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Can zoning be weapon? No, lawyer tells pro-wind group  

Credit:  Joshua Vissers | The Daily Mining Gazette | Apr 26, 2019 | www.mininggazette.com ~~

Steven Tinti, an attorney from Crystal Falls, gave a brief talk at the meeting organized by Services And Vibrant Economy (SAVE) for Baraga on Tuesday night.

“What we’re ultimately talking about are property rights,” he said.

Tinti asked how many members of the roughly 70-person audience believed zoning could be used to bar lawful land uses in a township. There was little response from the audience.

“Believe it or not, in the state of Michigan… when it comes to zoning and land use, they are putting more and more restrictions on what local units can do.”

He said zoning regulations have to be based on the protection of the health, welfare and safety of the community and cannot bar an otherwise lawful use of the property.

As evidence, he quoted the Michigan Zoning Enabling Act. Section 207 states that zoning cannot prohibit a land use if a demonstrated need for that use in the state can be demonstrated, “unless a location within the local unit of government does not exist where the use may be appropriately located…”.

Tinti said this means that a township cannot ban something the state in general needs.

He then pointed to the Clean and Renewable Energy Waste Reduction Act. In Section 28C, the state mandates that electricity providers in Michigan have an “renewable energy credit portfolio” of at least 15% by 2021. This means providers must be able to show that they procure at least 15% of their electricity from renewable sources using renewable energy credit vouchers.

“You’re either looking at wind, or you’re looking at solar,” Tinti said.

Tinti said the referendum will not determine whether the township is in compliance with the state laws. He cited several cases.

First was the 1929 case City of North Muskegon v. Miller. The case overturned zoning rules in North Muskegon that prevented land owners from drilling for oil on land that was zoned residential because they found the rules unnecessarily restrictive.

Another drilling ordinance, which required the securing of a permit, was upheld.

The 1958 case called CertainTeed Products Corp. v. Paris Township overturned zoning rules that prohibited a gypsum mining operation because the township could not provide evidence that mining there would have “very serious consequences.”

The Silva v. Ada Township case of 1982 reaffirmed the 1958 case when it overturned zoning that prevented a gravel strip mining operation.

“Commercially valuable gravel, being located in a unique spot… you can’t bar that development, because they can show they can develop it without serious consequences,” Tinti said.

He said the laws have undergone some changes, but the “very serious consequences” provision still stands.

He said otherwise, townships could prevent all sorts of things from being built: pipelines, group homes, telecommunication towers, landfills and more.

“All these things, originally, units tried to say ‘not in our back yard,’ not saying that we didn’t need them, just we didn’t want them where we were at,” Tinti said. “As a result what we have is the state comes in and bars that.”

He said he would wager the state will remove the ability for local zoning control of wind turbines within the next 5-7 years, similar to telecommunications towers.

“I think at the end of the day you need to understand that land-use choices in zoning the final say is always going to be by what is best statewide because the Legislature will preempt us, and it’s going to happen,” he said. “You cannot use a land use tool to bar a lawful activity.”

Source:  Joshua Vissers | The Daily Mining Gazette | Apr 26, 2019 | www.mininggazette.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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