ALMER TOWNSHIP — Almer Township and its Board of Trustees face a federal lawsuit by a subsidiary of NextEra Energy Resources LLC over a proposed wind energy development.
Tuscola Wind III LLC is seeking a court order to compel the township, located north of Caro, to allow development of a wind farm to proceed.
The suit, filed last week in U.S. District Court of the Eastern District of Michigan in Bay City, alleges that the township has systematically tried to prevent the project from going forward.
The board, which the suit claims was elected on an anti-wind agenda, enacted a moratorium on wind development and denied a special use permit for the project, according to the suit.
Bryan Garner, manager of communications for NextEra told the Tribune that like any other property owner, NextEra has a right to have the project considered.
“The project complies with the rules that Almer Township already established. We therefore have a right, just like any property owner, to have the project considered and approved. But after we submitted our application, the new Almer Township Board ignored the law and changed the rules to fit their personal agenda.
“It’s like changing the rules of a football game in the fourth quarter because the ref doesn’t like who’s winning. That’s not right, and we filed a lawsuit against the board, asking a judge to tell them it’s not right.
Unlike Almer Township, Huron County has followed its established processes in evaluating our wind project. They have played by the rules,” he said.
In Huron County, NextEra has garnered county approval to build a wind park in Sherman and Sigel townships. NextEra also proposes to place turbines in self-zoned Sand Beach and Delaware Township, Sanilac County.
Most of that project’s turbines will be in Sherman Township.
Several issues involving wind turbines in Huron County are headed for referendum May 2, including voter approval of the Sherman-Sigel wind overlay district.
Almer Township attorney Michael Homier said the board didn’t change any rules.
“Everything they did was lawful. They did not change any rules. (NextEra) just failed to meet the rules that the township had established long ago.”
The complaint against Almer Township states that the Ellington-Almer Township Concerned Citizens Group was formed in early 2016 “to oppose the project and to pressure the township to enact a much more restrictive wind ordinance.”
“On Nov. 8, 2016, Jim Mantey (Supervisor), Jim Tussey (Trustee), Art Graff (Trustee), and Jim Rosenstangel (Trustee) were elected to the board, along with existing Board members Brian Schriber (Trustee), Peggy Reavey (Clerk), and Patricia Witkovsky (Treasurer).
“Mantey, Tussey, Graff, and Rosenstangel are active members of the (citizen’s group). In fact, Tussey is one of the group’s leaders and the Almer Township resident who hired Mr. Nolan to block the Project,” according to the complaint.
Joshua Nolan is the co-founder and a member of an anti-wind organization based in Toledo, Ohio, which the suit says lobbies against wind energy in Ohio and Michigan. The other co-founder of Interstate Informed Citizens Coalition, according to the complaint, is Kevon Martis, with whom the Lincoln Township Board of Trustees has corresponded in its efforts to establish its own planning commission and put a moratorium on wind development.
Almer Township also hired the same attorney as Lincoln Township: Homier of Foster, Swift, Collins & Smith in Grand Rapids.
Sherman Township has also hired Homier to work on its efforts toward establishing its own planning commission.
The suit says that Homier was providing legal advice to the “anti-wind township board members” before they took office, and that this has been billed to the township.
“We look forward to defending the claims that were made,” Homier said. “I am not going to discuss any specific allegations.”
There is also a dispute over sound measurements.
“The board’s failure to apply an Leq metric in the noise emission standard is not based on competent, material, and substantial evidence on the whole record, is not authorized by law, and does not represent the reasonable exercise of discretion granted by law to the township,” according to the suit.
In the five-count, 49-page suit, NextEra is seeking:
• An order reversing the board’s decision and requiring the board to grant Tuscola Wind III’s special use permit application
• Judgment that the board’s decision on the application and the moratorium are void because they violate Tuscola Wind III’s procedural due process rights under the U.S. Constitution and the Michigan Constitution
• Judgment that the moratorium is not a proper exercise of the township’s police power under Michigan law
• Judgment that the moratorium is void because of the board’s violation of the Open Meetings Act
• Costs, attorney fees, and such other relief this court deems appropriate.
The project is proposed for areas of Fairgrove, Almer, and Ellington townships. The project plan in Almer township includes 87 participating landowners representing 192 parcels.
The project is slated to include 55 wind turbines, totaling 118.6 megawatts. Nineteen of these wind turbines are to be constructed in Almer Township.
“The Tuscola III project will add good jobs, much-needed tax revenue, and an economic boost to the community and should go forward,” Garner said.
NextEra Energy Resources LLC (“NextEra”) is the largest generator of wind energy in the nation. Through its subsidiaries, it operates about 110 wind projects in 20 states and four Canadian provinces.