PINE TOWNSHIP – When the Pine Township supervisor recommended in September to hire a specific law firm to handle wind energy ordinance-related work, the decision appeared to have been all but finalized days earlier.
Meanwhile, the attorney for the law firm that Pine Township later actually voted to hire shared candid thoughts about “the growing debate in communities across Michigan and around the country about the extent to which municipalities can and should regulate through zoning the construction and operation of wind energy farms” and added, “because wind energy companies have deep pockets, litigation is a real possibility if a wind energy company is denied the ability to operate.”
These are some of the discoveries made as a result of a Freedom Of Information Act (FOIA) request made by the Daily News to Pine Township.
Pine Township Supervisor Bill Drews recommended his township board hire Okemos-based law firm Fahey Schultz Burzych Rhodes to help with wind energy work; however, the matter was tabled at the Sept. 13 board meeting after concerns were voiced by both township officials and residents. At that same meeting, Drews said the Fahey firm had been recommended to him, but he repeatedly declined to answer audience questions about who made that recommendation. After the meeting had ended, the Daily News asked Drews the same question, which Drews again declined to answer, citing “attorney-client privilege” and asking the newspaper, “Do you even understand what attorney-client privilege is?” Drews finally told the newspaper that it was the township’s own current law firm of Dickinson Wright that recommended the township hire Fahey.
The township board on Oct. 11 voted instead to hire the Grand Rapids-based Foster Swift law firm to help with wind ordinance work. After that meeting, the Daily News asked Drews for copies of bid information the three law firms had submitted to the township. Drews declined to provide this information, again confusingly citing “attorney-client privilege.” The Daily News then submitted a FOIA request for the information (while also noting to Drews that Pine Township was not a client of any of these three law firms at the time the information was submitted and therefore attorney-client privilege did not apply). Drews did not respond, but Clerk Marla Sprague provided the requested information to the newspaper this past Friday.
The FOIA results show attorney William “Bill” Fahey sent a letter to Drews on Sept. 9 which made it sound as if the township had already all but officially agreed to hire the Fahey law firm.
“Thank you for selecting Fahey Schultz Burzych Rhodes PLC to represent Pine Township,” Fahey wrote. “The scope of our engagement includes wind energy matters. We will do our best to provide timely legal advice and representation within the scope of the engagement. This letter confirms the terms of our agreement to represent Pine Township. You will be our primary contact in this engagement and I will be the primary attorney responsible for this engagement. Our time and costs will be charged as described in the enclosed Standard Terms, which are incorporated in this letter. My current hourly rate is $305. We appreciate the confidence you have in us and look forward to working with you. If you have any questions about this letter, please do not hesitate to call me. If you agree with the above, please return a signed copy of this letter so we can officially begin to represent Pine Township’s interests.”
Drews forwarded Fahey’s emailed letter to his fellow township board members on Sept. 10, the Friday before the board’s Monday meeting on Sept. 13.
“Would like to have this letter of engagement added to the agenda and packets to have Bill Fahey (Wm. Fahey) law firm approved to be used to avoid the appearance of conflict of interest in regards to energy matters,” Drews wrote. “Their law firm has been recommended by Ron Bultje as a very good firm on ordinances, and many of the local townships have retained them. I suggest retaining Dickinson-Wright for other matters, i.e. Birch Landing.”
Bultje is an attorney for Dickinson Wright, which is Pine Township’s primary law firm.
The Daily News previously contacted Fahey in mid-September to clarify whether his firm currently or has previously represented DTE, as the Detroit-based energy company has been known to purchase other wind energy projects upon completion.
“A very large part of our law firm’s work involves the representation of local governments,” Fahey told the Daily News. “Specifically, we represent more than 150 townships and scores of other local governments (counties, cities, villages, county drain commissioners, and special-purpose government entities) in the full range of municipal law services, including legal assistance to local governments in the development, application, and enforcement of zoning and other ordinances and regulations to govern alternative energy projects.
