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‘We can referendum this for 1,000 years’  

Credit:  Attorney: Douglass Township can fall back on never-published, improperly noticed 2017 wind ordinance | By Elisabeth Waldon | Daily News | April 01, 2022 | www.thedailynews.cc ~~

DOUGLASS TOWNSHIP – The township’s attorney is proposing the adoption of a two-part ordinance for the township to fall back on if a pending new wind energy ordinance goes to a voter referendum.

During Wednesday’s Douglass Township Planning Commission meeting, attorney Ron Redick suggested the township approve a bifurcated ordinance to include portions of the township’s 2017 wind ordinance – an ordinance that was improperly noticed and never published.

The Douglass Township Board voted 5-0 to approve a wind ordinance in November 2017, but didn’t properly publish a legal notice before the public hearing and never published a legal notice announcing the adoption of the new ordinance.

While township residents and their attorney, Joshua Nolan of Ohio, believe this renders the 2017 ordinance null and void, Redick has repeatedly said no court will entertain this line of thinking because too much time has gone by.

“I have analyzed that for the township and determined that claim would not succeed because it’s so stale,” Redick reiterated during Wednesday’s Planning Commission meeting. “But nonetheless, as a kind of belt and suspenders approach to that, we bifurcated those 2017 standards into a separate ordinance for separate adoption, but it wouldn’t take effect unless there was some sort of effort that was successful to overturn the provisions of the new ordinance that you’re working on.

“I think the 2017 ordinance would survive, regardless, if in fact there’s a referendum on the new (wind) provisions,” he repeated. “What this (proposed new bifurcated) ordinance does is to address that argument in another way to say that if for some reason the new (wind) provisions are invalidated by referendum or otherwise, we’re readopting them now, but they won’t take effect unless or until there’s some sort of referendum or otherwise that causes the new provisions not to take effect. That way there won’t be a complete absence of wind energy provisions in the ordinance.”

The Daily News asked Redick on Thursday whether anything could stop residents from also taking the bifurcated ordinance to a referendum, in addition to the pending wind ordinance.

“MCL 125.3402 (part of the Michigan Zoning Enabling Act) applies to all zoning ordinance amendments,” Redick answered (which confirms that residents could referendum the bifurcated ordinance as well).

Planning Commissioner Rick Baldwin protested Redick’s suggestion Wednesday.

“Everybody’s pretty much agreed, including you in several instances, that that 2017 (ordinance) is junk,” Baldwin told the attorney. “There’s no protections in there whatsoever for the township at all – none.”

“I agree that those provisions (from 2017) are suboptimal,” Redick admitted. “But what’s even more suboptimal is to have nothing on the books and then you open the door to be sued automatically because you’re clearly exclusionary to everything. That’s a worse situation.”

“Not much,” Baldwin responded.

“Well, it is, substantially,” Redick countered.

WIND WORK

The Planning Commission appeared to be finalizing their draft wind ordinance Wednesday and township planner Paul LeBlanc said he would provide a final version to them by today (Friday). A public hearing on the draft appears to be just around the corner; although the Planning Commission did not vote on Wednesday to schedule one, they are required to publish notice of a public hearing in the Daily News.

The draft ordinance currently limits turbines to 500 feet high with setbacks of at least 1,500 feet from non-participating property lines and setbacks of one mile from lakes. Turbine sound is limited to 45 decibels during the day and 40 decibels at night.

Planning Commissioner Todd Wells was absent from Wednesday’s meeting. Planning Commissioner Paul Olson was present at the table, but he did not vote or participate in the discussion as he has signed property leases with Apex Clean Energy.

Vice Chairwoman Tammy Sweeris, who was appointed to the Planning Commission in January, had the most to say about the draft, asking repeated questions and clarifications of the attorney and planner while the majority of her fellow planners sat silent.

Sweeris made a motion to remove a lengthy portion of language from the draft which she said contained outdated studies about wind energy. The motion passed 3-1 with Sweeris, Pat Althoff and Becky Sowles voting “yes” and Baldwin voting “no.” Chairman Jack Jeppesen didn’t vote as there wasn’t a tie.

Sweeris expressed her displeasure with “Lmax” language being included in the sound portion of the draft.

“I’m pretty frustrated with all the sound stuff inserted in here,” she said. “A lot of this is not attainable.”

Baldwin said the Planning Commission already decided on the sound language, to which Sweeris responded, “No, we did not.”

“We’ve been at this for a number of meetings,” LeBlanc noted. “I would respectfully suggest that we focus on the changes that have been made since the last meeting since the Planning Commission consensus was that the rest of it reflected the changes over the last several months. I understand there’s some new members, but if we continue to go back and rehash what has been in the document for at least six months, chances are we’ve never going to get through this.”

“The sound issues are pretty substantive,” Sweeris responded.

“I understand that, but they were discussed extensively,” LeBlanc repeated.

“I’ve had them since January,” Sweeris said. “We’ve not all had six months to look at it. I take exception – and whoever drafted the sound information in here was doing so on an exclusionary basis because some of the protocol cannot get met. There are definitely items in here that cannot be met by any known sound firm at this time.”

Sweeris suggested having a third party look at the “tonal information and sound component” of the draft and then give a presentation to the township. Redick responded to this by noting that the township has already worked with acoustical engineers to create “capable” sound language.

“I deal with acoustics a lot,” Sweeris responded. “There’s conflicting information. I think we’ve had too many people potentially dabbling in too many things.”

“They (the township) paid Spicer Group a lot of money to come up with this,” Baldwin pointed out.

“Well, I can tell you this is very biased and some of this is not doable,” Sweeris reiterated.

“I think Spicer Group was not in any way biased against wind energy when they wrote this,” Redick countered. “They tried to write something that was appropriately nonexclusionary but yet held companies to appropriate sound standards.”

Sweeris made a motion to approach the township board with this topic, but her motion didn’t receive support and so it died.

SPLIT OPINIONS

During public comment, multiple residents warned the Planning Commission that they plan to referendum the draft if the township board moves forward with it.

“What makes you think this ordinance won’t be voted down?” asked township resident Eric Tester. “You never looked at an ordinance for what the people want. Your ordinance is going to get voted down – you know it. We have the votes to shut this down.

“You want to bring in a 2017 ordinance? Go ahead,” he said. “You think this is going to help this community? When it comes down to this, the voters are going to decide this. You need to listen to your voters. We know that we can fight this. We can referendum this for 1,000 years. (Do) you want to bring in the 2017 ordinance and blackmail this community? Let’s see how well that works out because I think that’s a big mistake.”

On the other side, township resident Emily Rutherford spoke up in support of wind energy.

“These 500- to 600-feet towers at 42 percent capacity, they power up to 940 homes,” Rutherford said. “This is the future, whether we want it to be the future or we don’t want it to be the future. The world is going to end up being powered on natural resources and if we don’t follow suit of pretty much everyone who is trying to modernize energy, then we’re going to get left behind.

“These towers pay,” she said. “They will increase the revenue of members of the community and they will better the environment and the quality of the future for youth and everybody else to come into the world.”

Source:  Attorney: Douglass Township can fall back on never-published, improperly noticed 2017 wind ordinance | By Elisabeth Waldon | Daily News | April 01, 2022 | www.thedailynews.cc

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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