United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS
AS TO COUNT ONE
Honorable Thomas L. Ludington Judge
March 31, 2017, Plaintiff Tuscola Wind III, LLC,
(“Tuscola”) filed a complaint naming the
Ellington Township (“Township”) and Ellington
Township Board (“Board”) as Defendants. ECF No.
1. Tuscola is challenging the Board's decision to
institute a moratorium on consideration of all wind energy
projects in the Township. On November 2, 2017, Tuscola filed
a motion for judgment on the pleadings as to Count One of the
complaint, which asserts that Defendants violated the Zoning
Enabling Act, M.C. L. 125.3101 et seq., when the
Board enacted the moratorium by resolution. For the following
reasons, that motion will be granted.
clarity, Plaintiff's allegations will be summarized, and
then the factual allegations which Defendants admit will be
identified. Tuscola Wind III, LLC, is a Delaware limited
liability company which is owned by NextEra Energy Resources,
LLC. Comp. at 3, 4. NextEra is “the largest generator
of wind energy in the United States.” Id. at
4. NextEra has previously constructed two wind energy centers
in Tuscola County and Bay County, Michigan, named the Tuscola
Wind Energy Centers I and II. Id. at 4-5. In 2015,
Tuscola “proposed to construct the Tuscola III Wind
Energy Center . . . in Tuscola County Michigan.”
Id. at 5. That project is the source of the current
litigation. The proposed Tuscola III Wind Energy
Center would include fifty-five wind turbines, with nineteen
of those turbines to be sited in Ellington Township.
Id. at 5-6.
to 2014, the Township's wind ordinance was half a page
long. Id. at 7. In anticipation of the Tuscola III
Wind Energy Center Project, the Ellington Township Board
“determined that it needed to re-examine its wind
ordinance.” Id. The Board hired a third-party
consultant, the Spicer Group, to assist in revising the
ordinance. Id. On September 30, 2014, the Planning
Commission held a hearing on the proposed amendments and
recommended adoption. Several months later, the Board
unanimously adopted the amended wind ordinance, which
“remains in effect today.” Id. at 8.
This updated ordinance is “much stricter than its
predecessor, ” and includes sound pressure limits,
setback requirements, and shadow flicker limits. Id.
Pursuant to the current ordinance, “utility grid wind
energy systems are considered a Special Land Use, requiring
the Planning Commission to approve an application for a
Special Land Use Permit.” Id. (citing
Ordinance at § 502(M)(4), Ex. 2).
Tuscola formally proposed the project, and approximately a
year after the wind ordinance was amended, “a group
[named the Ellington-Almer Township Concerned Citizens Group]
was formed to oppose the Project and to pressure the Township
to enact a much more restrictive wind ordinance.”
Id. According to Tuscola, the anti-wind Group has
connections with a larger group, called the Interstate
Informed Citizens Coalition, that “opposes wind as a
matter of policy and lobbies against wind energy in Ohio and
Michigan.” Id. at 9. The Group contends in
public that it is “pro-reasonable regulation” of
wind energy, but Tuscola believes that the Group is
fundamentally opposed to wind energy. Id. Tuscola
also believes that the interstate Coalition coaches local
anti-wind groups on “tactics of intimidation, threats
of lawsuits, referenda, and recalls . . . in an effort to
prevent the development of wind projects.” Id.
other tactics, the local anti-wind Group decided to run some
of its members as candidates for the Township Board.
Id. Four members of the Group ran in the 2016
election, and all four were elected. Id. The members
of the anti-wind Group have provided contentious and
confrontational opposition to pro-wind advocates in the
community. Tuscola alleges that these tactics have included
“threats and intimidation.” Id. at 11.
terms of policy, members of the anti-wind Group have
repeatedly “stated in public meetings their belief that
the Township should” amend its wind ordinance.
Id. Specifically, they believe that the Township
should “model its setback and sound requirements to
those found in the recently amended wind ordinance in
neighboring Huron County.” Id.
early 2016, the anti-wind Group began lobbying for the Board
“to pass a moratorium on the development of wind energy
systems in the Township” in order to provide the Board
time to amend the wind ordinance. Id. at 12. The
Township Board held a meeting on April 4, 2016, to consider
enacting a 120 day moratorium on consideration of
applications for approval to build wind energy systems. The
proposed moratorium contained the following conditions for
its termination: “if either (a) the Board adopted a
‘sufficient' regulation to protect the health,
safety, and welfare of the citizens; or (b) the Planning
Commission recommended that no additional amendments were
necessary to protect the health, safety, and welfare of the
citizens.” Id. at 12-13 (citing First
Moratorium Res., ECF No. 1, Ex. 6). The moratorium was
the moratorium was in place, the Planning Commission
considered several amendments to the wind ordinance which the
anti-wind group supported. “Ultimately, after reviewing
the proposed amendments to the Ordinance and studying the
impacts of the proposed turbines, the Planning Commission did
not recommend any changes to the Ordinance, and the First
Moratorium was lifted.” Id. at 13.
the first moratorium ended, Tuscola submitted a Special Land
Use Permit (“SLUP”) application seeking
permission to construct the wind energy project. Id.
at 14. According to Tuscola, the SLUP application was
designed to “far exceed the Ordinance's sound and
setback requirements.” Id. Tuscola
“expended substantial time and money in preparing its
SLUP application” and additionally “supplied the
Township with $65, 000.00 to fund an escrow account so the
Township can pay its consultants and other service providers
to review the materials.” Id. at 15.
October 10, 2016, the Township's Planning Commission
“scheduled a public hearing to be held on December 5,
2016, to consider” the SLUP application. Id.
Earlier dates were considered, but members of the anti-wind
group “strongly encouraged the Planning Commission to
set the public hearing for a date after the new Board was set
to take office on November 20, 2016.” Id.
November 8, 2016, four new Board members were elected to the
Ellington Township Board. As explained above, all four were
members of the anti-wind group. Id. at 16. The new
Board members took office on November 20, 2016. On the same
day, the Almer Township Board “issued a notice for a
special meeting to be held on Tuesday, November 22,
2016.” Id. Early the next morning, the
Ellington Township Board “issued a notice for a special
meeting to be held 90 minutes earlier on the same date and at
the same location.” Id. Tuscola believes that
“both boards reserved the [location for the special
meetings] before they officially took office.”
November 22, 2016, special meeting, the Ellington Township
Board's first action was to hire an attorney-Michael
Homier of Foster Swift-to advise the Board on matters
regarding the wind ordinance and SLUP application.
Id. at 17. Mr. Homier “indicated that he was
informed that ‘the Township may desire to look at its
WEC ordinance' and that he had drafted a 12 month
moratorium, with the option to renew, for Board
review.” Id. at 18. The second moratorium was
approved by a four to one vote, with all four new Board
members voting for the moratorium. See Id. (citing
Sec. Moratorium Res., ECF No. 1, Ex. 9). The second
moratorium was “passed by the Board, ostensibly
pursuant to its ‘police power, ' and according to
the resolution, the purpose of the Second Moratorium is to
protect the ‘health, safety, and welfare' of
Township residents.” Id. (citing Sec.
Moratorium Res., ECF No. 1, Ex. 9).
a result of the Second Moratorium, the Planning Commission
has been precluded from considering or deciding on Tuscola
Wind III's SLUP Application.” Id. at 19.
Tuscola argues that “Defendants are not in the process
of developing a new zoning ordinance related to the
regulation of wind energy.” Id. at 20.
Further, Tuscola asserts that “a zoning ordinance may
not be suspended or amended by resolution.”
Id. at 21. For these reasons, Tuscola believes that
the second moratorium violates the Zoning Enabling Act.
their answer to the complaint, Defendants deny most of
Plaintiff's factual allegations. In particular,
Defendants deny Plaintiff's attempts to attribute certain
purposes or intentions to actions by Defendants or members of
the anti-wind group. Defendants do, however, admit certain
Defendants admit that the Board amended the wind ordinance on
January 13, 2015, and that the ordinance as amended remains
in effect today. Ans. at 8, ECF No. 12. Defendants also admit
that “four of the five current members of the Township
Board were newly elected in the November 8, 2016 general
election.” Id. at 2. There is likewise no
dispute that the Township enacted a moratorium via resolution
soon after the election. Id. Defendants admit that
Tuscola has submitted a SLUP application and that
“Plaintiff supplied Defendants with $65, 000 to fund an
escrow account for consultants and other service providers to
review materials.” Id. at 17. Finally,
Defendants admit that new Planning Commission members have
Defendants deny all allegations “which concern
nonparties, ” which attempt to “characterize or
interpret the contents of the Ordinance” or
resolutions, or ...