United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT IN PART, DENYING DEFENDANTS' MOTION IN
LIMINE AS MOOT, DISMISSING COUNTS TWO, THREE, AND FOUR, AND
DISMISSING COUNT FIVE IN PART
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.
Approximately one month later, the Court issued an opinion
and order affirming the Almer Charter Township's denial
of the SLUP application. ECF No. 39.
February 26, 2018, Defendants filed a motion for summary
judgment on the remaining counts of the complaint. ECF No.
55. Specifically, Defendants argue that no violation of
procedural due process rights occurred, that no equal
protection violation occurred, that Tuscola's Zoning
Enabling Act claim is meritless, and that Tuscola's
Opening Meetings Act claim should be dismissed. On April 24,
2018, Defendants filed a motion in limine seeking to exclude
evidence regarding noise emissions from Caro Motorsports from
admission at trial. ECF No. 64. For the following reasons,
the motion for summary judgment will be granted in part, the
motion in limine will be denied as moot, and Counts Two,
Three, and Four will be dismissed. Count Five will be
dismissed in part.
Court's November 3, 2017, opinion and order, the Court
summarized, at length, the procedural and factual history of
Tuscola's SLUP application and the Township's
consideration of the same. Because those facts bear
considerable relevance to the presently disputed issues,
large portions of that factual summary will be reproduced
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 III Wind 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.
has provided an example of one of the “Short Form
Option Agreements” which it entered into with local
landowners in Tuscola Township. See Opt. Agreement,
ECF No. 62, Ex. 1A. In the Agreement,  the landowner
grants Tuscola “an option to purchase” certain
“easements in connection with the development,
construction, and operation of a wind energy project in
Tuscola County, Michigan.” Id. at 1.
“The period during which the Option may be exercised
shall begin on the date when both Owner and Operator have
executed the Agreement, and shall continue for a period of
thirty-six (36) months after such date.” Id.
If and when Tuscola exercises the option (known as the
“Commencement Date”), Tuscola's rights to the
easements vest and continue until thirty-five “years
after the date when the wind power project has achieved the
status of a commercially operable wind-powered electrical
generation and transmission facility.” Id. at
2. The easements automatically renew for a subsequent thirty
year term unless Tuscola opts out. Id.
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
“[a]ll efforts shall be made not to affect any resident
with any strobe effect or shadow flicker.” Id.
at § 1522(C)(20). 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).
The zoning ordinance likewise directs that “[n]oise
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.” Id.
at § 1522(C)(14).
September 23, 2016, Tuscola submitted its SLUP application to
the Almer Township Planning Commission. 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. The Spicer Group challenged several
aspects of the sound emissions report submitted by Tuscola,
asked when Tuscola would be submitting an economic impact
study, and 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. In its response, Tuscola defended its SLUP
application, asserting that it had complied with all
requirements requested by the Township.
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 is used by
certain international standards and is the metric used by the
manufacturer to model probable sound emissions. Id.
at 31. The representative also explained that the 1-hour Leq
metric is more practical because 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 principal engineer for Acoustics by Design,
also testified. 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
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 hearing, Tuscola sent a number of responses to the
Planning Commission which addressed the issues and concerns
identified by the Spicer Group and the Planning Commission.
November 8, 2016, four new Board members were elected.
According to Tuscola, all four new members were “part
of the anti-wind Ellington-Almer Concerned Citizens
Group.” Pl. App. Br. at 6, ECF No. 31. The new Board
members took office on November 20, 2016, and held a special
meeting on November 22, 2016.
special meeting, the Almer Township Board voted to retain Mr.
Homier of Foster Swift. Compl. at 23. Tuscola has attached an
invoice submitted by Mr. Homier in December 2016 which
indicates that he had been discussing Tuscola's SLUP
application with one of the new Board members days before
they were elected, and that he had drafted moratorium on wind
energy SLUP applications on November 18, 2016, after the four
new Board members were elected, but before they took office.
Foster Swift Invoice, ECF No. 62, Ex. 18.
