United States District Court, E.D. Michigan, Northern Division
AND ORDER DENYING MOTION TO ENFORCE JUDGMENT, DENYING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DENYING
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DENYING MOTION
TO CERTIFY INTERLOCUTORY APPEAL, AND DISMISSING COUNTS TWO,
THREE, AND FOUR AS MOOT
L. LUDINGTON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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. 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.
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. 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.
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.
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.
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
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.
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.
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). ...