‘One way or another’; Expert predicts legal fight over wind turbines in county

BURNSIDE TWP. — A costly legal war over wind turbines in northern Lapeer County is such a sure bet that an insurance agent told the Burnside Township Board of Trustees Monday he won’t run the risk of writing an insurance policy for the municipality.

Geoffrey G. Lansky, an agent for EMC Insurance Cos. with The Ted Hartleb Agency of Kalamazoo, apologized to the Burnside Township Board of Trustees after he drove three hours to attend the board’s regular monthly meeting.

Timothy W. Denney, the township’s attorney with Lapeer-based Rickard, Denney, Garno & Associates, told The County Press he asked Lansky to attend the meeting and prepare an updated policy and quote for the township, which needs to renew its insurance by Dec. 1.

Denney said during the meeting “I think we need to take a harder look at the existing policy… because I’m not sure there’s enough,” adding that there are “gaps that I’d like to see filled.”

But after hearing a discussion — and concerns expressed by several citizens — about the potential of wind turbines coming to town, Lansky essentially said “thanks, but no thanks,” stating several times that he “didn’t want to buy a claim.”

“Now I know why I’m here,” Lansky told the board, later adding “you guys are getting in deeper and deeper water, and I don’t know if you can bail yourselves out regardless of the decisions that you make.”

“So I have a financially responsibility to the company, and based on what I’m hearing, I’m not totally enamored by giving you a quote,” Lansky said, with a thick pile of papers at his feet.

Nearly 10 seconds of dead silence followed as audible gasps could be heard from among the more than 20 stunned citizens and board members at the meeting.

Township Supervisor Chad Dempsey broke the silence by saying “That’s the first time I’ve ever heard that.”

The County Press was the first to report on Oct. 8 that property owners in northeast Lapeer County recently have signed 20 agreements with DTE Energy Co. that are specific to “wind energy development.”

A company spokesman confirmed DTE is in “the very early stages of talking to area landowners about a possible project at some point five to 10 years from now.”

The 20 DTE “wind energy development” easement agreements recorded by the Lapeer County Register of Deeds were signed between June 26 and Sept. 26, and encompass a total of 60 parcels in Burlington, Burnside and North Branch townships.

The majority of the 40-year agreements (with an option for an additional 20 years) are for land generally between the villages of Clifford and North Branch, though some are east and southeast of the village of North Branch.

Burnside is the closest to having an up-to-date ordinance regarding wind energy developments, with officials in Burlington and North Branch townships claiming to be in the early stages.

The Burnside Township Planning Commission is set to hold a second public meeting on a wind turbine ordinance on Nov. 6 at 7 p.m. at the township hall. On Monday, Dempsey generally deferred public comments to that meeting.

Denney said the planning commission has spent several months working on an amended wind ordinance that was initially enacted in 2011 as part of an overall update of township ordinances, Denney said. A first public hearing was held Sept. 20.

The planning commission is tasked with crafting an ordinance that will eventually be voted on by the township board for a final approval and adoption.

“The proposed ordinance would make it more restrictive,” Denney said. “Exactly what’s in it depends on what the planning commission recommends and what the board adopts. So your time to have input is in front of the planning commission and this board when it comes back around the horn.”

Still, during Monday’s meeting, residents of Ellington and Almer townships (both in Tuscola County) spoke of the need to take as much time as possible with writing ordinance, and stressed that the citizens officials were elected to represent need to be considered first (as opposed to a company).

Norm Stephens, of Almer Township, told the board to take into account the nuances of any potential amendments to the wind ordinance.

He urged Burnside Township officials to consider writing into the amended ordinance that wind energy companies can’t measure sound levels using an “average,” which could allow for excessively loud wind turbines at times.

Mike Patullo, of Ellington Township, praised the board for being a bit ahead of the game.

Patullo said he tries to help people understand the myriad ways a wind turbine project can affect a community.

Juno Beach, Florida-based NextEra Energy Resources has proposed the $200 million Tuscola III Wind Farm in Fairgrove, Ellington, and Almer townships. However, the project is on hold after Ellington and Almer officials (many elected last November) enacted moratoriums on wind projects to revisit the wind ordinances of their respective townships.

NextEra Energy Resources filed suit seeking a court order that would compel the Almer and Ellington townships to allow the project to move forward.

“We’ve been in a huge fight that’s been going on for two years, you guys can avoid all of that,” he said. “I’ve been going around just to give people a little bit of a warning and saying ‘You don’t have to go through what we’ve gone through.’ It’s ripped our township to shreds. People that were sitting at the same Bible study together can’t talk to each other anymore.”

Several Burnside Township citizens voiced concerns, too, about issues ranging from height of wind turbines to impact on property value. Not all wanted to be identified.

Sarah Coulson, who said she recently moved to Burnside Township, asked township board members how figures were determined in the proposed ordinance relating to sound and setbacks (how far wind turbines are from other things like houses).

“Where did you guys come up with those numbers? How do we know that’s safe? How do we not know that sound is too high?” she said.

Dempsey referred Coulson to the planning commission and urged her to attend the Nov. 6 meeting at 7 p.m. at the Burnside Township Hall, 7045 Burnside Rd.

Ultimately, it was Lansky who stole the show Monday.

He pointed out that EMC has covered Ellington and Almer townships in the lawsuits filed by NextEra Energy Resources Inc.

“Ellington’s the biggest lawsuit I’ve ever seen that’s asking for nothing,” Lansky said. “Thirteen hundred and 32 pages to just do what they want to do.”

Lansky said he believes the playbook essentially calls for draining municipalities of finances until local officials eventually capitulate.

“Your pockets compared to the energy companies…there’s no comparison,” Lansky said. “You’re a drop in the bucket to them. They will financially wear you out, and wear your citizens out.”

Burnside Township is headed toward that type of situation, he said.

“It’s coming. It’s coming,” Lansky told officials. “It’ll either be somebody in the audience here tonight or the energy company.”

Patullo spoke after Lanksy’s statement, claiming “they’ll try to take over your township.”

“One way or another,” Lansky added.

Lansky put the blame on state lawmakers for increasing mandates for how much electricity originates with renewable energy sources like wind and solar.

Per state law, they must produce 15 percent of their power from renewable sources by 2021.

“The problem is the state made this mandate…with no direction as to how protect yourselves and your property owners,” Lansky said.

When it comes to protection, Lansky said insurance carriers constantly look at “where are we paying out claims?”

“And the two biggest areas for any insurance carrier dealing with municipalities are zoning and employment practices,” he said. “Employment practices you usually don’t have an issue here. But the zoning issue is an issue.”

Lanksy said based on his experience with such situations, the township would likely burn through any type of legal coverage provided through insurance “in about 10 hours.”

“What we’ve spent in Ellington, what we’ve spent in Almer…there have been a heck of a lot more than 10 hours in attorney fees,” he said.

Before he left the meeting, Lansky once again said he was sorry.

“I apologize,” Lansky said. “I wish you guys were in a better situation.”