Tuscola Wind III, LLC v. Almer Charter Twp., Case No. 17–cv–10497

• Decision Date: 12 June 2018
• Docket Number: Case No. 17–cv–10497
• Citation: Tuscola Wind III, LLC v. Almer Charter Twp., 327 F.Supp.3d 1028 (E.D. Mich. 2018)
• Parties: TUSCOLA WIND III, LLC, Plaintiff, v. ALMER CHARTER TOWNSHIP, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

327 F.Supp.3d 1028

TUSCOLA WIND III, LLC, Plaintiff,

v.ALMER CHARTER TOWNSHIP, et al., Defendants.

Case No. 17–cv–10497

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

Signed June 12, 2018

Ashley Grace Chrysler, Daniel P. Ettinger, Warner, Norcross & Judd LLP, Grand Rapids, MI, Jonathan E. Lauderbach, Warner Norcross & Judd, LLP, Midland, MI, for Plaintiff.

Laura J. Genovich, Foster, Swift, Grand Rapids, MI, Mark M. Bassily, Michael D. Homier, Nicole M. Wright, Zausmer, August & Caldwell, P.C., Farmington Hills, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART, DENYING DEFENDANTS' MOTION IN LIMINE AS MOOT, DISMISSING COUNTS TWO, THREE, AND FOUR, AND DISMISSING COUNT FIVE IN PART

THOMAS L. LUDINGTON, United States District Judge

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.

I.

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.

A.

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).

B.

1.

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.

2.

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 L_EQ 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 1–hour L_EQ metric is used by certain international...