United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER AFFIRMING THE DECISION OF THE ALMER
CHARTER TOWNSHIP BOARD OF TRUSTEES
L. LUDINGTON United States District Judge
February 15, 2017, Plaintiff Tuscola Wind III, LLC,
(“Tuscola”) filed a complaint naming the Almer
Charter Township and that Township's Board of Trustees as
Defendants. ECF No. 1. Count One of the Complaint is the
“Claim of Appeal.” Compl. at ¶¶
100-124. Tuscola Wind's claims arise out of
Defendants' denial of a Special Land Use Permit
(“SLUP”) that would have permitted Tuscola Wind
to construct the “Tuscola III Wind Energy Center”
in Tuscola County, Michigan. Compl. at 6. Oral argument on
the claim of appeal was held on October 5, 2017. For the
following reasons, the Board of Trustee's denial of the
SLUP will be affirmed.
Wind III, LLC, is a Delaware limited liability company, which
is indirectly wholly owned by NextEra Energy Resources, LLC.
Tuscola Wind SLUP App. at 1, ECF No. 30, Ex. B. Tuscola is
attempting to build the “Tuscola Wind III Energy
Center” in Tuscola County, Michigan. Id. The
project, if completed, would include 55 wind turbines in
Fairgrove, Almer, and Ellington Townships, and would produce
enough energy to supply 50, 000 homes with wind energy.
Id. In its SLUP application, Tuscola explained that
“[t]he Project facilities are to occupy 15.2 acres of
land, and will be serviced by 6.6 miles of access roads,
occupying 12.9 acres of land.” Id. at 2.
to submitting the SLUP application, Tuscola had entered into
agreements with 87 landowners (representing 192 parcels of
land) for the use of their property for the project.
Id. Those individuals are described as
“participating landowners.” Id. Thus, at
the time the SLUP application was submitted, Tuscola had
already identified the ideal number of and locations for wind
turbines in Almer Township, categorized parcels of land as
necessary or unneeded, and secured access to the parcels it
believed were required for the proposed project. The present
dispute centers on Tuscola's attempt to secure SLUP
approval for the 19 wind turbines that Tuscola wishes to
build in Almer Township.
Almer Township Zoning Ordinance characterizes wind energy
systems as special land uses. As such, Tuscola was required
to seek a Special Land Use Permit (“SLUP”) from
the Township for the project. See Almer Zoning Ord.
Art. 24, ECF No. 30, Ex. A. Pursuant to Section 2401 of the
Zoning Ordinance, the first step in receiving approval for a
wind energy system is to submit a SLUP application to the
Township's Planning Commission. Id. at §
2401. Upon receipt of the application, the Planning
Commission is required to hold a public hearing within 45
days. Id. After the public hearing, the Planning
Commission recommends either granting or denying the
application to the Township Board and must state its reasons
for the decision. Id. Once the Planning Commission
issues its recommendation, the Township Board will render a
decision on the SLUP application. Id.
1522 of the Almer Township Zoning Ordinance provides special
requirements for SLUP applications involving a wind energy
system. Id. at § 1522. Among other things, the
applicant must provide an escrow account to cover the
Township's costs and expenses associated with the SLUP
zoning review and approval process. Id. at §
1522(C)(1). Likewise, the applicant must fund and submit
environmental and economic impact studies (if requested by
the Township). Id. at § 1522(C)(2)-(3). The
application must include a site plan which specifies the
design characteristics of the turbines, safety features,
security measures, and a lighting plan. Id. at
Zoning Ordinance also addresses noise emissions from the
Noise emissions from the operations of a [Wind Energy
Conversion System] shall not exceed forty-five (45) decibels
on the DBA scale as measured at the nearest property line of
a non-participating property owner or road. A baseline noise
emission study of the proposed site and impact upon all areas
within one mile of the proposed WECS location must be done
(at the applicant's cost) prior to any placement of a
WECS and submitted to the Township. The applicant must also
provide estimated noise levels to property lines at the time
of a Special Use application.