“Separately, our firm has also represented DTE Electric Co. (formerly the Detroit Edison Company) and DTE Gas Co. (formerly Michigan Consolidated Gas Company) for many years in utility rate cases before the MPSC (Michigan Public Service Commission) and on appeal from those rate cases to the Michigan Court of Appeals and Supreme Court. DTE is a large group of affiliated companies and uses many different lawyers and law firms to provide its legal services. Our work does not involve any representation of DTE in the development of alternative energy ordinances or the application for, review, and approval of alternative energy projects by local governments. We take conflicts of interest very seriously and have made it expressly clear to DTE and our municipal clients that in those matters our legal duties of representation are owed solely to our client municipalities, and both DTE Electric Co and the municipalities have consented to that representation without reservation.
“Apex is the developer of the project proposed in Pine Township and other townships in Montcalm County,” Fahey continued. “Of course, it is possible that this or other projects may be purchased by one of the utilities in the future. Many (but not all) Michigan alternative energy projects developed in recent years have been purchased by either Consumers Energy or DTE after they were constructed. For example, after construction was complete, DTE purchased the Apex project we worked on for Isabella County and also purchased a completed project in Gratiot and Isabella County that was built by a different developer where we represented the three regulating townships. We represented the county and the townships in each of those projects and had no role in the representation of DTE at any point. We also represented the county and the townships when DTE acquired those projects and we helped to assure that their municipal interests were fully preserved and their citizens were protected when DTE made those acquisitions.
“As township attorneys, it is our duty to effectuate the policy decisions made by the Township Board. It is not our role to either promote or advocate against any particular project or energy technology, other than as the Township Board may direct in the interests of the township and its citizens. Our firm’s activities in the municipal regulation of alternative energy have been both extensive and broad, including assistance to municipalities that have approved energy projects and municipalities that have chosen to oppose or limit such projects,” Fahey concluded.
After the Pine Township Board tabled hiring the Fahey law firm on Sept. 13, the township sought two other bids from law firms and ended up voting to hire the Grand Rapids-based Foster Swift law firm, while also considering the Grand Rapids-based Mika Meyers law firm. Here’s a look at information submitted by those two firms to Pine Township, according to the results of the Daily News FOIA:
Foster Swift attorney Leslie Abdoo sent an email to Drews on Sept. 16, writing, “Bill – it was a pleasure speaking with you. Attached please find a proposal outlining our firm’s experience and specialization with alternative energy, particularly wind, municipal projects.”
Drews emailed Abdoo on Sept. 30, writing, “I want to make sure that we also are aware of any potential involvement you may have with representing energy entities such as DTE, Consumers Electric, etc. where a conflict of interest could exist, real or not, that might be brought up in the future. Some of this may be covered, but just to make sure. Also, what is your position on conflicts of interest in general as to the board and the planning commission?”
Abdoo responded that same day, writing, “We run firm-wide conflict checks for every client before entering into an engagement. My practice specifically does not involve representing any utility companies related to alternative energy projects; I have only been on the municipal side of these matters.
“Typically, Planning Commissions have conflict of interest provisions in their bylaws and I have drafted many of these,” she wrote. “I have also routinely drafted and advised township clients on township-wide conflict of interest/ethics ordinances that apply to all officers in the township (i.e. Township Board, PC, ZBA, Board of Review members and any township committees whether appointed or elected). There are a few state statutes governing conflicts of interest as to public officials, but often municipalities will provide more specific requirements by ordinance and procedures for when a conflict arises. Generally speaking, a conflict could arise when there is a matter pending before a board, commission or committee where a member (or a person in the member’s immediate family) has a direct pecuniary interest in the matter or in the outcome of the matter, if such interest would result in an incompatibility between the member’s private interests and the member’s fiduciary duties to the office. Of course, I am happy to work through these issues with the township as potential conflicts arise.”
According to the bio provided by Abdoo to Pine Township, Foster Swift has almost 20 years of experience in developing expertise in wind energy. Abdoo said her fee to the township would be $250 per hour for wind energy counsel, as well as for civil litigation.
