Sandstone Creek Solar, LLC v. Twp. of Benton

• Decision Date: 04 February 2021
• Docket Number: No. 352910,352910
• Citation: 335 Mich.App. 683,967 N.W.2d 890
• Parties: SANDSTONE CREEK SOLAR, LLC and Gary Walters, Plaintiffs-Appellants, v. TOWNSHIP OF BENTON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

335 Mich.App. 683

967 N.W.2d 890

SANDSTONE CREEK SOLAR, LLC and Gary Walters, Plaintiffs-Appellants,

v.TOWNSHIP OF BENTON, Defendant-Appellee.

No. 352910

Court of Appeals of Michigan.

Submitted January 6, 2021, at Lansing

Decided February 4, 2021, 9:15 a.m.

Varnum LLP, Grand Rapids (by Matthew D. Zimmerman, David T. Caldon, and Brion B. Doyle ) for Sandstone Creek Solar, LLC, and Gary Walters.

Fahey Schultz Burzych Rhodes PLC (by William K. Fahey, Christopher S. Patterson, Okemos, Matthew A. Kuschel, and Jacob N. Witte) and Lucas Law, PC, Onsted (by Frederick Lucas ) for Benton Township.

Bauckham, Sparks, Thall, Seeber & Kaufman, PC, Portage (by Robert E. Thall ) for the Michigan Townships Association, Amicus Curiae.

Before: Gadola, P.J., and Borrello and M.J. Kelly, JJ.

Gadola, P.J. Plaintiffs, Sandstone Creek Solar, LLC (Sandstone) and Gary Walters, appeal as of right the order of the trial court denying their motion for a preliminary injunction, granting in part their claim for relief under Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq. , and dismissing their complaint in all other respects. We affirm in part, reverse in part, and remand to the trial court for further proceedings.

I. FACTS

The facts of this case are largely undisputed. According to plaintiffs, Sandstone is a subsidiary of Geronimo Energy, LLC (Geronimo), a renewable-energy development company with its headquarters in Minnesota.

Geronimo is itself a subsidiary of National Grid Ventures and is the renewable-energy platform of National Grid North America, Inc., which, according to plaintiffs, sells electricity and natural gas to millions of consumers in the northeastern United States.

In 2016, Sandstone began to implement its plan to build a solar-power project in Michigan for the purpose of generating electricity for sale in the utility market. Sandstone determined that a desirable location for the power project would be Benton Township, located in Eaton County. Anticipating that the power project would occupy several hundred acres of farmland in Benton Township, Sandstone set about acquiring property interests in various parcels in the township, including land owned by plaintiff Walters.

At the time Sandstone began acquiring property for its power project in 2016, Benton Township did not have its own zoning ordinance; as a result, zoning and land use in the township was regulated by Eaton County under its zoning ordinance, known as the Land Development Code. At that time, the Land Development Code did not have a comprehensive ordinance applicable to solar-energy systems. According to plaintiffs’ second amended complaint, when Eaton County became aware of Sandstone's plan to locate the solar-power project in Benton Township, the county began the process of amending its Land Development Code to facilitate the anticipated permit application by Sandstone.

These efforts, however, met with opposition in Benton Township. On May 8, 2017, the Benton Township Board of Trustees adopted a resolution of the Benton Township Planning Commission as Solar Farm Resolution 2017-2. That resolution provided:

WHEREAS, the proposal for the Solar Farm in Benton/Oneida Townships is not consistent with the current Eaton County Land Development Code (14.1 and 14.5); and

WHEREAS, the proposed Solar Farm is not an agricultural Enterprise but a commercial initiative—which is inconsistent with current zoning designation; and

WHEREAS, it is the position of the Benton Township Planning Commission that any solar farm proposal must conform to the principles of farmland preservation as stipulated in the Benton Township Master Plan and Eaton County Land Development Code; then

Let it be resolved that this position be communicated to the Benton Township Board of Trustees, the Eaton County Planning Commission, and the Eaton County Board of Commissioners for their support. [Formatting altered.]

By letter dated February 20, 2018, Benton Township Supervisor Roger Wickerham advised the Eaton County Planning Commission regarding the county's proposed amendment to its Land Development Code:

Benton Township stresses the fact that Large Solar Arrays should not be allowed on agriculture zoned property. Large solar arrays are not an acceptable use for farm land, especially prime farm land....

