Tonight the Arcadia township planning commission will meet at 7:00 p.m. The commission is expected to recommend the repeal of Arcadia township’s existing wind energy ordinance, which took effect in 2009. The planning commission and township board have determined that the existing ordinance does not adequately protect the health, safety, and welfare of Arcadia residents.
Township leaders are proposing repealing the existing wind energy ordinance until such time as a new master plan is completed. Under Michigan law, a zoning ordinance must be based on a community’s master plan. The proposed repeal of the existing wind ordinance would not take effect until the proposal is acted on by the township board at a meeting in January or February.
Under the provisions of Arcadia’s current zoning ordinance, an industrial wind turbine complex would be permitted as long as turbines were less than 300 ft. high. A wind turbine applicant would have to apply to the township for a special use permit. However, the township board has imposed a moratorium on the review of any such special use permit until February 2012. The current moratorium has a provision for a 3 month extension.
The rationale for this decision is explained in the memorandum from the township attorney found below. You can also download the memorandum in PDF format here.
AWSG is in the process of reviewing this proposed action, and determining whether and what additional actions might be required to protect the citizens of Arcadia.
TO: Arcadia Township Planning Commission and Township Board
FROM: Craig A. Rolfe, Township Attorney
RE: Legal guidance and recommendations relating to approaching expiration of moratorium on the acceptance of applications for utility grid wind energy systems and the implications of Master Plan update project
DATE: December 2, 2011
Purpose of Memorandum
On February 10, 2011 the Arcadia Township Board adopted a resolution imposing a moratorium on the acceptance of applications for zoning approvals for or associated with any utility grid wind energy system land use, for an initial period of six months and subject to extension. On August 11, 2011 the Township Board adopted a resolution extending the initial moratorium for an additional six month period. The initial moratorium action, and the six month extension, were both supported by recommendations of the Arcadia Township Planning Commission.
The extended moratorium will therefore expire on or about February 11, 2012.
This memorandum is intended to provide legal guidance, including specific resulting recommendations, to the Planning Commission and Township Board as the expiration of the moratorium approaches. To best understand this legal guidance it is important to review the purpose of the moratorium, in the context of statutory requirements relating to planning and zoning. However, it is appropriate to first review the relatively recent history relating to the rather abrupt potential for large utility wind energy projects in Michigan.
The Emergence of Commercial Wind Energy as a Creation of State Energy Policy
Commercial wind energy was a subject of municipal planning and zoning attention only marginally, if at all, before 2008-2009. Pursuant to 2008 Public Act 295, which became effective October 6, 2008, the State of Michigan mandated certain providers of electric service establish renewable energy programs. This legislation also created a temporary entity known as the Michigan Wind Energy Resource Zone Board (MWERZB), and provided for the powers and duties of that Board. Those duties included preparation of a report addressing the potential and viability of wind as a source of commercial energy generation in Michigan, and identifying the regions in the state with the highest level of wind energy harvest potential. The final report of the MWERZB, dated October 15, 2009, identified four regions within Michigan determined by that Board to have the highest potential for wind energy. The southerly edge of one such region (Region 3) includes Arcadia Township.
Upon considering the report of the MWERZB, as provided by 2008 Public Act 295, the Michigan Public Service Commission on January 27, 2010 issued its final Order as required by that law. That Order did not designate Region 3 as a Wind Energy Resource Zone.
Contemporaneous with the issuance of the report of the MWERZB in October 2009, and subsequently, the State of Michigan has consistently advised that decisions regarding various aspects of the siting of utility scale wind energy systems remain under the province of local planning and zoning authorities. Arcadia Township responded proactively to the state pronouncements by including in the Arcadia Township Zoning Ordinance various basic provisions pertaining to what was defined and regulated therein as a “utility grid wind energy system” land use. Those regulations were added to the Zoning Ordinance pursuant to an amendatory ordinance (Ordinance No. 170) that became effective in October of 2009. The regulations in that ordinance were significantly based on sample/suggested zoning language standards made available through Michigan State University and the State of Michigan. At that time Arcadia Township did not have any particular basis to envision utility scale wind turbine structures with a height approaching twice the 300 foot limitation included in Ordinance No. 170.
