BAD AXE — The county is considering lawyering up in response to a list of more than 50 residents asking to be excluded from an area being primed for a batch of 50 to 70 wind turbines.
County attorney Stephen Allen this week said county commissioners should hire outside legal counsel to determine whether allowing that many residents to opt out would create spot zoning.
Spot zoning, which many sources say is generally a bad practice, can occur when officials zone a small area or parcel for uses contrary to surrounding areas.
The zoning could conflict with a county’s master plan and allow for land use not afforded to the large majority of nearby parcels.
Put simply, officials say it creates a zoning area that looks like Swiss cheese.
Spot zoning is typically ruled invalid if challenged in court, according to the nonprofit Michigan Association of Planning. Michigan’s Zoning Enabling Act of 2006 and Planning Enabling Act of 2008 make no mention of the term.
John Nugent, a county commissioner and planner, says there will be a resolution on the board of commissioners’ agenda next week to spend up to $2,500 to clarify whether Huron’s scenario would create spot zoning.
Nugent says the list of residents wanting out of the project creates an “extraordinary situation.”
Documents included in a packet for a board of commissioners meeting read: “We the undersigned residents of Lincoln Township hereby request to be removed from the commercial wind overlay district. Signed April 2016.”
The documents list more than 50 signatures with addresses, dated between April 6 and April 14. Some are from landowners already under easement with DTE, including Lincoln Trustee John Wisneski.
Jeff Smith, the county’s building and zoning director, says the county has never had so many “opt-outs.”
Smith also asked why some who signed leases with DTE now want out of the project, without giving explanation — considering some may have already cashed checks, he said.
Allen says he’s worked as corporate counsel for the board of commissioners since 1999, but that he doesn’t get involved in the wind energy overlay process. He advised the county seek Detroit-based Clark Hill PLC for legal counsel.
DTE Energy is in early stages to build 50 to 70 turbines across four townships.
A project planning area covers 61 square miles and more than 39,000 acres — 22,000 in Lincoln Township. DTE says it has 21,000 acres under contract for wind development with about 100 landowners and is talking with other landowners.
DTE says its plan far exceeds county requirements.
Project Manager Matt Wagner says Allen’s advice applies to site plan review, a stage that planners aren’t at.
“I have no doubt that we’ve met the requirements,” Wagner told county planners.
Member Terry Heck asked how “overwhelming opposition” factors in if all planning and zoning requirements are met.
“It doesn’t matter if people … don’t like it,” Allen said.
If all requirements are met and officials make a decision based on reason, “they’re stuck with it,” he said. Disallowing the project in such case would be capricious, according to Allen.
However, officials noted the option of a referendum, which a resident may initiate by collecting signatures within the zoning jurisdiction to reverse such a decision.
“People always have the final say,” Planning Vice Chair Bernie Creguer said.