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Tuscola Wind III, LLC v. Almer Charter Township

United States District Court, E.D. Michigan, Northern Division

November 3, 2017

TUSCOLA WIND III, LLC, Plaintiffs,
v.
ALMER CHARTER TOWNSHIP, et al, Defendants.

          OPINION AND ORDER AFFIRMING THE DECISION OF THE ALMER CHARTER TOWNSHIP BOARD OF TRUSTEES

          THOMAS L. LUDINGTON United States District Judge

         On 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.

         I.

         Tuscola 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.

         Prior 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.

         A.

         The 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.

         Section 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 § 1522(C)(4).

         The Zoning Ordinance also addresses noise emissions from the turbines:

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).

         Similarly, “[a]ll efforts shall be made not to affect any resident with any strobe effect or shadow flicker.” Id. at § 1522(C)(20).

         And the 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).

         B.

         On 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 summarized.

         In the 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.

         Tuscola 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.

         Later 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.

Id.

         Finally, 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 goes on:

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.

         Next, 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).

Id.

         Thus, 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.

         The 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).

         C.

         To 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. Id.

         Tuscola 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 expectancy. Id.

         D.

         1.

         On 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.[1] 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[2]; 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.

         On 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).[3] 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.

         For the 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.[4] Id. at 130. Ms. Standlee concurred with Mr. James's interpretation of the ordinance:

[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 energy level.

Id. at 131.

         Ultimately, the Planning Commission concluded that additional information was necessary before the SLUP application could be ruled upon. Accordingly, the public hearing was adjourned.

         The day 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.

         Several 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 lines.

         Finally, 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.

         Next, 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.

Id.

         Tuscola 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

         In 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.

         Finally, Tuscola articulated why it believed an Leq metric was more suited for measuring the true impact of wind farm noise emissions:

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.

         E.

         On November 17, 2016, the Almer Township Board approved a “Wind Energy Conversion Systems Moratorium Ordinance.” Moratorium, ECF No. 30, Ex. M.[5] 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.

         F.

         On 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” language:

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.

         Ultimately, 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.

Id.

         The memorandum further explained that, even if a Leq metric were adopted, Tuscola's proposed 1-hour Leq metric was unreasonable:

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.

Id.

         G.

         On 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 here).

         First, 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.

         The Planning Commission then addressed the economic impact study. Chairman Braem was ...


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