Id. at § 1522(C)(14).
“[a]ll efforts shall be made not to affect any resident
with any strobe effect or shadow flicker.” Id.
at § 1522(C)(20).
Zoning Ordinance provides the general admonishment that
“[t]he wind energy conversion system shall not be
unreasonably injurious to the public health and safety or to
the health and safety of occupants of nearby
properties.” Id. at § 1522(C)(7).
September 23, 2016, Tuscola submitted its SLUP application to
the Almer Township Planning Commission. Several portions of
the application became points of contention between Tuscola
and the Planning Commission. Those sections will be
SLUP application, Tuscola referenced three studies which
analyzed the “impact wind farms have on property
values.” SLUP App. at 10. Each study found no evidence
that wind farms have a statistically significant impact on
nearby property values. One study, conducted by the Lawrence
Berkeley National Laboratory, analyzed home sales near 67
wind facilities across nine states. Id. Another
study, conducted by the University of Rhode Island, analyzed
48, 000 home sales that occurred within 5 miles of wind
turbines in Rhode Island. Id. at 11. The third
study, jointly prepared by the Lawrence Berkeley National
Laboratory and the University of Connecticut, reviewed 122,
000 home sales within 1 mile of operating turbines in
Massachusetts. Id. Besides summarizing these three
studies, Tuscola did not include any information or analysis
regarding the possible impact of the proposed wind farm
project on Tuscola County property values, specifically.
attached a Sound Modeling Report as Appendix “D”
to the SLUP application. Sound Modeling Rep, ECF No. 30, Ex.
B. The report begins by quoting the Zoning Ordinance
requirement (reproduced above) which provides that
“[n]oise emissions from the operation of a WECS . . .
shall not exceed forty-five (45) decibels on the DBA scale as
measured at the nearest property line of a non-participating
property owner or road.” § 1522(C)(14). In the
report, Tuscola asserts that “[n]o metric is specified
for this ordinance, so we have assumed a 45 dBA 1-hour
Leq.” Sound Modeling Rep. at 4.
in the report, Tuscola expanded on its decision to construe
the ordinance as involving 45 dBA 1-hour Leq. Tuscola
explained: “Sound pressure levels are constantly
changing. It is for this reason that it makes sense to
describe sound levels over time.” Id. at 5.
The report then defined various ways of measuring sound
levels: “Lmin and Lmax are simply the minimum and
maximum sound level, respectively, monitored over a period of
time.” Id. But more sophisticated measures of
sound levels over time exist:
Ln is the sound level exceeded n percent of the time. . . .
For example, the L10 is the sound level that is exceeded 10
percent of the time, while L90 is the sound level exceeded 90
percent of the time. The L50 is the median and is exceeded
half the time. The L90 is often described as the
“residual” level, describing a condition when
most short-term contaminating sources are removed.
Tuscola defined its preferred metric: “One of the most
common ways of describing noise levels is in terms of the
continuous equivalent sound (Leq). The Leq is the average of
the sound pressure over an entire monitoring
period.” Id. (emphasis in original). Tuscola
The monitoring period . . . can be for any amount of time. It
could be one second (Leq 1-sec), one hour (Leq(1)), or 24
hours (Leq(24)). Because Leq is a logarithmic function of the
average pressure, loud and infrequent sounds have a greater
effect on the resulting Leq than quieter and more frequent
sounds. . . . Because it tends to weight the higher sound
levels and is representative of sound that takes place over
time, the Leq is the most commonly used descriptor in noise
standards and regulations.
Id. at 6.
Tuscola discussed metrics for frequency weighting:
[S]ound pressure levels are expressed in terms of decibels.
Since the human ear is not sensitive to all frequencies
equally, some frequencies, despite being the same decibel
level, seem louder than others. For example, a 500 Hz tone at
80 dB sounds louder than a 63 Hz tone at 80 dB. For this
reason, frequency weightings are applied to sound levels . .