Board approved the “Wind Energy Conversion Systems
Moratorium Ordinance” at the November 22, 2016, special
meeting. Moratorium, ECF No. 30, Ex. M. See also
Nov. 22, 2016, Meeting Minutes, ECF No. 30, Ex. N. 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.” Moratorium 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 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.
questioning at the second public hearing primarily focused on
the ongoing dispute over the proper metric by which to
measure wind turbine noise emissions and the adequacy of the
economic impact studies provided by Tuscola. Several
commissioners were concerned that the economic impact
information provided by Tuscola did not include local
studies. In response, Tuscola indicated that any study of
only Almer Township would be statistically suspect.
Id. at 14. There was also discussion regarding
whether the zoning ordinance directed that Lmax or Leq be
used to measure noise emissions and which of those metrics
was best suited to measuring wind turbine noise emissions.
the hearing drew to a close. Members of the Planning
Commission deliberated over whether they needed more
information from Tuscola regarding the sounds emissions or
whether they were prepared to make a determination regarding
the proper interpretation of the ordinance. Ultimately,
Chairman Braem moved to table consideration of the SLUP
application and request further information from Tuscola.
Id. at 94. The Planning Commission discussed the
outstanding issues, and then approved the motion to adjourn.
The Township's attorney summarized the requested
information as follows: “[Y]ou want to request
information from NextEra on property values, noise, sound
models based on Lmax and if there is the justification you
just referenced regarding the cost estimate on the
decommissioning of the individual towers.” Id.
the second public hearing, Tuscola, the Spicer Group, and the
Planning Commission engaged in correspondence regarding the
issues identified at the hearing. Again, discussion focused
primarily on the sound emissions metric issue and the
economic impact issue.
January 4, 2017, the Planning Commission held its third and
final public hearing on the SLUP application. Jan. 4, 2017,
Hearing Tr., ECF No. 30, Ex. X. At the hearing, Tuscola
summarized the documents it had submitted since the last
hearing. As before, the discussion centered on the noise
emissions issue. Tuscola argued that the zoning ordinance was
ambiguous as the metric for measuring sound emissions and
asserted that the Leq metric should be adopted. Members of
the Planning Commission disagreed, arguing that the zoning
ordinance's “shall not exceed” language
necessarily meant that it imposed an Lmax standard.
addressing other disputed issues, including whether Tuscola
was required to provide Almer Township-specific property
value studies, Planning Commission member Daniels moved to
recommend denial of the SLUP application. Id. at 44.
The Commissioners then discussed their opinions on the
application. Chairman Braem asked Commissioner Tussey whether
the ordinance should be interpreted as imposing an Lmax
standard since neighboring townships had interpreted similar
language as creating an Leq standard. Tussey replied:
“I'm not struggling with Lmax because 45dB(A) is a
valid metric. . . . And the fact that the ordinance says not
to exceed - and I believe even from a legal standpoint
we're always to interpret the simplest definition in
English. And that our job here isn't to interpret what
they meant; it is to enforce what is written.”
Id. at 45- 46. Commissioner Daniels also articulated
his rationale for recommending denial of the SLUP
application. He asserted that “[t]he ordinance does not
allow for the averaging varying levels of sound. We, as a
Planning Commission, are not here to rewrite the ordinance,
but to enforce the ordinance as written. And it mandates a
maximum sound level of 45 decibels.” Id. at
47. Commissioner Daniels also opined that Tuscola had not
procured adequate insurance coverage for the turbines and had
not made sufficient efforts to minimize shadow flicker for
Almer Township residents. Chairman Braem then briefly
explained that he was satisfied with the insurance coverage,
the economic impact study, and efforts to reduce shadow
the Planning Commission voted 3 to 1 to recommend denial of
the SLUP application (two members did not vote because of a
conflict of interest). Id. at 51-52.
January 17, 2017, the Almer Township Board held a public
meeting to review the Planning Commission's
recommendation regarding the SLUP application. Jan. 17, 2017,
Tr., ECF No. 30, Ex. DD. After opening the floor to public
comments (including comments by a Tuscola representative),
the Board discussed the Planning Commission's
recommendation to deny the SLUP application. Every Board
member to discuss the recommendation on the record was
supportive of the Planning Commission's rationale for
denial. And most Board members appeared to focus on the noise
emissions issue. For example, Board Member Rosenstangel
stated that the Planning Commission's recommendation was
“very well put together. And my concern was the 45
decibels shall not exceed. And I think that's what we
should stick with is it shall not exceed the 45
decibels.” Id. at 19. Board Member Graff made
a similar statement:
I also agree with the shall not exceed. I look at this not
any different than a speed limit. If you're going 55
miles an hour, 55 miles an hour is the speed limit that
you're supposed to have, you can't average it out.
