Appeals court says yes to $120M Clinton County wind project 

LANSING – A proposed $120 million wind-power project has cleared another legal hurdle, bringing electricity production a step closer to reality across rural land in three Clinton County townships.

In response to the Michigan Court of Appeals decision, the boards of Dallas, Essex and Bengal townships have called a special joint meeting Thursday night to consider options in their two-year effort to block or downsize Forest Hill Energy’s proposed 39-turbine project.

Last Thursday, the three-judge appeals panel upheld a lower court ruling that invalidated the restrictive ordinances the townships enacted in late 2012.

The panel agreed the project is governed by the county’s zoning ordinance, which commissioners passed in 2011 en route to project approval.

In a scramble to block the project, each township passed nearly identical local police-power ordinances restricting height, setback, noise or other elements of the wind farm.

Townships are permitted to adopt zoning ordinances, but the townships chose not to, the appeals panel ruled.

“The county’s (zoning) ordinance became controlling with respect to wind energy systems only because defendants (the townships) failed” to take advantage of the local zoning options that were available to them, the three-judge panel said.

The township boards are likely to discuss their options in closed session Thursday at the Bengal Township Hall and then announce a course of action in an open meeting, said Bill Fahey of Okemos, one of the lawyers who has represented the townships.

According to Fahey, the options include:

■ Asking the Court of Appeals to reconsider

■ Asking the state Supreme Court to accept an appeal of the appeals decision

■ Passing local zoning ordinances that could be more restrictive than the county’s zoning ordinances

■ Passing other ordinances that might restrict noise or shadow flicker from the turbines’ rotating blades

The townships also could decide to drop their resistance to the project.

“We are all disappointed with the ruling,” said Ken Wieber, a Clinton County farmer and project opponent. “We would encourage the townships to pursue whatever legal avenues are left to protect the health of their citizens, especially considering recent rulings from Wisconsin.”

On Oct. 14, the Green Bay-based Brown County Board of Health unanimously declared a wind farm operated by Duke Energy Renewables “a human health hazard for all people (residents, workers, visitors and sensitive passersby) who are exposed to infrasound/low frequency noise and other emissions potentially harmful to human health.”

The Clinton County-vs.-townships dispute brought the project to a standstill 22 months ago – soon after county commissioners issued a special-use permit. Forest Hill Energy filed suit to have the township ordinances tossed out.

Jon Bylsma, the Grand Rapids lawyer who represents Forest Hill Energy, said he was “very pleased that a second court has looked at all the facts and the law and agreed this project is in the purview of the county zoning ordinance and is not something local townships that rejected the opportunity to zone can now jump in on and try to prevent.”

The townships have 42 days to appeal the COA ruling, he said, which “certainly creates some level of uncertainty” for the developer.

“We’re hopeful that looking at this decision, the townships will choose to not spend more taxpayer dollars when two courts have told them that this effort to block the development is illegal,” Bylsma said.

Each of the project’s turbines would top out at 426 feet at the height of the blade rotation. Chicago-based project manager Tim Brown said size matters because the project needs to produce enough power to meet “utility-grade” standards.