In 2010 Arcadia Township became aware that at least one utility company was planning or considering a large scale utility wind energy project in portions of Benzie County and Manistee County, including Arcadia Township, despite the exclusion of Region 3 from the Wind Energy Resource Zone designation by the Michigan Public Service Commission in it’s January 27, 2010 Order. Based on information subsequently made available on a Duke Energy website, the Township learned that company’s so- called “Gail Wind Project” encompassed approximately 12,000 acres and 112 wind turbines with a height of at least 495 feet, a number of which were evidently proposed to be sited in Arcadia Township.
For better or worse, the implications of the new energy policy of the State of Michigan enacted pursuant to the above-referenced Act 295 began to converge, timewise, with the beginning of the efforts of the Arcadia Township Planning Commission to comprehensively update the existing Arcadia Township Master Plan. The next segment of this memorandum briefly addresses this subject, factually, and with reference to applicable legal requirements.
Anticipated Updating of 2004 Arcadia Township Master Plan
The existing Arcadia Township Master Plan was adopted in 2004. The Township Planning Act under which the 2004 Master Plan was prepared and adopted (Township Planning Act) was repealed in 2008 and replaced by the consolidated Michigan Planning Enabling Act (MPEA). MCL 125.3801 et. seq. Arcadia Township is required by the MPEA to have a Master Plan “as a guide for development” within the Township. MCL 125.3831. The content of a Master Plan and the process relating to the preparation and approval of such a Plan is now comprehensively regulated by the MPEA.
The Township Planning Commission is required by the MPEA to review an existing Master Plan at least every five years after adoption, and determine whether to commence the procedure to amend the Master Plan or to adopt a new Master Plan. The Township Planning Commission has undertaken a review of the 2004 Master Plan pursuant to this statutory requirement, and determined it is appropriate to begin the procedure to update the 2004 Master Plan (whether by amendment or by a new Plan).
I understand initial discussions relating to a joint municipal planning effort occurred in 2009, as an offshoot of the “M22 Economic Development Strategy” project undertaken by the Village of Onekama and the Townships of Arcadia and Onekama, with assistance from the Manistee Alliance for Economic Success (AES). Dissemination of final data from the 2010 United States Census provided some additional incentive to update the existing Master Plan. Indeed, I understand when the Planning Commission reviewed the 2004 Master Plan in 2009 it concluded a Plan re- write should begin when the 2010 census data became available.
The Planning Commission has officially determined to undertake its Master Plan update pursuant to an expanded collaborative effort involving several townships in Manistee County and Benzie County. This collaborative effort, undertaken with assistance from the AES, is anticipated to enable the participating communities to identify joint solutions for shared issues and opportunities, while also reflecting the unique character of each community, including natural resources, and open space and recreation resources. This collaborative planning effort will also include strategies by which each participating community may implement the Plan, including recommendations to achieve a “preferred future” that may involve new or modified zoning ordinances. This joint planning effort in which Arcadia Township is now participating is notably consistent with policies of the current administration in Lansing that encourage municipal neighbors to collaborate on municipal activities and services where feasible.
Arcadia Township is Not Legally Required to Allow a Specific Land Use Project to Disrupt the Timing or Substance of a Deliberative Planning/Zoning Update Process
From my perspective, and I believe yours, the timing of the potential Gail Wind project by Duke Energy has been most unfortunate from a planning/zoning perspective. The potential implications of this massive project have clearly overshadowed (no pun intended) many other issues of importance in the community, and created adverse repercussions for a “normal” timeline for the planning/zoning update process. While the convergence of the Gail Wind project and the planning/zoning update process is coincidental, the resulting disruptive influences of that project on the planning/zoning process are presently undeniable. This brings us to the issue of how the Township has responded to these influences via the moratorium, and what comes next.
