Heritage Sustainable Energy sues Garden Township 

GARDEN TOWNSHIP – Heritage Sustainable Energy is suing Garden Township for creating two noise ordinances that allegedly are unconstitutional, invalid, and were created with conflict of interest.

The complaint was filed May 12th and deals specifically with Garden Township Ordinances 2014-1 and 2015-2.

Heritage Energy is also claiming that Ordinances 2014-1 and 2015-2 are extremely restrictive when compared to the Delta County Zoning Ordinance.

According to Ordinance 2014-1 “From the hours 10pm-6am the sound pressure levels must be 35 dB.” That is a 10-20 dB difference when compared to the 45/55 dB limit provided by Delta County Zoning Ordinance.

The statements of facts are:

-Heritage Garden Wind Farm LLC and Heritage Sustainable Energy LLC owns and operates 14 wind turbines, 24 hours a day, in the Garden Township, Delta County.

-Delta County has a Zoning Ordinance that already includes sound pressure level limits for the county. “The sound pressure level shall not exceed 55 dB, measured at the property lines or lease unit boundary, whichever is farther. OR a limit of 45 dB measured at the existing dwelling, whichever measurement is less.”

-Garden Township adopted Ordinance 2014-1 titled Nuisance Noise Abatement Ordinance on December 9th, 2014.

-Garden Township adopted Ordinance 2015-2 titled Nuisance Noise Abatement Ordinance which amended Ordinance 2014-1, and will become effective June 1, 2015.

-Several Garden Township Trustees that voted on the ordinances are directly involved in a separate lawsuit against Heritage Energy.

-Township Supervisor Ray Young is the father of a plaintiff in a separate lawsuit against Heritage Energy.

-Heritage Energy created a letter on March 30th asking the board to acknowledge that Ordinances 2014-1 and 2015-2 are void and of no legal effect because of conflicts of interest in Township board members.

-Garden Township has not responded to the March 30th letter.

The complaint has eight counts against the township.

Count 1: Preemption

Heritage Energy is claiming ordinances 2014-1 and 2015-2 impose sound pressure level limits that are more restrictive than the sound pressure level limits provided by the Delta County Zoning Ordinance.

From the hours 10pm-6am the levels must be 35 dB (compared to the 45/55 dB limit provided by Delta County Zoning Ordinance)

-Result: Heritage Energy is asking that a judgement is made stating that ordinances 2014-1 and 2015-2 are overruled by the Delta County Zoning Ordinance.

Count 2: Violation of Procedural Due Process

Heritage Energy is claiming that the two Garden Township ordinances are unconstitutional, because they deprive Heritage Energy of their procedural due process rights under the 5th and 14th amendments.

-Result: Heritage Energy is asking that a declaratory judgement is made that Ordinance 2014-1 is invalid.

Count 3: Violation of Substantive Due Process

Heritage Energy is claiming that sound pressure levels that do not exceed the level limits provided in the Delta County Zoning Ordinance are not a public nuisance.

-Result: Heritage Energy is asking that a judgement is made that both ordinances 2014-1 and 2015-2 are invalid.

Count 4: Conflict of Interest

Several Garden Township Trustees that voted on the ordinances are directly involved in a separate lawsuit against Heritage Energy.

Township Supervisor Ray Young is the father of a plaintiff in a separate lawsuit against Heritage Energy.

-Result: Heritage Energy is asking that the ordinances are invalid and of no legal effect, and that Garden Township should require Supervisor Young and Trustees Richard and Daasch remove themselves from all further discussion, vote or involvement in ordinances or actions involving operation of the Heritage Garden Wind Farm.

Count 5: Open Meeting Act

Heritage Energy states that allegedly both ordinances were voted on in meetings behind locked doors, were not open to the public, and failed to give the public notice of the meetings.

Count 6: Non-Conforming Use

The 14 wind turbines were constructed and have been in operation since September 14, 2012.

-Result: Heritage Energy is asking that a declaratory judgement is made that the 14 existing wind turbines can be used in the same manner as they have been operated prior to the ordinances.

Count 7: Equitable Estoppel

The 14 wind turbines were constructed and have been in operation since September 14, 2012. Constructing the 14 turbines cost in excess of $50 million.

Before the project began the Garden Township supervisor and several zoning officials witnessed an operational wind farm. At that time the Garden Township did not express any dissatisfaction with sound levels.

-Result: Heritage Energy is asking that a declaratory judgment is made that Garden Township is equitable estopped from enforcing the two ordinances against Heritage with respect to its continued operation of the 14 existing wind turbines.

Count 8: Injunctive Relief

Heritage Energy is asking that permanent relief is given to the company from Garden Township ever enforcing the two ordinances.