. . The most common weighting scale used in environmental
noise analysis in the A-weight, which more accurately
represents the sensitivity of the human ear at low to
moderate sound energy. An A-weighted sound level is usually
denoted with the unit dBA or dB(A).
the Zoning Ordinance specifies the metric for use in
frequency weighting (dBA), but does not expressly identify
the metric for measuring sound pressure levels. Applying its
preferred metric of Leq 1-hour, Tuscola found that “the
highest modeled sound level at any non-participating property
line, or road adjacent to a non-participating property line
within the Township of Almer is 45 dBA and the highest sound
level at any residence is 44 dBA.” Id. at 9.
SLUP application additionally proposed that the
“electrical power collection system, ” which
would transport the energy produced by the turbines, include
aboveground power lines. SLUP App. at 13. The Zoning
Ordinance requires all electrical connection systems and
power lines from wind turbines to be located below ground,
but permits the Planning Commission to waive that
requirement. See Zoning Ord., at § 1522(C)(15).
assist in its consideration of the application, the Township
retained the Spicer Group, Inc., an engineering consulting
firm. On October 25, 2016, the Spicer Group sent Tuscola an
email requesting clarification and/or additional information
regarding several aspects of the application. Spicer Oct. 25
Email, ECF No. 30, Ex. C. Three of the Spicer Group's
concerns are relevant. First, Spicer questioned several
aspects of the sound emissions report, including how Tuscola
chose the 1-hour Leq as the proper metric. Id. at 2.
The Spicer Group further asked when Tuscola would be
submitting an economic impact study, indicating concern that
“the property value information provided on pages 10
through 11 of the TW3 SUP Application is not local and not
pertinent to Almer Township.” Id. Finally, the
Spicer Group indicated that Tuscola's proposal to place
the power lines above the ground did not conform with the
Zoning Ordinance requirement that all electrical connection
systems and lines from a wind farm be placed underground.
Id. at 3. The Spicer Group acknowledged that the
Planning Commission has discretion to waive that requirement,
but suggested that Tuscola had not yet sought that waiver.
responded to the Spicer Group's inquiries on October 31,
2016. Oct. 31, 2016, Resp, ECF No. 30, Ex. D. Tuscola
defended its use of the 1-hour Leq metric by asserting that
international standards for measuring sound in the wind
turbine context use that metric. Id. at 4. Tuscola
further noted that the Akron, Ellington, and Columbia
Townships use the 1-hour Leq metric and that past wind power
projects in the area were assessed under that metric.
Id. Tuscola explained that it did not provide an
economic study specific to Almer Township because the
Township had not requested one. Finally, Tuscola defended its
proposal to place the power lines from the wind turbines
above ground. Tuscola explained that construction,
maintenance, and repair are all more difficult and costly for
underground lines. Id. at 6. Similarly, underground
power lines require more cables and have a shorter life
November 8, 2016, the Spicer Group submitted a report to the
Planning Commission analyzing Tuscola's SLUP application.
Spicer Rep., ECF No. 30, EX. F. In the report, the Spicer
Group concluded that Tuscola had complied with many, indeed
most, of the Zoning Ordinance's requirements. But the
Spicer Group did identify a number of outstanding issues.
Among other recommendations, the Spicer Group suggested that
the Planning Commission should require Tuscola to commission
or identify an economic impact study for the proposed Almer
Township project. Id. at 5. The Spicer Group also
noted that Tuscola had not provided information confirming
that the proposed turbines had a braking device which
complied with the Zoning Ordinance. The Spicer Group explained
that Tuscola was seeking an exception to certain Zoning
Ordinance requirements: first, instead of building an 8-foot
fence around the turbines, Tuscola was requesting leave to
keep the structures locked at all times; and, second,
Tuscola was seeking leave to build aboveground transmission
lines. Finally, the Spicer Group indicated that Tuscola's
noise emissions report left several questions unanswered,
including whether the 45 dBA limit was measured to the
closest road, or simply to the closest road adjacent to a
non-participating property. Id. at 7.