Approving solar arrays on farm land goes strictly against Benton Township's Master Plan which we devoted much time, energy and funds to complete. Large solar arrays installed by a private company for profit on this scale is a commercial use of land and should be on that type of zoned property to comply with our Master Plan. We would urge the County to strongly take this into consideration.

Wickerham urged the county to allow large solar arrays only on property zoned as light industrial and with a special-use permit, consistent with the practice of the neighboring Oneida Township.

Nonetheless, the Eaton County Board of Commissioners amended the county's Land Development Code by adding § 14.39 "to regulate the safe, effective and efficient use of solar energy systems in order to reduce or replace the consumption of electricity supplied by utility companies." Eaton County Land Development Code, § 14.39.2. As amended, the Code permits "Solar Energy Systems, Large or Medium as provided in Section 14.39 of this Ordinance," in limited agricultural districts, by conditional-use permit. Eaton County Land Development Code, § 7.3.4(Z) (formatting altered).

On October 17, 2019, Sandstone submitted a conditional-use permit application to Eaton County, indicating that Sandstone had purchase agreements for approximately 850 acres¹ zoned as limited agricultural in Benton Township. The Benton Township Board of Trustees held a special meeting on October 30, 2019, at which the board adopted a resolution providing that the township would perform its own zoning from that date forward as provided by the Michigan Zoning Enabling Act (the MZEA), MCL 125.3101 et seq. , and imposed a moratorium on new permits for one year or until the land-use and zoning ordinances were put in place. On November 5, 2019, Benton Township requested that the Eaton County Planning Commission "table any matters concerning land use and planning within Benton Township to provide sufficient time for the Township to establish its own zoning ordinance."

The Benton Township Planning Commission met on November 7, 2019, reviewed a proposed interim zoning ordinance, and approved a resolution recommending that the proposed interim zoning ordinance be adopted by the township board. The interim zoning ordinance permitted small-scale solar-energy systems in districts zoned for industrial use and permitted large-scale solar-energy systems in industrial districts by special-use permit. The township planning commission submitted the proposed interim zoning ordinance to the Eaton County Planning Commission "for the purpose of coordinating the zoning ordinance with the zoning ordinances of Eaton County and municipalities with zoning ordinances that have a common boundary with Benton Township no later than November 8, 2019."

On November 11, 2019, the Benton Township Board of Trustees received comments on the recommended interim zoning ordinance and approved a resolution to accept the interim zoning ordinance from the township planning commission as of the date of the meeting. The resolution provided that the board would receive comments from the Eaton County Planning Commission, the Eaton County Community Development Department, township residents, and any other individuals or municipalities for 15 days before the interim zoning ordinance would be considered approved. It also provided that the board would hold a public meeting on or after November 26, 2019, to consider giving the interim zoning ordinance immediate effect. The township planning commission was directed to "initiate steps to prepare a final and permanent zoning ordinance pursuant to the MZEA for consideration of the Township Board while the interim zoning ordinance remains in effect." On November 26, 2019, the Benton Township Board of Trustees convened and adopted a resolution approving the interim zoning ordinance, giving it immediate effect as of November 27, 2019. Notice of the interim zoning ordinance was published November 30, 2019.

On December 2, 2019, Walters submitted to the Benton Township clerk a notice of intent to file a referendum petition pursuant to MCL 125.3402, challenging the interim zoning ordinance. That same day, Sandstone filed a complaint² in the trial court initiating this case. As later amended, the complaint set forth five claims: Count I sought a declaratory judgment that the interim zoning ordinance was invalid because Benton Township had failed to follow the requirements of the MZEA in enacting the interim zoning ordinance, Count II sought a declaratory judgment that Benton Township had improperly imposed a moratorium on projects within the township, Count III alleged that the interim zoning ordinance imposed exclusionary zoning in violation of MCL 125.3207, Count IV alleged a violation of the FOIA, and Count V sought a declaratory judgment that Benton Township's refusal to accept Walters's referendum petition was improper and unlawful.

Plaintiffs also moved for a preliminary injunction seeking an order compelling Benton Township to accept Walters's referendum petition, to determine the adequacy of the petition, and to place the interim zoning ordinance on the ballot at the next regular or special election. The township opposed plaintiffs’ motion for a preliminary injunction, contending that no right of referendum existed with respect to an interim zoning ordinance adopted under MCL 125.3404. Because the township at that time had not yet received Walters's petition, the township also asserted that plaintiffs’ request for relief was not ripe.

The trial court held hearings on plaintiffs’ motion for a preliminary injunction on December 20, 2019, and on January 21, 2020. In...