The Maple Valley Township Planning Commission made progress on continuing to update its wind energy ordinance Thursday evening, with the help of an attorney.
Chairman Roger Becker, Vice Chairwoman Andi Knapp, Lee Frandsen and new members Ann Scoby Petersen and Dennis Dombroski were all present. Randy Davis recently resigned as a planner, meaning two Planning Commission seats are currently vacant (the other resulting from the death of Carolyn Kelsey).
Kyle O’Meara, an attorney with Fahey Schultz Burzych Rhodes in Okemos, was also present and he reviewed multiple proposed changes to the wind ordinance as currently drafted (after the township’s previous ordinance was rescinded in March due to public outcry).
Proposed changes to the new ordinance, which is still being drafted, include:
• A turbine height limit of 500 feet.
• Setbacks of 1.5 times a turbine’s tip height from participating properties, 3 times the tip height from non-participating lot lines, half a mile from local lakes, and 400 feet or 1.5 times the tip height from roads.
• A noise limit of 45 decibels at non-participating property lines and 55 decibels from occupied buildings for participating properties.
• A shadow flicker limit of 30 hours per year for participating properties and zero shadow flicker for non-participating properties.
• Lighting and aircraft detection lighting system (ADLS) requirements for turbines (if approved by the Federal Aviation Association).
• A continuing enforcement escrow deposit so money would be made available from a wind developer to allow the township to hire a third-party expert to make sure any wind project is meeting township standards.
• An application escrow account so money would be made available from a wind developer to allow the township to hire a planner or attorney to review any wind energy project application.
• A transportation plan requiring a wind developer to provide financial security for any damages sustained to local roads during construction of a wind energy project.
• A complaint resolution plan to allow for a process for public complaints to be addressed by a wind developer and the township.
• Liability insurance from the wind developer during life of project to protect the township.
• A continuing decommissioning security and a decommissioning analysis by the wind developer (including a decommissioning estimate and an itemized decommissioning list provided to the township).
CONFLICTS OF INTEREST
O’Meara also reviewed a letter the township received from Ohio-based attorney Joshua Nolan regarding conflicts of interest.
“Conflict of interest law in Michigan is, I would say, very undefined,” O’Meara noted. “I would say I agree with about 95 percent of the letter (from Nolan) with a few distinctions, maybe even higher than 95 percent.”
O’Meara primarily disagreed with a standards of conduct law Nolan cited (MCL 15.342) and regarding whether those rules apply to Planning Commission members (Nolan thinks it doesn’t, but O’Meara thinks it does).
O’Meara also disagreed with Nolan’s statement that if a township official has a conflict of interest and acts anyway that this would result in criminal penalties.
Becker asked whether a township official has a conflict of interest if he or she has signed a lease with a wind developer before voting on a township wind ordinance.
“If you have a lease, you would be able to vote on an ordinance of general applicability in the township which could regulate wind turbines,” O’Meara responded.
“Let’s say you own a farm and you are considering a zoning amendment related to the agricultural district which could in some ways reduce setbacks, which may give you an indirect benefit but also applies to the rest of the township,” he elaborated. “Same if you own a single-family dwelling and you’re amending the zoning ordinance for the residential district, you’re reducing setbacks, you’re allowing different things to be built in the residential district. There’s facets – there’s general applicability and the Zoning Enabling Act. If you pass an ordinance that people do not like, there’s a referendum opportunity to referendum the ordinance. I have not found case law that would be precedential that would say you cannot vote on an ordinance of general applicability because of what I would say is under the remote interest doctrine.
“But with that being said, your fiduciary duties govern you in that situation,” he added.
O’Meara encouraged any township official who believes he or she may have a conflict of interest to speak with him first before deciding whether they should recuse themself.
“Conflicts of interest are relatively private conversation,” he said. “I would ask you to come to me directly by yourself and you can disclose information that you may feel uncomfortable disclosing in public.
“Conflicts of interest are a very case-by-case, specific analysis,” he added. “I kind of geek out on this because it’s one of the more complex areas of the law and it’s not tested out in courts.”
About 70 people were present in Thursday’s audience, two of whom asked the Planning Commission to consider extending the township’s current wind energy moratorium (which is set to expire in September).
“Can we get a year’s extension on our moratorium? “ Penny Bassett of Maple Valley Township asked.
Robin Poulsen of Maple Valley Township agreed, noting that she also brought this topic up in June.
“We haven’t had anything said about it,” she said.
“The township board’s gotta do that,” Frandsen responded.
“I was also told that they were gonna wait and see how far we got before they decided to go ahead and continue it,” Petersen added. “Obviously, we need to continue it.”
The next Maple Valley Township Board meeting is scheduled for 7 p.m. today.
Steven Poulsen of Maple Valley Township (Robin’s brother-in-law) noted that Carson City-Crystal Area Schools district voters last Tuesday approved a zero mill bond for the school district which will generate $5.65 million from the wind turbines in neighboring Gratiot County with no tax increase to residents (the final vote was 628 “yes” votes to 310 “no” votes).
“I’m thinking a lot of the school districts in this county would like to get in on some of that too,” he said.
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