A $10 million cash settlement meant to end litigation between alternative energy corporation NextEra Energy Resources and Tuscola County was not accepted by a pair of county entities this week.
On July 25, the Tuscola County Airport Zoning Board of Appeals denied variances on 33 wind turbines associated with NextEra’s Pegasus Wind Project, which would place about 60 turbines in Juniata, Fairgrove and Gilford townships. The 33 turbines in question would be close enough to the Tuscola Area Airport that a variance must be obtained in order to continue construction.
NextEra, based in Juno Beach, Florida, filed an appeal – against Tuscola County and the AZBA – in an attempt to get the denial of the variances overturned.
On Tuesday, the AZBA met in a closed session to discuss a financial offer from NextEra. If accepted, the lawsuit would be dropped and the variances for the turbines would be approved.
On Thursday, the Tuscola County Board of Commissioners also held a closed-session meeting to discuss an offer from NextEra.
Neither entity accepted the offer.
“In an effort to find an amicable solution, we made a significant financial offer to the county that included numerous concessions,” John Di Donato, NextEra vice president of development and origination said in a statement. “When combined with the expected tax revenue Pegasus Wind would contribute, we’re talking about nearly $50 million in positive financial impact for Tuscola County. At the end of the day, we want to build a project that significantly benefits this community and generates clean, home-grown energy for Michigan.”
While exact details of the NextEra settlement offer haven’t been disclosed, Thomas Bardwell, District 2 Commissioner (representing Almer, Ellington, Kingston and Novesta Townships and the city of Caro) confirmed that the bulk of the offer was in a $10 million payment to Tuscola County.
NextEra operates three Thumb wind farms – Pheasant Run in Huron County and Tuscola-Bay and Tuscola II, both in Tuscola County. In fall 2017, NextEra officials approached officials in Juniata and Fairgrove townships about a fourth wind farm – Pegasus.
Multiple holdups have caused the project to stall, and it may not be completed at all.
Tuesday’s AZBA meeting began at 5 p.m. at the Tuscola Technology Center. After about an hour and a half of public comment, the board – consisting of Vice Chairman Tim Kinney, Secretary William Campbell, Paul Hoose and Donald Clinesmith – went into a closed meeting, along with Tuscola County attorneys, to discuss the offer.
The AZBA usually contains five members, but Chairman Keith Kosik recused himself in July before the board voted on the turbine variances due to a conflict of interest.
Before convening in private, Campbell addressed the audience about his responsibility as a member of the AZBA.
“Our responsibility here is to carry out the law, which we did, and to support the law, which I’m here to do,” Campbell said. “No amount of money is going to cause me to alter my decision to comply with this law.”
Campbell then pointed to the card in front of him, containing his name and identifying him as an AZBA member.
“If you look at this card here, my name is Bill, not Judas,” he said. “And 30 pieces of silver will not buy my reputation and my character.”
After returning from the private session, which lasted about an hour, Hoose moved to propose a counteroffer, which was read by the board’s attorney, Jamie Nisidis.
“The AZBA has considered a settlement offer from Pegasus Wind and hereby resolve to reject the offer and authorize its attorneys to make a counter offer as follows,” she said.
The AZBA’s counteroffer doubled the cash settlement from $10 million to $20 million, with half going to the Tuscola Area Airport, and half to Tuscola County. It also stipulated, in essence, that if a landowner of property within one mile of the 33 turbines requiring a variance decides to sell, NextEra would pay the difference if the land was not sold at fair market value as determined by a qualified appraiser selected by the landowner.
The counteroffer also stipulated that NextEra would work in conjunction with the Federal Aviation Administration and Michigan Department of Transportation to provide pilots with procedural instructions to navigate around the turbines. In addition, the counteroffer would end NextEra’s appeal. It contained a deadline of 5 p.m. Friday.
Since the counteroffer was conceived during the private session, it is not clear who authored it. After Hoose made a motion for the counteroffer, it was not seconded by any of the three remaining AZBA members, therefore ending the motion.
