Planning commission revokes NextEra SLUP, setting up likely legal battle 

At Tuesday’s special meeting, the Juniata Township Planning Commission voted to revoke a special land use permit (SLUP) from NextEra Energy Resources that the commission had approved in January 2018.

At the meeting, which was held in the cafeteria of Caro High School, the commission voted 4-1 to rescind the SLUP, following a public comment session that saw folks speak for, and against, revoking the permit.

Juno Beach, Fla.-based NextEra approached officials in Juniata and Fairgrove townships in fall 2017 with a potential wind-farm project – called Pegasus Wind Energy Center – that would place 32 wind turbines in Fairgrove and 31 in Juniata.

The Fairgrove Township Planning Commission approved the Pegasus SLUP in December 2017, and the Juniata Township Planning Commission followed suit in January 2018, but not without controversy.

The Juniata Planning Commission, which today contains one member that was on the commission at the time of the Pegasus SLUP approval, met for over 14 hours – in a span of three different meetings – before approving the SLUP on Jan. 13, 2018.

Since then, several changes have been made to the planning commission. It now is made up of seven members instead of five, with Ione Vice the only member on the commission presently who was on it during the SLUP-approval process.

In January 2019, the planning commission gave NextEra 30 days to get its permits in order, saying that if all federal, local and state permits, licenses and variances were not met on March 5, the commission would discuss possible revocation of the SLUP.

The March 5 meeting was adjourned without a decision on the SLUP, but the commission reconvened on Tuesday and made the decision to revoke it. The four members of the planning commission to approve the revocation of the SLUP were Richard Peterhans, Mike Wilson, Nancy Laskowski and Brenda Wachner. Opposing the revocation was Vice. Two members of the planning commission – Joe Baranic and Carol Hess – refrained for voting because of a conflict of interest.

The planning commission pointed to the code compliance section of the Pegasus SLUP application as the main reason for revocation. The section reads: “The Pegasus Wind Energy Center will comply with all applicable federal, state, and local laws and regulations and will obtain all required federal, state, and local approvals, licenses, permits or variances for the proposed wind project prior to the date of construction. NextEra Energy Resources performs a systematic evaluation of its wind projects to ensure they are sited in an environmentally responsible manner and in compliance with all applicable local, state and federal laws and regulations.”

Despite a portion of the section stating that NextEra would not begin construction until it retains all applicable permits, the Pegasus Project has begun with the construction of base supports as well as roads to the supports.

At the March 5 meeting, NextEra representatives said they interpreted the passage as meaning that Pegasus could be constructed to the point of which permits NextEra is already in possession of apply. NextEra needs multiple permits in order to erect the Pegasus project. But NextEra officials have said that those permits are only needed to construct the turbines themselves, not base supports or other necessary items.

The next step in the process, receiving a notice of “no presumed hazard” from the Federal Aviation Administration, has not been completed. Because of the proximity of several prospective turbines to Tuscola Area Airport, the FAA must issue approval for the turbines to be constructed. In February 2018, the FAA issued a notification of “presumed hazard” for 46 of the what was then 62 turbine locations associated with the project.

Since February, NextEra has been in the process of working with the FAA for approval.

If NextEra gets a “no presumed hazard” notification from the FAA, it will file for the proper permits with Tuscola Area Airport and the state Office of Aeronautics, which issues Tall Structure Permits.

John Di Donato, vice president of renewable energy for NextEra Energy Resources, spoke at Tuesday’s meeting, saying the company already has invested more than $80 million in ground-level activities.

“I’ve been with this company for 22 years, and oversaw 80 projects. I’ve seen a lot,” Di Donato said. “You’ve called this meeting to revoke our special land use permit, a permit we received after meticulously meeting all requirements of your ordinance and the concerns of this board. We received a unanimous vote and a permit of which we are in full and complete compliance – all for political reasons.

“That, I have never seen before.”

This is not the first time NextEra has faced opposition to wind farms in Tuscola County.

In February and March 2017, respectively, NextEra filed a lawsuit against Almer and Ellington townships and their boards, in essence alleging that an effort had been underway to deny the planned NextEra III Wind Project, which would have been the fourth NextEra wind farm in the Thumb, following Pheasant Run (Huron County), Tuscola Bay (Tuscola, Huron and Saginaw counties) and Tuscola II (Tuscola and Bay counties).

