Ordinances spark lawsuit from downstate wind company
MANISTIQUE – Four months after a Gardenrelated lawsuit was brought against Heritage Sustainable Energy, LLC, the company has filed a lawsuit of its own against Garden Township. The lawsuit was filed in 47th Judicial Court in Delta County on May 12.
In January, the Garden Peninsula Foundation entered a lawsuit against Heritage, claiming the company commenced operation of 14 wind turbines on the Garden Peninsula in 2012 without first obtaining an environmental impact assessment from a federal or state agency. The complaint also alleged the plaintiffs experienced “negative impacts to their health and well-being, use and enjoyment of their property and diminution in value of their property due to turbines”.
On May 12, Heritage filed a lawsuit against Garden Township, alleging the township adopted “restrictive” ordinances limiting noise levels from the company’s existing Garden Wind Farm. In the process of adopting Ordinance 2014-1 and the amended version, Ordinance 2015-2, the Heritage lawsuit alleges that three voting members of the Garden Township Board voted for the ordinances, therefore engaging in a conflict of interest.
According to the complaint, Garden Township Board Trustee Margaret Richard and Trustee Janet Feenstra Daasch, as the director the Garden Peninsula Foundation, are plaintiffs in the lawsuit filed against Heritage in January. In addition, the lawsuit points out that Township Supervisor Ray Young participated in the drafting and voting in favor of ordinances 2014-1 and 2015-2, despite the fact that his daughter, Nicole Young, is also a plaintiff of the January lawsuit.
The ordinances, each named “Nuisance Noise Abatement Ordinance”, were adopted in December and February, respectively. The lawsuit states the ordinances “impose sound pressure level limits which are drastically more restrictive than the sound pressure level limits provided in the Delta County Zoning Ordinance”.
The ordinances stipulate that no activity from 10 a.m.-6 p.m., other than that protected by the Michigan Right to Farm Act, be over “35 dB(A) at the property line of the person or persons receiving such noise.” Delta County’s ordinance sets a limit for utility wind energy grid systems of 55 dB(A) at the property lines or the lease unit boundary.
The Garden Township Board’s ordinances also include a 50 dB(C) limit at the property line of the property from which the sound is emanating. Heritage’s lawsuit claims the Delta County Ordinance contains no limits for dB(C) sound pressure levels.
“Certainty of compliance with the restrictions in Ordinance 2015- 2 would require that wind turbines be set back over one mile from property lines, which effectively excludes commercial wind turbine land use in Garden Township,” the lawsuit reads. “The sound pressure level from Heritage’s utility grid wind energy land use in Garden Township was designed to the same sound pressure level criteria as were subsequently adopted in the Delta County Zoning Ordinance.”
The lawsuit goes on to state that if Heritage were to comply with the adopted Garden Township ordinances, shutdowns during the hours of 10 p.m.-6 p.m. would result in a “significant loss of revenue to Heritage, loss of royalty payments to Heritage’s wind energy lease lessors, and significant reductions in the amount of electricity generated and supplied to the Upper Peninsula electric transmission grid.”
Heritage, via the lawsuit, requests relief in the form of : a declaratory judgement that the ordinance 2014-1 and 2015-2 are preempted by the Delta County Zoning Ordinance; a declaratory judgement that Ordinance 2014- 1 is invalid because it constitutes an unconstitutional deprivation of procedural due process; a declaratory judgement that ordinances 2014-1 and 2015-2 are invalid because they constitute an unconstitutional deprivation of substantive due process; a declaratory judgement that ordinances 2014-1 and 2015-2 are invalid and of no legal effect and that Garden Township should require that Supervisor Young and trustees Richard and Daasch recuse themselves from all further discussion, vote or involvement in ordinances or other township actions affecting operation of Heritage’s Garden Wind Farm; a declaratory judgement that ordinances 2014-1 and 2015-2 are invalid and of no legal effect; a declaratory judgement that the plaintiff’s continued use and operation of its 14 existing wind turbines in the same manner as they have been operated prior to the adoption of ordinances 2014-1 and 2015-2; a declaratory judgement that Garden Township is equitably estopped from enforcing ordinances 2014-1 and 2015-2 against Heritage with respect to its continued operation of its 14 existing wind turbines; and a preliminary and permanent injunctive relief against defendant, enjoining defendant from enforcing ordinances 2014-1 and 2015-2 against plaintiffs with respect to sound emanating from plaintiffs; wind turbines.
The lawsuit also requests that the township pay Heritage’s costs and attorney fees associated with the filing.
In addition to the two Garden related lawsuits, Heritage Sustainable Energy, LLC also has one lawsuit pending against Schoolcraft County. Read more about that lawsuit here: www.pioneertribune.com/news/2015-01- 01/Front_ Page/Heritage_ Energy_ suing_ county.html