“Foster Swift’s attorneys have helped dozens of Michigan municipalities develop zoning standards for wind energy farms and other energy providers; adopt temporary moratoria on new energy developments, when necessary; process applications for special land use permits submitted by developers; handle litigation or administrative appeals filed by developers or neighboring landowners; and enforce zoning requirements,” the bio stated. “We work closely with local officials to navigate these controversial issues, which often draw large crowds and media attention at meetings.
“As the popularity and profitability of alternative energy increases, Michigan townships are seeing increasing numbers of special land use requests from wind energy developers. It’s important that municipal boards consider these competing interests as they consider special land use permits (SLUP) for potential wind farm projects. Because wind energy companies have deep pockets, litigation is a real possibility if a wind energy company is denied the ability to operate. In order to succeed in a lawsuit, municipalities must act thoughtfully, strategically and compliantly when considering a SLUP application, including having an effective zoning ordinance in place and acting in accordance with the Open Meetings Act, among other things. This includes both in having a solid ordinance and process in place to consider applications as they come, and to fight back in the event litigation ensues. Unfortunately, wind energy farm litigation is a reality that many municipalities will have to grapple with over the coming years. After all, there is a massive amount of money at stake as the industry races to expand.”
Locally, Foster Swift has represented Sidney Township with its recently approved wind ordinance. Other Foster Swift wind ordinance clients in Michigan include the townships of Almer, Bridgehampton, Denmark, Elkland, Ellington, Elmwood, Garden, Garfield, Handy, Joyfield, Juniata, Kingston, Lake, L’Anse, Larkin, Lincoln, Marion, Merritt, Ogden, Otisco, Riga, Sand Beach, Seville, South Haven, Stockbridge and White Oak and the counties of Clinton, Huron, Schoolcraft and Tuscola.
“Here is an example of how Foster Swift attorneys, with the assistance of co-counsel for the townships’ insurance carrier, successfully led the fight to uphold the townships’ rights to regulate how land within their townships is used,” the bio stated.
“In late August 2018, an 18-month long lawsuit against Almer and Ellington Townships which was brought by a subsidiary of wind energy giant NextEra Energy Resources LLC was dismissed by the United States District Court for the Eastern District of Michigan, North Division.
“The case stemmed from NextEra’s efforts to build a wind energy project – wind turbines on private property – in the townships. NextEra, which is the largest generator of wind energy in the United States, entered into agreements through its subsidiary, Tuscola Wind Energy III LLC with landowners for use of their property for the project.
“Because of the nature of the project, Tuscola Wind was required to obtain SLUPs from the townships pursuant to the townships’ zoning ordinances. Tuscola Wind applied for a SLUP from Almer Township, which was denied. Tuscola Wind also applied for a SLUP in Ellington Township, which was not considered in light of a moratorium on such projects that was passed by the township while it considered adopting amendments to its zoning ordinance.
“Tuscola Wind filed lawsuits against each township, making various arguments that the townships had acted improperly in their consideration (or in the case of Ellington Township, the lack of consideration) of its SLUP requests.
“During the pendency of the litigation, Ellington Township completed its review of its zoning ordinance and adopted amendments that included more comprehensive requirements for wind energy projects. Ellington then informed Tuscola Wind that its request would be considered under the new ordinance, not the one in effect at the time the request was submitted.
“In the lawsuits, Tuscola Wind asserted a number of claims, including that procedural due process violations occurred, that it was denied equal protection, that the Zoning Enabling Act was violated, and that violations of the Open Meetings Act occurred.
“Foster Swift represented the townships both before the lawsuits were filed – helping them to exercise their rights and perform their duties in consideration of the SLUP applications – and during the litigation. Counsel for the townships brought motions for summary judgment, arguing that the cases should be dismissed without need for a trial.
“For example, the townships argued that Tuscola Wind’s procedural due process claim was meritless because Tuscola Wind had no property interest—a prerequisite for such a claim—in its SLUP application. In other words, if no property interest exists, there can be no deprivation of it in violation of due process. On this, and all other substantive arguments, the courts agreed with the townships.