In imposing the moratorium the Township Board determined, upon Planning Commission recommendation, that the existing Zoning Ordinance may not provide sufficient regulations to properly evaluate an application for a utility grid wind energy system with the potential impact of the proposed Gail Wind project, which entails turbines with a proposed height substantially exceeding the approvable height for such structures as specified in the existing zoning regulations. Moreover, the Planning Commission identified the need to carefully review the Township Master Plan and Zoning Ordinance in light of developing technology and trends in wind energy development, and recognized that such review may implicate consideration of changes to the Master Plan and/or Zoning Ordinance in order to prevent negatively impacting the health, safety and welfare of current and future area property owners and residents.
In conjunction with the moratorium Township officials engaged in various educational opportunities to better understand wind energy development and the impacts of utility-scale wind energy land uses on the community, including a collaborative educational endeavor known as the Understanding Wind Energy Initiative (UWEI) undertaken by five townships encompassing MWERZB Region 3 and facilitated by the AES. This Initiative, managed by a research team from Macalester College in St. Paul, Minnesota, was intended to objectively inform and educate all interests about wind energy alternatives, and to provide guidance for the development of township planning policies and ordinances that are responsive to community concerns and goals relating to wind energy land uses. The ongoing Understanding Wind Energy Initiative project has thus far included a community Survey conducted in July-August 2011, a Symposium held July 6, 2011, and a resulting Questions and Responses Report (issued in draft form October 5, 2011).
According to the Survey of the Understanding Wind Energy Initiative 68.7% of the respondents from Arcadia Township indicated they either “strongly oppose” (56.9%) or “oppose” (11.8%) wind energy development in Arcadia Township. Only 13.7% of those respondents indicated they “support” (7.8%) or “strongly support” (5.9%) wind energy development in Arcadia Township (7.4% were “neutral”).
The Survey of the Understanding Wind Energy Initiative also disclosed considerable negative responses from the Arcadia Township respondents on the impact of various issues associated with utility scale wind energy land uses, including the below-designated percentages of “very negative” or “negative” opinions on the following issues:
Local Scenic Beauty—89.7%.
Local Property Values—86.4%.
Attracting Seasonal Residents—86.5%.
Appearance of the Night Sky—81.9%.
Bats, Birds and Other Wildlife—88.3%.
Unique and otherwise significant natural assets within Arcadia Township, including but not limited to the Arcadia Dunes, the C.S. Mott Nature Preserve and Arcadia Marsh Nature Preserve owned and managed by the Grand Traverse Regional Land Conservancy, and over six miles of Lake Michigan shoreline, are widely recognized as being of great importance to not only Arcadia Township residents but also to the greater Manistee County/Benzie County area, as well as Northern Michigan more generally. The potential impacts of a utility grid wind energy system on these natural assets are generally perceived to be negative and unacceptable.
It is of course important to recognize the existing and any future work product from the Understanding Wind Energy Initiative, including the results of the community Survey, do not constitute the entire source of knowledge and information to be considered by Township officials to properly analyze and understand the impacts of utility-scale wind energy land uses and determine a resulting policy direction for the Township. The next segment of this memorandum thus discusses certain options that are cognizant of the impending expiration of the moratorium without intending to suggest any ultimate Township policy decision that is not preceded by completion of the Master Plan update process.
When the Planning Commission and Township Board review this memorandum as anticipated at their respective meetings in early December the Township will be within about two months of the expiration of the moratorium (on or about February 11, 2012). This short timeline presents significant practical and legal issues relating to expiration of the moratorium and the Township’s options.
Detailed review of the work product of the Understanding Wind Energy Initiative, and other input, could cause the Planning Commission/Township Board to conclude the existing provisions in the Zoning Ordinance relating to utility grid wind energy land uses should be replaced by significantly more comprehensive substantive regulations, as well as more detailed application/review procedures. In the alternative, upon reviewing that work product and other input the Township could reach a different conclusion with respect to the underlying appropriateness of such land uses in the Township.
In my opinion it is legally premature, and also unnecessary, for the Township to at this time reach either of these conclusions, or any other conclusion, as the ultimate policy direction of the Township with respect to utility grid wind energy land uses. That ultimate policy decision, whatever it may be, will have enormous significance for the future of the Township, and should therefore be made only after the present Master Plan update process has been completed. The updated Master Plan resulting from that process, and frankly the process itself, will inevitably provide critical guidance for any subsequent zoning decisions directly or indirectly related to utility grid wind energy land uses, including potential consideration of Zoning Ordinance amendments associated with implementing the updated Master Plan.
