CARO — A second lawsuit in as many months has been filed against another township in connection with a NextEra Energy Resources LLC plan to build a $200 million wind farm in central Tuscola County.
This time it is Ellington Township officials being sued in Tuscola County Circuit Court. In February, a lawsuit was filed against Almer Charter Township officials by NextEra Energy in U.S. District Court of the Eastern District of Michigan, Bay City.
A quo warranto lawsuit injunction was filed against Ellington Township and newly appointed planning commission members Eric Zbytowski and Ed Talaski. The suit, which was filed by township residents, contends newly appointed planning commission members shouldn’t have been, seeks to block them from participating in planning commission meetings and wind development proceedings, and claims former planning commission members should be reinstated.
The plaintiffs are former Ellington Township supervisor Duane Lockwood along with township residents David Vollmar and Ronald Cybulski. Their attorney is George Holmes.
A quo warranto filing challenges a person’s right to hold an office. The suit is challenging the appointment of Talaski and Zbytowski to the Ellington Planning Commission.
The plaintiffs each have leased land to NextEra Energy Resources for the proposed development of a wind farm with the expectation of income from those leases. NextEra is in the process of development of a wind energy conversion system — Tuscola Wind III in Almer, Fairgrove and Ellington townships with 55 turbines.
The lawsuit alleges the current township board: Supervisor Russell Speirs, Clerk Bobbie Mozden, Treasurer Carmell Pattullo and Trustee Gregg Campbell have “actively opposed NextEra’s Tuscola Wind III project as part of a political action group called Ellington-Almer Township Concerned Citizens.”
The lawsuit notes on Oct. 11, 2016, a township meeting was changed from Nov. 8 to Nov. 1, 2016, because of an election at the township hall. The suit claims that a notice of the meeting change was not posted at the township hall as required by the state Open Meetings Act.
During the Nov. 1, 2016, meeting the former Ellington Township Board verified the appointments of George Mika and Eugene Davison to the township’s planning commission, each for a three-year term starting Jan. 1 2017. On Nov. 15, 2016, the men each took the oath of office.
The lawsuit contends Mika and Davison are “rightfully entitled to hold office as members of the Ellington Township Planning Commission, and that no court action had been filed seeking invalidation of the Nov. 1, 2016, board action. And, the 60 days to do that has expired.”
Then, during a special township meeting Nov. 22, 2016, (with the new board members seated) summarily concluded that “the things that happened at the Nov. 1, 2016, meeting will be added to the December meeting agenda,” and that a wind energy conversion facilities moratorium ordinance freezing township consideration of the Tuscola Wind III project.”
The lawsuit says that the Open Meetings Act does not empower a public body to invalidate a prior board action, and that only a circuit court in which the meeting took place can remedy with invalidation.
The suit seeks to restrain Talaski and Zbytowski actions as planning commission members until the court takes action. Visiting Circuit Judge Kenneth Schmidt decided Talaski and Zbytowski could remain on the board with stipulation of a moratorium that no decision on wind energy development be made until Tuscola County Circuit Judge Amy Grace Gierhart can preside.
Officials would not comment because of the pending litigation.
In the meantime, there is still NextEra Energy Resources’ February lawsuit pending in federal court against Almer Township and its board of trustees. The lawsuit alleges township officials have systematically tried to prevent the project from going forward, and claims board members were voted into office on an anti-wind agenda, the township violated the state’s Open Meetings Act, violated due process and more.