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Tuscola Wind III, LLC v. Ellington Township

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

July 27, 2018

ELLINGTON TOWNSHIP, et al, Defendants.



         On March 31, 2017, Plaintiff Tuscola Wind III, LLC, (“Tuscola”) filed a complaint against the Ellington Township (“Township”) and the Ellington Township Board (“Board”). ECF No. 1. Tuscola sought the invalidation of the Township's moratorium on the consideration of wind energy SLUP applications which the Township initiated in November 2016. In the First Count, Tuscola argues that the moratorium was enacted in violation of the Michigan Zoning Enabling Act. Count Two alleges that newly elected members of the Township violated the Michigan Open Meetings Act prior to being sworn into office. The only requested relief related to Count Two is the invalidation of the moratorium. In Counts Three and Four, Tuscola argues that the moratorium violates Tuscola's substantive and procedural due process rights.

         On November 2, 2017, Tuscola filed a motion for judgment on the pleadings as to Count One. ECF No. 16. On March 13, 2018, the Court granted that motion and found the moratorium void because the moratorium had not been enacted pursuant to the procedures outlined in the Zoning Enabling Ordinance and because the moratorium violated the doctrine of legislative equivalency. ECF No. 28. Two weeks later, the Township filed a motion to certify an interlocutory appeal of that opinion and order. ECF No. 30. Before that motion could be fully briefed, cross motions for summary judgment were filed. ECF No. 32. On June 26, 2018, Tuscola filed a motion to enforce the March 13, 2018, opinion and order.

         As explained below, Plaintiff's motion to enforce the judgment will be denied, all remaining counts will be dismissed without prejudice, and the motion for certification of an interlocutory appeal will be denied.



         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. The proposal suggested that nineteen of those turbines should be sited in Ellington Township. SLUP App. at 2, ECF No. 32, Ex. 10.

         Tuscola's discussions with the Township regarding a potential wind energy development began in early 2014. Tuscola's main point of contact was Duane Lockwood, the Township's supervisor. See Taylor Butterfield Invoices, ECF No. 33, Ex. A. Although it is unclear whether Lockwood ever talked directly with Tuscola representatives, invoices from the firm representing the Township make clear that Tuscola and Lockwood were frequently exchanging information during this period. Id. at 14-17. Lockwood also signed several option agreements with Tuscola permitting them to use his land for wind energy development, if approved by the Township. See Op. Agreements, ECF No. 33, Ex. B. The first of those agreements is dated August 12, 2014. Id. at 14. As Township supervisor, Lockwood had the authority to appoint members of the Planning Commission. Trumbaur Dep. at 40-41, ECF No. 33, Ex. C. Given that authority and Lockwood's financial arrangements with Tuscola, the Township (as presently constituted) believes that Lockwood should have been excluded from involvement in consideration of Tuscola's wind energy application.

         In the summer of 2014, the Township decided to review and update its existing wind ordinance. The parties agree that this decision was made in anticipation of Tuscola's planned wind development. At the time, the Township's wind energy regulation spanned less than a page. To assist in the amendment process, Lockwood retained the Spicer Group to consult for the Township. Spicer Retention Letter, ECF No. 33, Ex. D. With the Spicer Group's assistance, an amended wind ordinance was drafted (the “first amended ordinance”). The first amended ordinance was approved by the Planning Commission on September 30, 2014, and by the Board on January 13, 2015. See Jan. 13, 2015, Minutes, ECF No. 33, Ex. E. At that meeting, Lockwood presented the proposed update on the zoning ordinance, moved to adopt the amendments, and voted for the amendments. Id.


         Almost immediately, opposition to the amended wind energy ordinance arose within the community. That opposition primarily took the form of the Ellington-Almer Concerned Citizens Group (“the Group”). At the February 9, 2016, Ellington Board meeting, the Group argued that the amended sound ordinance was one of the weakest enacted in Michigan in the last five years. See Power Point at 3, ECF No. 33, Ex. I. In response to the public pushback, the Board adopted a 120-day moratorium on consideration of wind energy Special Land Use Permit (“SLUP”) applications. See April 4, 2016, Moratorium, ECF No. 1, Ex. 7. During the pendency of that moratorium, additional opposition to the Board's engagement with wind energy developed within the community. In particular, Supervisor Lockwood received criticism for his perceived conflict of interest. See Nolan Letter, ECF No. 33, Ex. K; News Article, ECF No. 33, Ex. J.


         Four members of the Concerned Citizens Group decided to run for election to the Ellington Board. The Group included members from the neighboring Township of Almer (which was also a focus of Tuscola's anticipated wind development project) who had also decided to run for election in Almer. Four members of the Group were elected to the Ellington Township Board, and a number of members were elected to the Almer Township Board.[1] In 2016, the Group held frequent meetings to discuss election strategy and obtain election materials. See Campbell Dep. at 16-17, 19-21, ECF No. 32, Ex. 7; Election Handout Email, ECF No. 32, Ex. 8; Election Platform Email, ECF No. 32, EX. 9. The Group members were frustrated with the current Board's apparent “disconnect” from public opinion, especially with respect to wind energy. Campbell Dep. at 18- 20.