November 10, 2016, the Planning Commission held a public
hearing to discuss the SLUP application. Nov. 10, 2016,
Hearing Tr., ECF No. 30, Ex. I. At the hearing, a
representative from Tuscola discussed the project. Among
other things, the Tuscola representative explained why he
believed that 45 dBA 1-hour Leq was the appropriate metric to
use in determining the sound emissions produced by the
turbines. See Id. at 29-35. First, the
representative explained that the 1hour Leq metric was used
by certain international standards and was the metric used by
the manufacturer to model probable sound emissions.
Id. at 31. The representative also explained that
the 1-hour Leq metric was more practical: Leq is used in many
noise emission standards, regulations, and guidelines
(including neighboring townships). More importantly, the 1-hour
Leq metric is not “susceptible to wind gusts or other
extraneous non-wind turbine events, ” unlike the Lmax
metric. Id. at 32.
rest of the hearing, members of the community expressed their
opinions on the proposals. Most speakers communicated
objections to various aspects of the application (if not the
project as a whole), but some expressed support for the wind
energy project. Two sound engineers testified at the hearing.
The first engineer, Rick James, is an employee of e-Coustic
Solutions and was hired by concerned citizens. Id.
at 107. First, Mr. James opined that Tuscola's noise
emissions report likely understated the dBA level at several
property lines. Id. at 108-09. Second, Mr. James
challenged Tuscola's assertion that the noise emissions
provision in the Zoning Ordinance allowed for an averaged
sound level measurement, as opposed to a maximum level:
“[T]he words are very explicit, they say, ‘Shall
not exceed 45 dBA.' When you read law you can't read
into it when the words aren't there. It doesn't say
45 dBA Leq, it does not say 45 dBA average, it says not
exceed 45 dBA.” Id. at 109. Ms. Kerrie
Standlee, the principle engineer for Acoustics by Design,
also testified. Id. at 130. Ms. Standlee
concurred with Mr. James's interpretation of the
[T]he limit is stated in there that the level shall not
exceed 45 dBA. It doesn't give any descriptor, is it
supposed to be the Lmax or - and as was mentioned, an L90 or
an L10 at 50, an Leq, it doesn't specify. Mr. James is
correct in that when something is not specified, you take the
normal interpretation, which would be Lmax. I'm with -
I'm on the City of Portland Noise Review Board and we
have an Lmax standard. It's not specified as the Lmax
it's just - like yours it says it shall not exceed this
level. And that is an absolute level, not - not an equivalent
Id. at 131.
the Planning Commission concluded that additional information
was necessary before the SLUP application could be ruled
upon. Accordingly, the public hearing was adjourned.
after the public hearing, Tuscola sent the Planning
Commission a response addressing several of the concerns
raised by the Spicer Group. Nov. 11, 2016, Prop. Conditions,
ECF No. 30, Ex. J. Tuscola offered to provide a copy of
GE's safety manual and technical documentation to confirm
that the turbines were equipped with a braking device, but
indicated that the documents could be provided only if the
Township entered into a “commercially reasonable
non-disclosure agreement.” Id. at 4. Tuscola
also committed to providing a “baseline noise emission
study” prior to site plan approval. Id.
days later, Tuscola sent another communication to the
Planning Commission further addressing several of the issues
identified by the Spicer Group. Nov. 15, 2016, Resp., ECF No.
30, Ex. K. The response included an economic impact report.
See Economic Impact Rep., ECR No. 30, Ex. K. That
economic impact report discussed the project's probable
financial impact on local jobs, tax revenue, and lease
payments. The report did not specifically identify the impact
the project would have on local property values, but
summarized the studies (previously mentioned in the original
SLUP application) which found no evidence in other states
that existing wind farms lowered nearby property values.