“Tuscola Wind’s claims were dismissed, or deemed moot, and the townships’ actions in considering the SLUP applications were upheld.
“These cases, and the actions that preceded them, are a reflection of the growing debate in communities across Michigan and around the country about the extent to which municipalities can and should regulate through zoning, the construction and operation of wind energy farms. On the one hand, wind energy farms can bring jobs and money to a community. On the other hand, many perceive wind turbines to be unwelcome nuisances.
“Additionally, these cases emphasize the great deference that courts give to municipalities when reviewing a municipal board’s legislative decisions and interpretations of its ordinances, including when those decisions are controversial,” the Foster Swift bio concluded.
Attorney Ronald Redick of the Mika Meyers law firm emailed his letter of interest to Pine Township on Sept. 30, noting that Drews had contacted him the week prior. Redick listed his hourly rate as $350 and said he would not require a retainer from the township.
“Mr. Drews indicated that perceived conflicts of interest could be a concern if our law firm had performed work for wind energy companies,” Redick wrote. “On that point, I mention the following, with regard to our firm’s representation of companies that are involved in the wind energy industry:
“1. I have not personally performed any work for any client in the wind energy industry.
“2. Our firm has not worked and does not work for Apex – the company that is seeking to develop a utility-scale wind energy project in Montcalm County.
“3. I am working for Douglass Township right now, on wind energy matters, which is adverse to Apex.
“4. Consumers Energy Company and DTE are past and current clients of our firm. However, we have never represented Consumers or DTE in wind energy matters. In fact, we worked on behalf of Mason County when Consumers was seeking to develop the Lake Winds Energy project in Mason County. In other words, we were adverse to Consumers Energy in that matter.
“5. Our firm previously represented Heritage Sustainable Energy LLC in connection with its proposed development of a wind energy system in the Upper Peninsula. However, that representation was discontinued approximately 2.5 years ago.
“6. Our firm has not represented any other company involved with the wind energy industry.
“In short, we have no conflicts that would prevent us from representing Pine Township in wind energy matters,” Redick concluded.
The Daily News contacted Redick to clarify his comment about Douglass Township being “adverse to Apex.” Redick said his comments pertained to the Rules of Professional Conduct that, among other things, prohibit a lawyer from representing two different parties where doing so would present a conflict of interest.
“It would present a conflict of interest for a lawyer to simultaneously represent Apex while also representing a township in which Apex is attempting to establish a utility-scale wind energy project,” he said. “The township and Apex would have different goals and objectives, and so it would not be permissible for a lawyer to serve them both at the same time. The common terminology for referring to this type of situation is that Apex would have interests that are ‘adverse’ to those of the township.
“When I spoke of my representation of Douglass Township being adverse to Apex, I was acknowledging that my law firm has decided to assist Douglass Township with promoting the township’s goals and objectives with respect to wind energy projects, and therefore cannot and will not represent Apex in these same types of matters,” Redick said. “The same would be true if our firm was hired to represent Pine Township in wind energy-related matters. Apex would be considered an adverse party because our duty would be to represent the interests of the township only; not Apex’s.”
In Redick’s attached bio to Pine Township under “wind energy experience,” he wrote that he had worked with Hankard Environmental “to successfully conduct multi-year post-construction sound study, following end of lawsuit (in Mason County).”
Wisconsin-based Hankard Environmental has been working closely with Apex regarding the wind developer’s Montcalm County wind farm plans. Apex hosted a Zoom community forum this past February with Mike Hankard as one of their turbine noise experts (watch here: youtube.com/watch?v=c4bKtiBhJ4c).
Hankard sent a May 28 email to Pierson Township on behalf of Apex. The 43-page email offered multiple “suggested edits” noted in red text regarding the township’s wind ordinance. Hankard called portions of that township’s ordinance “technically incorrect, unworkable in the real world, onerous or duplicative and unnecessary.”
Hankard was also featured at an Apex-hosted “Montcalm Wind Meet the Expert Breakfast” on June 1 at McKenna’s in Lakeview, at which he talked about turbine sound.
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