Tuscola Area Airport Auth. v. Mich. Aeronautics Comm'n, Dep't of Transp.

• Docket Number: SC 164262,COA: 357210
• Decision Date: 30 June 2023
• Parties: TUSCOLA AREA AIRPORT AUTHORITY, Appellant, v. MICHIGAN AERONAUTICS COMMISSION, DEPARTMENT OF TRANSPORTATION, and PEGASUS WIND, LLC, Appellees.
• Court: Michigan Supreme Court

1

TUSCOLA AREA AIRPORT AUTHORITY, Appellant, v. MICHIGAN AERONAUTICS COMMISSION, DEPARTMENT OF TRANSPORTATION, and PEGASUS WIND, LLC, Appellees.

No. SC 164262

COA: 357210

Supreme Court of Michigan

June 30, 2023

Ingham CC: 20-000207-AA

Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices

ORDER

On order of the Court, the application for leave to appeal the February 24, 2022 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE Part III(B) of the judgment of the Court of Appeals, and we REMAND this case to the Ingham Circuit Court for further proceedings not inconsistent with this order. The Tuscola Area Airport Authority is the legal entity charged with control over the airport, and the decision to grant the tall structure permits, which allow for the placement of wind turbines in the immediate vicinity of the airport, impacts the airport. Moreover, the Airport Authority has alleged (and provided evidence in support of its allegation) a concrete and particularized injury-that the turbines will result in a pecuniary loss to the airport. See Saugatuck Dunes Coastal Alliance v Saugatuck Twp, 509 Mich. 561, 587 591-598 (2022) (describing what it means to be "aggrieved" by a zoning decision for purposes of standing to appeal under MCL 125.3605 and MCL 125.3606); Federated Ins Co v Oakland Co Rd Comm, 475 Mich. 286, 291 (2006) ("To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.") (quotation marks and citation omitted). Accordingly, the Airport Authority has provided sufficient evidence of a concrete and particularized injury to support appellate standing to challenge the issuance of the tall structure permits.

VIVIANO, J. (dissenting).

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I respectfully dissent from the Court's decision to resolve this case through a peremptory reversal rather than by granting leave to appeal. I do not believe the peremptory order contains a sufficiently clear legal basis for reversal. First, neither Federated Ins Co v Oakland Co Rd Comm, 475 Mich. 286, 291 (2006), nor Saugatuck Dunes Coastal Alliance v Saugatuck Twp, 509 Mich. 561, 587 591-598 (2022), is directly on point for purposes of this case, as neither interpreted "aggrieved" as used in MCL 259.489 of the Tall Structure Act, MCL 259.481 et seq.^[1] Second, citing those cases may cause confusion in our standing jurisprudence. Saugatuck Dunes addressed what it means to be aggrieved by a zoning decision, but the present case does not involve a zoning decision. While there may be similarities between what makes one aggrieved by a zoning decision and by the granting of a tall structure permit, it is not clear to me that the standards are necessarily the same. Citing Federated Ins for the proposition that one must have a pecuniary interest in a case's outcome to be aggrieved is likewise problematic. The parties in this case disagree on whether League of Women Voters of Mich. v Secretary of State, 506 Mich. 561 (2020), abolished that requirement.^[2] The majority's order ignores this dispute and simply cites Federated Ins. Given the lack of binding caselaw clearly applicable to the issue in this case, I would grant leave to appeal to consider these questions...