MONTCALM TOWNSHIP – As efforts toward amending an existing wind ordinance in the township currently sit in a holding pattern, a moratorium on any wind developments has now landed on the township’s agenda.
During Wednesday evening’s Montcalm Township Board meeting, the board voted 3-2 to establish a moratorium on wind development projects for six months, with Trustees Brian Cousineau, Ed Hansen and Treasurer Rose Hyde voting “yes” and Supervisor Doug Crowley and Clerk Jessica Shearer voting “no.”
The effort to create a moratorium on wind energy projects comes as residents of the township, as well as outside the township, have brought forth concerns regarding a proposal from Apex Clean Energy to place 75 600-foot wind turbines throughout Montcalm County.
While Montcalm Township already has an existing ordinance in regards to wind energy developments, the Montcalm Township Planning Commission is currently in the process of amending that ordinance.
However, a moratorium on wind development projections won’t come to fruition immediately.
As the subject of a moratorium was discussed at the request of Cousineau, Crowley informed the board that per guidance from township attorney Jeffrey Sluggett of Bloom Sluggett PC in Grand Rapids, any such effort to establish a moratorium would require additional work by the board.
Montcalm Township, a zoned community, already has a section on wind energy and wind turbine construction adopted within its township zoning laws.
According to the Michigan State University (MSU) Extension, which cites the “doctrine of legislative equivalency” legal principle, an ordinance can only be amended/suspended by another ordinance, meaning a moratorium can only be enacted by adoption of an ordinance.
While some Michigan communities have attempted to enact a moratorium by resolution – including locally in Douglass, Maple Valley, Pine and Sidney townships – MSU Extension reports it is “well-established” case law in Michigan that an ordinance cannot be suspended by resolution.
While some residents in the community have asked for a moratorium of at least a year, Crowley advised the township board follow the guidance of its attorney at going no more than six months.
According to an April 20 MSU Extension report, while courts have not struck down moratoria in Michigan, there is no appellate court that has upheld a moratorium in the state for longer than six months.
“Moratoria are supposed to be short, tied to a direct threat to the public health, safety and general welfare, given a specific start and end date, and then removed at the end of that date,” the report reads.
Crowley said he was personally opposed to a moratorium.
“I honestly don’t see a reason for a moratorium in our case,” he said. “We’ve already got an ordinance in place. They (wind companies) would have to jump through quite a few hoops to even think about it – it would take several months for federal and state approvals. But if we do want it, we have to do it properly because we already have an ordinance on the books – we can’t just create a moratorium. The only way you can change that is to pass another ordinance to temporarily replace it.”
In making the motion for the moratorium, Cousineau said such a decision is about “looking out for the best interest of the township.”
“Let’s say hypothetically someone comes in with a special use permit for a wind turbine, but if we deny it on our grounds, we open ourselves up to a lawsuit,” he said. “I think it just creates a huge nightmare, regardless of how it is approached. We need to take a step back and make sure the ordinance can’t be used until we establish a good one.”
“We’ve been listening to the people and the people want this,” Hyde added. “I think we need to move forward.”
In voting against the moratorium, Shearer said she shared the same views as Crowley.
“I don’t think a company is going to come in and try to get a permit from us,” she said. “Our ordinance doesn’t fit what they want right now.”
Currently, Montcalm Township’s wind ordinance limits turbines to 400 feet in height with a setback from any property line of a distance equal to the height of the turbine, with a minimum noise level of 55 decibels as measured from any property line.
Crowley said the board will now have to schedule a public hearing, which is required when amending or adopting an ordinance, and requires at least 14 days published notice in advance of the meeting in the newspaper.
Crowley said in going forward, Planning Commission Chairman Richard Karnatz will be recusing himself at meetings from all discussions and votes related to wind development. Crowley said this update comes on the advice of the township attorney due to Karnatz having signed a development-phase lease agreement with Apex, which pays property owners an unspecified amount per acre annually, after further review of the Planning Commission bylaws.
“He can’t discuss it, he can’t be involved in any conversations and he can’t vote on any special use permits,” Crowley said.
On Aug. 5, 2020, the Planning Commission voted unanimously to review and amend the township’s wind ordinance after Apex expressed interest in Montcalm County as the host of its next potential commercial wind farm. However, Karnatz signed his lease agreement in March 2020, and once that revelation came to light, several township residents came forward stating they felt that resulted in a conflict of interest.
While Karnatz has never denied signing the lease, he has remained steadfast that he does not believe his decision was a conflict of interest. Regardless, Crowley said Karnatz will not partake in such discussions and decisions going forward.
“Dick will recuse himself from all conversations – he’s still on the board, he’s still the chairman – but he has to recuse himself from any other discussion on that,” he said.
According to Crowley, Karnatz is the only member of either the Planning Commission or township board to have signed a lease with Apex.
When asked to elaborate as to what led to the decision for recusal, Crowley said he was not at liberty to discuss it due to attorney client privilege at the request of Karnatz.
The Planning Commission was previously scheduled to meet May 5 for a special meeting to discuss continued efforts to amend the township’s current wind ordinance, but that meeting was canceled and Shearer said it has now been rescheduled for June 2. According to Crowley, the change was made “because there was a request for a special public hearing.”
The next regular meeting of the Planning Commission, which meets quarterly, is scheduled for Aug. 4.
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