level.

With special use permits, however, the decision does not land in the hands of voters. The governing body, such as the township board or county board, makes the decision.