Tuscola also addressed the Spicer Group's concern
regarding security at the turbines. Rather than placing a
fence around the turbines as contemplated by the ordinance,
Tuscola proposed “an alternate means of access control
at the turbines: a locked access door built into the
turbine.” Nov. 15, 2016, Rep. at 5. Tuscola reiterated
its request for permission to construct aboveground power
Tuscola turned to the noise emissions issue. First, Tuscola
discussed whether the 45 dBA limit is measured to the nearest
road, even if the property owners adjacent to the road are
participating in the wind project:
Where a non-participant is adjacent to a participant and the
two are separated by a road, it is logical that the 45 dBA
limit applies at the non-participating property line, which
is also the road center. But where two participating
properties are adjacent but separated by a road, it is also
logical that the 45 dBA limitation does not apply. The
purpose of this subsection is to protect non-participants
from the potential effects of wind turbine sound at the
property line. From a policy standpoint, it makes no sense to
protect those using the road (typically in an automobile)
from wind turbine sound.
Id. at 6.
Tuscola addressed the appropriate sound metric by which to
measure the sound level:
A specific sound level metric is not specified in this
ordinance. The ordinance says that noise emissions from a
WECS “shall not exceed” 45 dBA at a
non-participating property line, but “shall not
exceed” is not a metric; it simply means that, whatever
metric is reasonably applied, that number shall not exceed 45
dBA. Therefore, an interpretation must be made on what is the
most appropriate metric to apply to evaluate this ordinance.
explained that its preferred metric, Leq, is the “sound
metric commonly used in community sound surveys, guidelines,
regulations (including those in neighboring communities), and
standards, and is appropriate for use here.”
Id. at 7
further support of its proposed metric, Tuscola explained
that “[t]he standard for measuring the wind turbine
sound power, IEC 61400-11, requires Leq sound level
measurements” and thus “[an] Leq sound level
limit allows for an appropriate and reasonable ‘apples
to apples' comparison.'” Id. (emphasis
omitted). Tuscola further emphasized that most public health
studies use Leq to define their findings. Id.
Perhaps most importantly, Tuscola explained that nearby
Ellington and Columbia Townships use a 1-hour Leq metric to
regulate sound emissions and that the same metric governed
“compliance evaluations for [previous wind farm
projects] in neighboring townships, including Akron (Leq
specified), Fairgrove (no metric specified in the ordinance),
and Gilford (no metric specific in the ordinance).”
Id. Tuscola additionally noted that the Huron County
and Akron Township ordinances couple “shall not
exceed” language with an Leq metric. Id.
Tuscola articulated why it believed an Leq metric was more
suited for measuring the true impact of wind farm noise
A Leq metric makes more sense here than a short-duration
metric such as an Lmax, which is susceptible to wind gusts
and other extraneous events that result in elevated sound
levels unrelated to the operation of the wind turbine. In
addition, it is not reasonable to determine that a facility
is out of compliance based on a 1-second reading above a
particular limit. The intent of a sound ordinance is
typically to allow for the continued use and enjoyment of the
property and/or residence. For sounds that are of a short
duration and dramatic, such as gun shots, mine blasts, or
pile driving, an Lmax metric could make sense, and is
analogous to a speed limit infraction where an instantaneous
level is necessary to protect the safety of drivers on the
roadway. But for sound sources that are continuous in nature
and do not include dramatic spikes, such as a wind turbine,
using Leq over a given time period is more appropriate. Even
then, as noted above, the measurement will be primarily
determined by any louder noises during the time period.
Id. at 8.
November 17, 2016, the Almer Township Board approved a
“Wind Energy Conversion Systems Moratorium
Ordinance.” Moratorium, ECF No. 30, Ex.