You can't drive from Saginaw to Cass City and go 75 miles
an hour, but you have to slow down for all the little towns
in between. When the police officer stops you outside of Cass
City, you don't say, well, you have to relook at it
because, if you average it out, I was only going 55 miles an
Id. at 20-21.
Board Member Tussey (who is the Board's Planning
Commission representative) reiterated his reasons for
opposing the SLUP application. Ultimately, the Almer Township
Board voted 5 to 1 to deny the SLUP application. Id.
Board simultaneously issued a Resolution articulating its
rationale for denying the SLUP application. Res. Deny. SLUP,
ECF No. 30, Ex. FF. In the Resolution, the Board identified
five areas in which the SLUP application did not comply with
the Zoning Ordinance. First, the Board faulted Tuscola for
not providing an adequate economic impact study. Despite
being asked to “provide a property values analysis that
was localized to Almer Township, ” Tuscola
“provided property value analyses based on other
states, as well as some information concerning
personal property values in Michigan, but still
provided no real property value analyses using
Michigan data.” Id. at 6-7 (emphasis in
the Board found that the SLUP application did not comply with
the Zoning Ordinance's limit on noise emissions. The
Board explained that the ordinance's “limitation on
noise emissions . . . is clear and unambiguous and requires
no further qualifying metric or analysis.” Id.
at 7. In response to Tuscola's argument that an LEQ
standard should be utilized, the Board found that
“using an Leq standard is inconsistent with the plain
and unambiguous language of the Zoning Ordinance, which
clearly provides that noise from a WECS ‘shall not
exceed fortyfive (45) decibels.'” Id. at
8. The Board further referenced the opinion of
“acoustician Kerrie G. Standlee, ” who advised
the Planning Commission that the language of the Zoning
Ordinance would ordinarily be interpreted by acousticians as
establishing a maximum noise level limit.
the Board explained that Tuscola had not complied with the
ordinance's requirement that an eight-foot security fence
be placed around the turbines. The Board acknowledged that
Tuscola sought a variance from that requirement from the
Planning Commission, but noted that the variance was not
approved. And the Board concurred with that decision:
“The Township Board also does not approve this
alternative, as the Township Board finds that the proposed
alternative of having no fence will not adequately protect
the public health, safety, and welfare.” Id.
the Board faulted Tuscola for not providing the turbine
safety manual and thus confirming that the turbines are
equipped with an adequate braking device: “The
Applicant has withheld documentation . . . that would
identify the braking device's capability, citing the
Applicant's nondisclosure agreement with GE.”
Id. at 10-11.
the Board found that Tuscola had not complied with the
ordinance's requirement that the electrical lines
stemming from the turbines be placed underground. Again, the
Board concurred with the Planning Commission's refusal to
waive that requirement: “The Township Board . . . does
not grant the requested waiver because it finds that the
proposed aboveground lines would be detrimental to the
aesthetics of the Township and will not protect the public
health, safety, and welfare.” Id. at 10.
the Board noted that it had previously approved a moratorium
on wind energy projects in the Township and thus was
precluded from approving the SLUP application even if it had
complied with the Zoning Ordinance.
January 9, 2017, several days after the Planning Commission
recommended denial of the SLUP application, Tuscola requested
an interpretation of the Zoning Ordinance's 45 dBA limit
by the Zoning Board of Appeals (“ZBA”). ZBA
Interp. App., ECF No. 30, EX. Z. In the application, Tuscola
asked the ZBA to provide expedited review: “Under
Section 2401 of the Ordinance, the Township Board must make a
decision on Tuscola Wind III's application within 30 days
of the Planning Commission's recommendation; in other
words, by February 3, 2017. Given that the ZBA's
interpretation will be binding on the Township Board, we
respectfully request that the ZBA render its interpretation
before that date.” Id. at 4. The ZBA did not
give expedited consideration to Tuscola's request. When
the Almer Township Board denied the SLUP ...