The Michigan Zoning Enabling Act expressly requires a Zoning Ordinance to be “based upon a plan” designed to, among other things, “promote the public health, safety, and general welfare”, “encourage the use of lands in accordance with their character and adaptability”, and “to ensure that uses of the land shall be situated in appropriate locations and relationships”. I am concerned that expediting comprehensive Zoning Ordinance amendments relating to utility scale wind energy land uses, at this time, as the Master Plan comprehensive update process is only beginning, will denigrate this most fundamental statutory requirement to base the Zoning Ordinance upon the Plan, and not vice-versa. The old saying about “putting the cart before the horse” certainly comes to mind here.
As the expiration of the moratorium now rapidly approaches I recommend the Township pursue a course that appropriately recognizes the legal relationship between sound planning, and zoning, that fully respects the importance and value of a deliberative planning/zoning update process, and that enables that process to occur without undue influence from any potential utility grid wind energy system development in the Township. Specifically, I recommend repealing the existing provisions pertaining to utility grid wind energy land uses, added to the Zoning Ordinance by Ordinance No. 170, pending the completion of the Master Plan update process and subsequent consideration of potential amendments to the Zoning Ordinance oriented towards implementing the updated Master Plan.
The legal rationale for this recommended course at the present time should already be clear pursuant to previous portions of this memorandum, and thus need not be further reviewed here. However, this recommendation also takes into account the practical realities associated with any decision, at this time, to replace the existing provisions in the Zoning Ordinance relating to utility grid wind energy land uses with more comprehensive substantive regulations and more detailed application/review procedures. As any such new ordinance provisions would be drafted and reviewed over a period of several months it is simply impossible to complete the legal procedures prescribed by the Michigan Zoning Enabling Act for any such Zoning Ordinance amendments before expiration of the moratorium. The choice of this path at this time would therefore necessitate some consideration of a further lengthy extension of the existing moratorium; or, the alternative, completing the required procedures associated with Zoning Ordinance text amendments without a moratorium remaining in effect.
In my opinion both of these scenarios have serious pitfalls. I am not comfortable advising the Township that it may once again extend the moratorium for any significant period of time, due to the lack of solid legal authority to do so. The latter scenario also does not strike me as viable, as it would create an opportunity for the filing of an application for zoning approval of a utility grid wind energy system pursuant to the existing provisions in the Zoning Ordinance regulating that land use, which the Planning Commission has already determined to no longer be adequate at this time to properly protect the health, safety, and general welfare of the property owners and residents of Arcadia Township.
The course of action I am recommending allows the Township to avoid disrupting the Master Plan update process with legally premature substantive amendments of the Zoning Ordinance and/or an application for development of a utility grid wind energy system pursuant to the existing ordinance provisions the Planning Commission has already deemed inadequate, without presuming what policy direction Arcadia Township may ultimately adopt with respect to utility scale wind energy land uses pursuant to guidance from the completed Master Plan update. The next segment of this memorandum anticipates and addresses a significant question associated with this recommendation.
Can the Township Legally Exclude Utility Scale Wind Energy Land Uses from the Township at This Time?
Existing Michigan law provides comprehensive zoning authority to Arcadia Township with respect to determining the permissible land uses in the various zoning districts established by the Zoning Ordinance, and further confers the authority to ensure that uses of land are situated in appropriate locations and relationships to promote public health, safety, and welfare. Utility scale wind energy land uses are subject to this comprehensive zoning authority.
Although the State of Michigan has determined, as a matter of general state policy, that utilities in the state should generate 10% of electricity from renewable sources by 2015 (2008 Public Act 295), no state law requires any such renewable energy generation facility to be located in Arcadia Township, and there is presently no demonstrated public need for a utility grid wind energy system within either Arcadia Township or the surrounding area within this state.
