Government, Law, and Sustainability

GR lawyer wins in court for wind farm developer

September 6, 2013
| By Pete Daly |
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Forest Hill Energy, a Chicago wind energy developer, recently won a court order striking down parts of three Clinton County township ordinances meant to be more restrictive than the existing county zoning ordinance.

Jon Bylsma, a partner at Varnum Law in Grand Rapids, said the Clinton County zoning ordinance already had extensive regulations and requirements for construction and operation of commercial wind farms, while the townships do not have their own zoning ordinances.

Forest Hill Energy is proposing to build a wind farm with 39 commercial-size turbines in Essex, Bengal and Dallas townships in northwestern Clinton County, roughly 20 miles north of Lansing.

Bylsma said “there’s got to be a vocal minority” in those townships opposing the wind farm because of “potential bad effects” they’d read about on the Internet — “which really are not founded on science, but it’s out there.”

He said the Clinton County zoning ordinance regulates commercial wind farms regarding turbine height and set-back from buildings nearby, taking into account issues such as shadow flicker and noise. The three townships, however, passed power policy ordinances, not as zoning regulations but rather as what he describes as “police power” ordinances meant to be enforced by each township to protect the public health and welfare.

The litigation Forest Hill Energy filed in Clinton County Circuit Court argued the county already had a zoning ordinance. “You can’t pass a zoning ordinance disguised as a police power ordinance. So we asked the judge to strike those things and he did,” said Bylsma.

“It’s not easy to get a judge to strike down an ordinance that the elected representatives passed, but in this instance, I think it was just so clear that what they passed was, as the Dutch call it, a second bite at the zoning apple,” said Bylsma.

Forest Hill Energy had gone through the application process, had met the requirements and was awarded a special use permit by Clinton County officials. The company had intended to start construction in early 2012.

The township ordinances were invalidated by the court to the extent they were more restrictive than the county zoning ordinance.

“Wind energy has become controversial to some,” said Bylsma, but in his opinion it is better to look at the bigger picture, which should include regulations to make sure it is safe and not intrusive on people who live nearby. “But it’s going to be somewhere,” he said, noting Michigan law requires that a minimum of 10 percent of electricity sold by utility companies must be renewable energy by 2015.

“There are still some unresolved issues” in Clinton County, said Bylsma, and the appeals period is still open, but he said that, given the judge’s decision and guidance he provided, Forest Hill Energy is hopeful the issues can be resolved without further litigation.

“It’s a purely rural area that could really use the economic development,” said Bylsma.

Bylsma said he represents commercial wind energy developers all over the state and “it’s always different. There’s always a unique local battle in some way.”

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