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Tuscola Wind III, LLC v. Almer Charter Township

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

June 12, 2018

ALMER CHARTER TOWNSHIP, et al, Defendants.



         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. 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.

         On 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.


         In the 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 here.[1]

         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 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.

         Tuscola 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, [2] 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.


         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).

         Similarly, “[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).



         On 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.


         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. 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.

         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 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.

         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 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 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. 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.


         On 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.

         At that 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.

         The new 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.


         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.

         The 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.

         Eventually, 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. at 105.


         After 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.

         On 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.

         After 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 flicker.

         Ultimately, 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.



         On 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 hour.

Id. at 20-21.

         Likewise, 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. at 33-35.

         The 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 original).

         Second, 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.

         Third, 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. at 10.

         Fourth, 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.

         Fifth, 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.

         Finally, 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.


         On 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 ...

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