The lawsuits were filed in U.S. District Court in Bay City. In August, District Court Judge Thomas L. Ludington ruled in favor of Almer and Ellington townships in each lawsuit.

Di Donato indicated Tuesday that NextEra may file a lawsuit against Juniata Township as a result of the SLUP revocation.

“Ladies and gentlemen, I’m here to tell you that with all that’s at stake, we will aggressively defend our rights under this permit, and the rights of our landowner partners, no matter what it costs us or the township,” Di Donato said before the planning commission voted. “There’s too much at stake to play politics tonight. I urge you to live up to your obligation under the special land use permit and vote no.”

The main difference between the legal proceedings against Almer and Ellington townships and potential proceedings against Juniata Township is that Almer and Ellington never approved a SLUP.

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Timeline of NextEra in the Thumb

2012: NextEra Energy Resources builds Tuscola Bay Wind Farm, consisting of 75 wind turbines in Tuscola, Saginaw and Huron counties.

2013: NextEra constructs two wind farms – Tuscola Wind II, consisting of 59 turbines, is built in Tuscola and Bay counties, and Pheasant Run is built in Huron County.

March 2016: NextEra announces plans to construct a new wind farm in Tuscola County in 2017.

August 2016: Almer and Ellington townships see a change in leadership with candidates opposed to wind farms winning in each township’s primary election. In Almer, Jim Mantey defeated incumbent Jim Miklovic and in Ellington, Russell Spiers defeated incumbent Duane Lockwood. Incumbent board members were also ousted in each county in the election.

September 2016: NextEra confirms plans for the $200-million Tuscola III Wind Project, which would place a total of 52 wind turbines in Fairgrove, Ellington and Almer townships.

February 2017: NextEra files a lawsuit in U.S. District Court against Almer Township and its board. The suit alleged that an effort had been underway to deny the planned Tuscola III project.

March 2017: NextEra files a lawsuit in U.S. District Court against Ellington Township and its board. The first count in the complaint argued that Ellington Township violated the Michigan Open Meetings Act by enacting a moratorium while considering the Tuscola III special land use permit.

November 2017: NextEra announces plans for a new wind farm – the Pegasus Project – which would call for about 60 turbines in Juniata, Fairgrove and Gilford townships.

December 2017: The Fairgrove Township Planning Commission approves the Pegasus Project special land use permit.

January 2018: The Junita Township Planning Commission, after more than 14 hours of discussion spanning three meetings, votes unanimously to approve a special land use permit from NextEra for the Pegasus Project.

February 2018: Members of the Concerned Citizens of Juniata Township initiate recall proceedings against four members of the Juniata Township board – Supervisor Neil Jackson, clerk Heidi Stark, treasurer Andrew Stark and trustee Elaine Schunn. This is the second time a recall of the four has been attempted, following an attempt in December that was denied by the Tuscola County Election Commission. This time, the TCEC approves the recall for both Starks and Jackson, but not for Schunn.

February 2018: The Pegasus project is put on hold after the FAA issues a notice to NextEra that 46 of 62 turbines associated with the project would have the designation of “Presumed hazard.”

August 2018: U.S. District Judge Thomas L. Ludington rules in favor of Almer and Ellington townships in the complaints brought against them by NextEra, essentially putting an end to plans for the Tuscola III Wind Project.

August 2018: Construction begins on the Pegasus Project in the form of roads to each site, as well as base supports for most of the turbines.

November 2018: Juniata Township Supervisor Neil Jackson, clerk Heidi Stark and treasurer Andrew Stark are ousted at the mid-term election. Taking their place are Garrett Tetil (supervisor), Brenda Bigham (clerk) and Judy Cockerill (treasurer). Over the next couple of months, the new board will make changes to the township’s planning commission.

January 2019: The Juniata Township Planning Commission gives NextEra officials notice that if all permits and licenses presented in the Pegasus special land use permit are not satisfied within 30 days, the commission would consider revoking the SLUP.

March 2019: The Juniata Township Planning Commission votes 4-1 to revoke the Pegasus Project SLUP. “Ladies and gentlemen, I’m here to tell you that with all that’s at stake, we will aggressively defend our rights under this permit, and the rights of our landowner partners – no matter what it costs us or the township,” John Di Donato, vice president of renewable energy for NextEra Energy Resources, said at the meeting, indicating the likelihood of a lawsuit.