         On August 2, 2016, Lockwood was defeated in the Republican primary election and became a lame-duck supervisor. Election Rep., ECF No. 33, Ex. Q. On September 23, 2016, Tuscola submitted its SLUP application to Ellington Township. On October 10, 2016, the Planning Commission scheduled a hearing for December 5, 2016, to consider the SLUP application.[2] One week before the general election, the Board (including Lockwood) held a meeting without notice to the public, thus violating the Michigan Open Meetings Act. Lockwood v. Ellington Opinion, ECF No. 33, Ex. R. At the meeting, the Board appointed two individuals to serve three year terms on the Planning Commission. Id. at 1. Because those appointments occurred at a meeting that violated the OMA, the Michigan Court of Appeals has declared the appointments to be invalid. Id. at 8.

         The general election was held on November 8, 2016. The four newly elected Board members were sworn into office on November 20, 2016. Sometime prior to being sworn into office, the Group members decided to call a special meeting of the Ellington Board upon assuming office. Campbell Dep. at 43-45. The Group members wished to use that meeting to adopt a temporary moratorium on consideration of wind energy SLUP applications and engage new legal counsel for the Township. Id. The new Board held that special meeting on November 22, 2016.

         The Board made several decisions at the meeting. First, the Board retained Mike Homier of Foster Swift to represent the Township. Nov. 22, 2016, Minutes, ECF No. 33, Ex. S. Wagner, the only Board member who is not a member of the Concerned Citizens Group, “challenged Supervisor Speirs over not contacting all board members regarding hiring Foster Swift law firm.” Id. at 2. In response, Speirs explained that “this was the platform they ran on” and that the Board members did not discuss the decision after being elected to avoid violating the OMA. Id.

         After being retained, Mr. Homier produced a “[r]esolution” to “adopt a wind energy conversion facilities Moratorium ordinance.” Id. at 3. Mike Wagner requested that the moratorium be tabled so he could review it. Notwithstanding that request, the twelve-month moratorium was voted on and adopted. Finally, the Board considered the prior Board's October appointments to the Planning Commission. Id. The Board concluded that the meeting violated the OMA, thus invalidating those appointments. The Board then appointed Gregg Campbell to serve as the Board's liaison with the Planning Commission.


         Over the next few months, the new Board began working to draft a new, more stringent wind ordinance. See Jan. 17, 2017, Minutes, ECF No. 33, Ex. T (directing the Planning Commission to initiate amendments to the Zoning Ordinance). That process was prolonged. On March 31, 2017, Tuscola challenged the legal validity of the moratorium in a suit filed in this Court. On October 10, 2017, the Board extended the moratorium on consideration of wind energy SLUP applications for another six months. Res. Extend Mor., ECF No. 33, Ex. U. On March 8, 2018, this Court issued an opinion finding that the moratorium was void because it was enacted in violation of the Zoning Enabling Act and the doctrine of legislative equivalency. ECF No. 28. On April 10, 2018, the Township adopted a second set of amendments to the wind energy ordinance (the “second amended ordinance”). Res. Am., ECF No. 33, Ex. V.

         On May 18, 2018, the Township informed Tuscola that “[a]ll applications for special land use permits for wind energy conversion systems must now comply with the 2018 Ordinance.” May 18, 2018, Letter at 2, ECF No. 43, Ex. 1. In the letter, the Township indicated that Tuscola's pending application would not be considered under the old ordinance. Rather, the Township directed Tuscola to “i) amend, ii) supplement, or iii) withdraw and resubmit its application for a special use permit under the 2018 Ordinance.” Id. In a responsive letter, Tuscola argued that the Township was required to process the pending SLUP application under the ordinance pending at the time the SLUP application was submitted. June 4, 2018, Letter, ECF No. 43, Ex. 2. That request was denied. June 7, 2018, Letter, ECF No. 43, Ex. 3. In response, Tuscola filed a motion to enforce the Court's prior order.


         Tuscola has moved for an order enforcing the Court's previous order invalidating the moratorium. Federal district courts have “inherent power to enforce [their] judgments, ” which necessarily includes jurisdiction over enforcement proceedings. Peacock v. Thomas, 516 U.S. 349, 356, 359 (1996). See also S.E.C. v. Dollar Gen. Corp., 378 Fed.Appx. 511, 516 (6th Cir. 2010). Similarly, district courts have the inherent power to award sanctions when parties act in bad faith. Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991). That power is derived from the court's “equitable power to control the litigants before it and to guarantee the integrity of the court and its proceedings.” First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 512 (6th Cir. 2002). ...

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