Douglass Township facing questions about improperly noticed, never-published 2017 wind ordinance 

According to the Michigan Zoning Enabling Act (MCL 125.3401), “A zoning ordinance shall take effect upon the expiration of seven days after publication as required by subsection (7) or at such later date after publication as may be specified by the legislative body or charter. Following adoption of a zoning ordinance or any subsequent amendments by the legislative body, the zoning ordinance or subsequent amendments shall be filed with the clerk of the legislative body, and a notice of ordinance adoption shall be published in a newspaper of general circulation in the local unit of government within 15 days after adoption.”

The only related item the Daily News found in its pages was a legal notice published on Oct. 16, 2017, regarding a hearing scheduled for Oct. 25, 2017, to discuss an “amendment to allow and regulate wind energy systems,” along with an amendment prohibiting medical marijuana facilities and an amendment to Flat River zoning district regulations. Douglass Township wasn’t even named in that notice – the Daily News was able to verify the notice was submitted by Douglass Township Clerk Ronda Snyder after the Daily News reviewed its own legal billing records.

Also, that notice was published nine days before the hearing – not 15 days before, as is required by law.

According to MCL 125.3103, “If a local unit of government conducts a public hearing required under this act, the local unit of government shall publish notice of the hearing in a newspaper of general circulation in the local unit of government not less than 15 days before the date of the hearing.

‘NULL AND VOID’

Ohio-based attorney Joshua Nolan, who works for a group of Douglass Township residents, emailed Douglass Township on Monday to alert township officials to the issue.

“The defects in question precluded the 2017 wind ordinance from ever going into effect, leaving Douglass Township without any applicable regulations for wind energy,” Nolan wrote. “The Douglass Township Planning Commission and Douglass Township Board failed to follow the process set forth in the Michigan Zoning Enabling Act in adopting the 2017 wind ordinance. Therefore, because that zoning ordinance amendment was not adopted in accordance with the procedures set forth in MCL 125.3103 and 125.3401, it never became effective and is now null and void.”

Nolan alleged the township failed to provide proper notice for its Oct. 25, 2017, public hearing and also failed to publish a notice of adoption of the wind ordinance after it was voted on by the township board.

“There has been discussion among some Douglass Township Board members that no amendments to their current wind energy zoning ordinance are necessary,” Nolan wrote. “However, because Douglass Township does not have a properly enacted wind energy zoning ordinance, my clients hope that we can move past such rhetoric and focus on creating a wind energy zoning ordinance that protects the health, safety and welfare of all Douglass Township residents.”

‘MUCH ADO ABOUT NOTHING’

Douglass Township’s attorney, Ron Redick of Mika Meyers, previously cautioned residents at a December 2021 meeting against initiating a referendum against a new wind ordinance when it is approved by the township board, saying the township would then revert to the 2017 ordinance.

“I could not think of a worse idea for those who are in the anti-wind camp to try to do a referendum on this ordinance thinking that that’s going to benefit your position, because if you do it, it will revert back to the 2017 ordinance that is on the books and is woefully inadequate for regulating this subject matter,” Redick said. “If you referendum this ordinance, that’s what you’re going to get – a wind company that can do just about anything they want in this township. The alternative is much worse if you referendum it and you go back to the 2017 ordinance. Apex (Clean Energy) will be able to do just about whatever it wants.”

When contacted by the Daily News for comment on Tuesday, Redick said he has not yet had a chance to independently verify Nolan’s claims.

“But, assuming they’re true, I consider this to be much ado about nothing as we’re working on a new ordinance now,” Redick said. “There’s a moratorium currently in place (which expires in August) so because of the moratorium it doesn’t matter what the status is of the 2017 ordinance is in the meantime. When the new ordinance gets adopted, that will be the ordinance that’s in effect which people will have to apply under.

“The thing that’s absent from Mr. Nolan’s letter is the discussion of any Michigan case law on this subject,” Redick added. “There’s a number of cases that reject his conclusion. When there’s technical deficiencies in the adoption of any ordinance and they’re not brought up until four years later, the courts have rejected those challenges. The courts just will not entertain those types of claims.”

Redick cited the following case law as precedent: Northville Area Nonprofit Housing Corp. vs. Walled Lake (1972), Edel vs. Filer Township (1973) and City of Jackson vs. Thompson-McCully Co. (2000).

Redick pointed to Northville vs. Walled Lake as the case law most on point as that case dealt with an ordinance that was improperly noticed more than four years before it was contested in court, similar to Douglass Township’s timeline.

“This is really all a moot point given the fact that a moratorium is in place and the 2017 ordinance will be replaced by the new ordinance that the Planning Commission is working on,” Redick said regarding Douglass Township.

‘WE NEED TO QUIT FIGHTING’

The Daily News also asked township clerk Snyder and Supervisor Terry Anderson for comment.

“I will have to look into it, but if that’s the case, then all the more reason we need to quit fighting and get something done,” Snyder said.

“If the new ordinance we are working on gets passed and it does not go to a referendum, the 2017 one doesn’t mean anything anyway,” Anderson said. “If they (residents) referendum this (new) one, then it would become an issue.”

The Douglass Township Board is next scheduled to meet at 7 p.m. tonight.