BAD AXE – Legal issues with the Huron County Master Plan have surfaced, and county officials are considering seeking the opinion of outside legal counsel.
Some county commissioners and the county’s corporate counsel question the legality of nonconforming land use as described in the plan, pertaining to wind turbines.
Nonconforming land use is use of property that was allowed under zoning regulations at the time the use was established, but would no longer be permitted due to subsequent changes in those regulations.
County Corporate Counsel Steve Allen said at the Huron County Board of Commissioners meeting Tuesday both the master plan and the county’s wind ordinance might conflict with state law.
“A nonconforming use – use that was in effect at the time the law was passed – can continue to exist,” Allen said, referring to state statute.
The state law also says a municipality can make regulations as well, he added.
The county’s ordinance states if more than 50 percent of the value of a turbine is replaced, it must be built according to current standards.
While all turbines in Huron County were built under the county’s 2010 ordinance or prior, the 2015 ordinance would govern such replacements under county regulations.
The master plan also endorses nonconforming wind energy facilities, and refers to the ordinance.
And, Allen is concerned that could lead to litigation on the part of wind developers against the county.
For example, he told the Tribune, if a wind developer is told they can’t rebuild a turbine because it does not comply with the most recent ordinance, the infrastructure might not allow the turbine to be built, say, with further setbacks.
“Each of those persons or entities with property rights – they’ve got a vested interest in the property,” Allen told the board. “ … We’re going to run up against a potential major liability when we get to the point where we tell them (developers) that they’ve got to meet the standards. And those standards would be increased setbacks and other provisions which they’re going to argue are exclusionary.”
“That’s the rub as I see it,” he added.
He also cautioned the board that if a judgment were issued against the county in such a situation, the county’s $15 million insurance policy would not cover the full value of a wind park – which could be hundreds of millions of dollars.
He told the Tribune each turbine has a value of about $3 million.
“If we get a judgment against us for anything above the $15 million, and we can’t pay for it, then we’re going to have to ask the 31,000 (county) residents to dig deep into their pocket to pay the judgment.”
Allen said the county needs to “get it right” in both the ordinance and master plan. So he urged the board to seek an outside legal opinion.
However, no action was taken.
Commissioner John L. Bodis said he discussed the issue with Allen when the master plan was first made available online.
“Everything (Allen) just mentioned, he and I discussed,” Bodis said. ” … I think if we need to have a separate law firm take a look at it, I think that would be a good idea so we get it right.”
Board Chairman Sami Khoury agreed.
Allen responded: “Commissioner Bodis did call me. I detected some alarm in his voice in the first call, and also in the second call. I said I would take a look at it, and after I read it, I could understand his alarm.”
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