Attorney advises Winfield Township officials on pending wind ordinance

Fahey explained that in these situations, “the rule of necessity” comes into play – meaning that if more than a majority of Planning Commission members have a conflict of interest related to a specific topic, they must declare that interest on the record during a public meeting, and they are then allowed to vote on the topic.

The Winfield Township Planning Commission has nine members, so Fahey said as long as five members don’t have a conflict of interest on a project, they can consider and vote on conditional use or special use projects; however, if five members have a conflict of interest, then they must declare such on the record and then vote.

“That may seem like an unusual situation, but the reality is we cannot get another township to come in and make our decision for us,” Fahey noted. “We have to make the decision.”

“At what point does it have to be disclosed?” asked Planning Commissioner Ken Fisk (who added that he has not been approached by Apex at this point).

“It should be disclosed at a couple of different times,” Fahey responded. “The first time it should be disclosed is prior to the initial meeting where the Planning Commission will consider the project application.”

“So it can be done after an ordinance is adopted? It can be done just for a special land use request?” Fisk questioned.

Fahey said this question is “a matter for general legislation within the township.”

“When the Planning Commission does vote on the ordinance, you are not required to disclose yourself because those are general regulations that do not relate to a particular project or piece of property,” Fahey said. “When we have an application for a particular project, that’s going to be different. We’re going to say ‘does this Planning Commission member have property that’s signed to be included in the project or within 300 feet of the project?’ In those cases, you would need to disclose your conflict of interest.”

“So self-interest is not an issue in adopting an ordinance?” Fisk asked.

“That’s correct because adopting an ordinance does not relate to a specific person or piece of property,” Fahey responded. “It’s simply legislation that affects everyone in the township.”

PROTECTING THE TOWNSHIP

Fahey also discussed several specific wind farm items that local officials should be aware of to protect the township. For example, he said it costs about $200,000 to remove a turbine that’s no longer in operation. He also advised the township to request a non-refundable application fee from a wind company in the amount of from $25,000 to $50,000 and the township should request an upfront escrow fee designed to cover attorney and engineering/planning costs (he said this fee is typically in the amount of $3,500 per turbine involved).

“The township wants to makes sure that it has security in place in case the project developer just goes belly-up that those things get taken down if they’re no longer in use,” Fahey said. “When you put up a 500-foot tower, you need to have a very substantial amount of concrete as the base for that tower because that is supporting the entire torque of that large tower. The concrete goes about 10 feet deep into the ground. When it is decommissioned, they’re required to remove that concrete at least 4 feet from the surface – so there will be concrete that’s left in place 4 feet below the surface.”

Planning Commissioner Julia Potratz asked about possible road damage if a wind farm is erected. Fahey said townships often contract with the county Road Commission in situations like these.

“Typically after a project like this is developed, then roads are much better than they were before the project was developed,” Fahey noted. “They (wind officials) need to have good roads so they will actually do road improvements before they move the tower pieces in.”

Winfield Township Board Trustee John Black wondered if the township should hire an engineering firm to review proposed plans for a wind farm if the project advances.

“Yes, you’re going to need a professional consultant to look at the details of your project,” Fahey said. “That can be an engineering firm or a planning firm, or there are some firms that do both.”

Township officials also asked about turbine setbacks and noise levels. The township’s currently drafted wind energy ordinance (which has not yet been approved and is based on an ordinance in Gratiot County’s Pine River Township) lists turbine setback from occupied buildings at no less than the greater of either two times its hub height or 1,000 feet; turbines shall not be located within 1.5 times its hub height of the property line of a non-participating lot; and turbines shall be set back from the nearest public road at a distance of no less than 400 feet or 1.5 times its hub height (whichever is greater).

The drafted ordinance currently lists the sound limit for turbines at 55 decibels dB(A), which Fahey likened to “someone talking in another room.” He compared 70 dB(A) to the sound of traffic on a nearby road.

“There will be some noise,” he said. “If 55 is not something you and your board can accept, then I don’t think you look at having a project like this in Winfield Township. If the township wants less noise or greater setbacks, it’s likely Apex won’t want to build in Winfield Township.

“Every community has got to make its own decision in that regard,” he concluded. “Just because it works for one place doesn’t mean it’s going to work for another place. You probably should go out and look at some of these projects and see where they’re located and talk to local communities and see whether they’re satisfied with the setbacks that they’ve had.”

CIRCUMVENTING THE OPEN MEETINGS ACT

Members of the Winfield Township Planning Commission also gathered the evening of Nov. 9 to discuss the pending wind ordinance, along with representatives from Apex Clean Energy.

However, the Open Meetings Act requires that all such meetings be posted for the public’s knowledge – and the Nov. 9 gathering was not posted.

The meeting was never called to order and minutes were not taken, but those present talked about the topic of a wind ordinance for two and a half hours.

Planning Commission Chairman Chris Rader told the Daily News he and other commissioners didn’t realize until the night of the meeting that it hadn’t been properly posted, but he thought they could still discuss the wind ordinance if they didn’t take any action on it.

After being informed by the Daily News of Open Meetings Act requirements, Rader said the situation won’t happen again.

“From now on I need to make that a point that we’re covering all our bases,” he said.

According to the Open Meetings Act, a meeting of a public body cannot be held unless public notice is given and informal meetings before formal meetings are prohibited. Anytime a quorum of a public body meets and considers a matter of public policy, the meeting must comply with OMA requirements. Even at a chance meeting constituting a quorum, matters of public policy may not be discussed by the member with each other.

“In a nutshell, there can be no meetings of the public body without public notice,” summarized Jennifer Dukarski, deputy general counsel for Butzel Long, which represents the Michigan Press Association. “It sounds like public policy may have been discussed; therefore they should have had a formal meeting and there should have been a notice. It would appear that they have indeed circumvented the Open Meetings Act, even if this was not the intent.”