The special natural characteristics of Arcadia Township as a Lake Michigan shoreline community, the significant undeveloped natural resources within the Township, and the established relationship between these natural resources/shoreline community characteristics and the economic health of the community create a serious question as to whether there is any location within Arcadia Township where a large utility grid wind energy system may be appropriately located, based on the current technology (which it is appropriate to note continues to evolve rather rapidly).
The Michigan Zoning Enabling Act expressly allows a township zoning ordinance to totally prohibit the establishment of a land use within the community if there is “(no) demonstrated need for that land use” within the township or the surrounding area; or if “a location within the local unit of government does not exist where the use may be appropriately located”. MCL 125.3207. In my opinion either or both of these circumstances can be shown to be applicable at this time.
Although this memorandum is not intended to serve as a “legal brief” on this issue, in preparing this guidance to the Township I have prudently considered whether Duke Energy would be unfairly prejudiced by repealing from the Zoning Ordinance the existing provisions relating to utility grid wind energy land uses, pending completion of the Master Plan update process and consideration of subsequent amendments of the Zoning Ordinance in the context of implementing the updated Master Plan. It is worth noting in this regard that any specific proposal involving turbine structures exceeding the 300 foot maximum height limitation in the existing Ordinance provisions, such as the turbine structures associated with the Gale Wind project, would clearly not be approvable under those existing regulations.
One or more members of the Planning Commission, or perhaps the Township Board, may prudently inquire as to whether there is legal “risk” associated with this course of action. The answer to any such question will of course be “yes”. Any person or entity able to employ an attorney, and who has the nominal filing fee required to initiate a court case, can file suit against the Township on whatever grounds a lawyer may be able to contrive. However, the Township has its own attorney, and insurance coverage, to properly defend the interests of the Township against legal claims.
As virtually any course of action the Township may take on this subject matter could be considered to have some inherent risk, whether the risk of a legal action being asserted against the Township or the risk of a proposal to develop a land use presently understood to have unacceptable impacts on the Township, I respectfully suggest the real question is whether the Township is willing to accept whatever risk may be involved with such course of action as the Township determines to be in the overall best interests of the Township.
In my opinion all the above-discussed factual and legal considerations, along with others not noted herein, support what seems to be the most sensible option available to the Township as the expiration of the moratorium now rapidly approaches— remove from the Zoning Ordinance the existing provisions relating to utility grid wind energy land uses, which the Planning Commission has deemed to be inadequate to properly protect the health, safety, and general welfare of the property owners and residents of Arcadia Township, and defer any consideration of amending the Zoning Ordinance to include new provisions on this land use until the previously initiated Master Plan comprehensive update process has been completed in a deliberative manner consistent with sound planning principles, but without the intrusive implications of any particular siting proposal involving a utility grid wind energy system.
Timeline to Complete Required Legal Process to Repeal Provisions of Existing Zoning Ordinance Relating to Utility Grid Wind Energy Systems
If the Township intends to remove from the Zoning Ordinance the existing provisions in the Zoning Ordinance relating to utility grid wind energy land uses, before the expiration of the present moratorium, it will be necessary to follow a rigid timeline to complete all the required procedures associated with that type of action.
Removing those existing provisions from the Zoning Ordinance is accomplished by amending the Zoning Ordinance. The Michigan Zoning Enabling Act requires amendments of the Zoning Ordinance to be considered and acted-upon pursuant to the same procedures that apply to adopting a new Zoning Ordinance. This process begins with a public hearing held by the Township Planning Commission, preceded by proper Notice as required by the statute. Pursuant to this public hearing the Planning Commission makes a recommendation to the Township Board. However, in Manistee County such a recommendation must first be submitted to the County Planning Commission for its advisory input, or at least a 30 day opportunity to provide such input, before the Township Board may take formal action on the proposed amendments.
If the intended action is repeal of the existing provisions, that action is taken by adopting the appropriate repeal ordinance. Such a repeal ordinance would generally become effective on the 8th day after publication of a Notice of Adoption of the ordinance in the local newspaper. The necessary timeline for all of the steps of the process to be completed before the expiration of the current moratorium are as follows: