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Tuscola Wind III, LLC v. Ellington Township

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

March 13, 2018

ELLINGTON TOWNSHIP, et al, Defendants.


          Honorable Thomas L. Ludington Judge

         On 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.


         For 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.[1] 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.


         Prior 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).

         After 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. at 10.

         Among 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.

         In 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.


         In 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 enacted.

         While 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.


         After 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.

         On 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.


         On 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.” Id.

         At the 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).

         “As 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.


         In 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 allegations.

         Specifically, 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 been appointed.

         But Defendants deny all allegations “which concern nonparties, ” which attempt to “characterize[] or interpret[] the contents of the Ordinance” or resolutions, or ...

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