The approximately 50 audience members in opposition of the Pegasus project cheered in approval.
However, even if the motion had been seconded and approved, it is unlikely that NextEra would have accepted the counteroffer. Asked Thursday if the counteroffer would have been agreed to, Di Donato told an Advertiser reporter, “No, but it would have at least been a counteroffer and we would have known that we had a willing party to negotiate with.”
Thursday, the Tuscola County Board of Commissioners interrupted its regular meeting at the Purdy Building in Caro, and the members drove to Caro High School to hold a special meeting regarding the NextEra settlement offer in the school’s auditorium so more audience members could be accommodated.
At the onset of the meeting, Bardwell explained that since NextEra’s appeal names both Tuscola County and its AZBA, the board of commissioners felt necessary to meet and address the offer.
The public comment portion of the special meeting lasted about an hour and a half, with several of the same people – both for and against the wind project – voicing the same concerns they spoke of at Tuesday’s AZBA meeting.
Many in attendance compared the settlement offer to bribery.
“We really don’t have a settlement (offer), we have a wide-open, bare-chested bribe to our community,” said Almer Township Trustee Jim Tussey. “A settlement would have to do with still following the law.”
The communities of Almer and Ellington townships are familiar with NextEra projects. Tuscola Wind III, which was to be constructed in the townships didn’t come to fruition after the township planning commissions enacted a moratorium to take a longer look at their respective wind ordinances. NextEra ultimately sued the two townships in U.S. District Court. In short, Almer and Ellington were victorious and Tuscola Wind III was squelched.
Di Donato called the “bribe” comparison false during his turn in the public comment portion of the meeting and noted that cash settlements are a common practice.
“Commercial settlements happen all the time,” he said. “The FAA and the Michigan Department of Transportation Tall Structures have determined that our array is safe. I looked at Wikipedia today and in 2008, it said 28 planes a day take off from (Tuscola Area Airport). Twenty-eight planes a day do not come and go from that airport today.”
“We have a safe array; it’s been determined that way by people who understand it.”
After public comment, the board of commissioners went into private session for about an hour and 20 minutes. Afterward, Bardwell told the audience the board had three options – make a motion to approve the settlement offer, make a motion to approve a counteroffer, or make no motion at all.
The board chose the latter.
Bardwell asked three times if any member wished to make a motion. None spoke, which put the possibility of the proposed settlement to rest.
It was not made clear that if the board had accepted the settlement, it would be able to lawfully approve the turbine variances. Campbell said Tuesday that the board could not overturn a decision made by the AZBA.
“Nowhere in this process is there any allowance for the county commissioners to be involved – before now or after,” he said. “Even though they’ve been offered a settlement, that has no effect on us.”
Before the board of commissioners convened in private Thursday, Di Donato reminded it the legal case for reversing the decision on the variances is still pending in court, and that a ruling for NextEra would obviously mean all settlement offers would be off the table.
“We’re just trying to make an offer that seems fair,” he said. “This is in the judge’s hands today, and the judge could render a decision tomorrow. And if that decision goes the way we believe it will, and the way that it did against the Juniata group, this offer is off the table. So when you consider this offer in closed session, that’s really what you’re considering.”
Di Donato was referring to a successful appeal from earlier this year. NextEra filed a suit in Tuscola County Circuit Court against Juniata Township, its board and planning commission after the board revoked a special land use permit it had granted NextEra in January 2018.
Di Donato also expressed dismay at Campbell’s role on the AZBA.
“It was disappointing that the county did not consider any of the reasonable offers we have made to settle our case out of court, including numerous concessions that addressed concerns raised by the Airport Zoning Board of Appeals,” Di Donato said. “It was also disappointing to hear a seated member of the AZBA (Campbell) express such open bias against the Pegasus Wind project in front of the board who appointed him.”
On Nov. 1, Tuscola County Circuit Court Judge Amy Grace Gierhart told representatives from both the AZBA and NextEra that she would take each side’s arguments into consideration and make a ruling.
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