In the moratorium, the Board indicated that applications for
“Wind Energy Conversion Systems may be
proliferating” and so “[t]he Township Board
requires sufficient time for enactment of amendments to its
Zoning Ordinance to establish reasonable regulations
pertaining to the establishment, placement, construction,
enlargement, and/or erection of Wind Energy Conversion
System.” Id. at 2. Thus, the Board enacted a
moratorium, on a temporary basis, on the establishment,
placement, construction, enlargement, and/or erection of Wind
Energy Conversion Systems within the Township and on the
issuance of any and all permits, licenses or approvals for
any property subject to the Township's Zoning Ordinance
for the establishment or use of Wind Energy Conversion
Systems. . . . [T]his Ordinance shall apply to any
applications pending before any Township board or commission,
including the Township Board, Planning Commission or Zoning
Board of Appeals.
Id. at 3.
December 6, 2016, Acoustics by Design, the sound engineering
firm retained by the Township to aid in reviewing the SLUP
application, submitted a memorandum to the Planning
Commission addressing the Zoning Ordinance's 45 dBA
limit. Acoustics by Design Memo, ECF No. 30, Ex. O. The
memorandum, prepared by Kerrie Standlee, addressed the proper
interpretation of the “shall not exceed”
Ordinance 1522 states that the noise radiating from a wind
energy facility cannot exceed a level of 45 dBA at the
nearest property line of a non-participating property owner
or road. It does not however say anything about a noise
metric that is associated with the limit. Because noise can
be quantified in several ways, the omission of that detail
has resulted in some of the Commissioners asking if the limit
was intended to be what is referred to as a
“maximum” noise level limit or if it was intended
to be a limit associated with some other noise metric such as
a statistical noise level limit (for instance, the L01, L10,
L50, or L90 noise level - defined as the level exceeded 1%,
10%, 50% and 90% of a specified time period) or an energy
equivalent noise level (the Leq noise level - the noise
level, which if present continuously, that would have the
same acoustic energy as the time-varying sound level present
during a specified time period).
Id. at 3.
Mr. Standlee opined that the ordinance established a maximum
noise level limit:
Without having access to any information regarding the
ordinance author's intentions relative to the wording
used in the ordinance, I would conclude that the 45 dBA limit
specified in the ordinance is addressing a
“maximum” noise level limit and not a limit
associated with some other noise descriptor. Model noise
ordinances written over the past 50 years have shown that
noise ordinances can be written with a maximum noise level
limit or they can be written with some other noise metric
limit. However, in each case where a metric other than the
maximum noise level is included, the noise metric was
specified in the ordinance. When a noise limit is specified
in an ordinance without reference to any specific noise
metric, it is generally understood by acousticians that the
limit is intended to be a “maximum” noise level
limit and not a limit for a noise descriptor other than the
maximum noise level.
memorandum further explained that, even if a Leq metric were
adopted, Tuscola's proposed 1-hour Leq metric was
While I can agree that it might be reasonable to conclude
that the 45 dBA noise limit in the wind energy facility noise
ordinance could be considered an Leq noise metric limit and
not an absolute maximum noise level limit, I cannot agree
with the consultant that the limit could be a one-hour Leq
noise level limit. . . . Given the relatively short amount of
time required to quantify the turbine sound level, it would
be more reasonable to consider the noise limit in the
ordinance is [sic] related to an Leq metric associated with a
time period that is much shorter than a one-hour time period.
December 7, 2016, the Planning Commission held a second
public hearing. Dec. 7, 2016, Tr., ECF No. 30, Ex. Q. A
Tuscola representative opened the hearing by addressing the
concerns previously raised by the community and the Planning
Commission. In large part, the Tuscola representative
summarized the company's November 15, 2016, submission to
the Planning Commission. A representative of the Spicer Group
was also present. After Tuscola's presentation, members
of the Planning Commission began asking questions of both the
Tuscola representatives and the Spicer Group. One Planning
Commission member, Jim Tussey, appeared to lead the
discussion (the relevant aspects of which will be summarized
Mr. Tussey addressed the noise emission metric dispute,
asking whether the Lmax metric is equivalent to the Leq
metric. Id. at 43. Tuscola's representative said
it was not. Id. at 44.
Planning Commission then addressed the economic impact study.
Chairman Braem was ...