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Exclusionary zoning in Michigan

Over the past several months, officials in more than half the townships in Montcalm County have been working to put in place either new or amended wind energy ordinances.

This is in response to Apex Clean Energy’s proposed construction of 75 or more 600-foot or taller wind turbines across these townships.

Quite often township officials have claimed they can regulate but not prohibit Apex’s wind development plans for their township. “If we don’t give Apex what it wants,” those officials claim, “we’ll get sued.”

When commenting on Sidney Township’s proposed wind ordinance at its June 21 meeting, members of the Montcalm County Planning Commission told Sidney Township officials much the same thing. By both township and county officials’ statements, they are implying that if Apex sues a township, that township will lose and end up giving Apex what it wants anyway, after spending lots of money on attorneys’ fees. This may very well be what Apex or others are telling them as well. But it is not the truth.

The provision of Michigan law that wind companies rely on to create concerns about lawsuits is part of the Michigan Zoning Enabling Act. It reads as follows:

“A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use within either that local unit of government or the surrounding area within the state, unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.” – MCL 125.3207.

A township that violates this provision is deemed to be guilty of “exclusionary zoning.” However, to defeat a claim by a wind company that a wind ordinance is exclusionary, a township only needs to establish one of the following: a) wind turbines are not totally prohibited in the township; b) there is no demonstrated need for wind turbines in the township; or c) there is no appropriate location for wind turbines in the township.

First, townships can avoid an exclusionary zoning claim by adopting wind energy ordinances that allow some wind turbines on a limited basis. Townships do not have to adopt ordinances that allow Apex to develop wind turbines based on its business model. Even if a court finds some provisions of a wind ordinance to effectively exclude wind turbines from a township, all other provisions will remain effective. The court will not throw out the entire ordinance and allow Apex to do whatever it wants. So, for example, even if a setback standard is held to be too extreme, other requirements of the wind ordinance such as limits on height, noise, and shadow flicker, will remain as long as they are designed to protect the health, safety and welfare of the township’s residents.

Second, Apex cannot claim there is a “demonstrated need” for wind turbines in Montcalm County, when there is already more than adequate electrical service available to every residence and business. In the recent case of Tuscola Wind III LLC vs Almer Charter Township, a U.S. District Court judge upheld a township wind ordinance on exactly this basis. In fact, to assure everyone of an adequate supply of electricity, DTE is currently building a new $1 billion natural gas electrical generation plant in St. Clair County, Michigan.

And third, the rural areas of Montcalm County feature more than 140 lakes, thousands of acres of state game land, and thousands of residences, all of which will be adversely impacted by a project like the one proposed by Apex. As a result, a case can easily be made that there are few, if any, appropriate locations for Apex’s wind turbines anywhere in most Montcalm County townships. After all, one essential purpose of zoning ordinances is to protect neighboring properties from incompatible uses.

For these reasons, threats of a lawsuit should not be the basis for giving Apex what it wants. Instead, as township officials consider adopting new or amended wind energy ordinances, their sole responsibility is the health, safety, and welfare of their residents, nothing more and nothing less.

Robert Scott is a retired real estate development lawyer and a part-time resident of Sidney Township.

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