Wind Farm

Asked November 15, 2018, 11:19 AM EST

Our township (Casnovia) is proposing a wind farm and I would like to know: If we can amend the zoning ordinance? Can we petition the zoning board? and/or How do we learn how to maneuver through the bureaucracy involved with this? Regards, Hudson

Muskegon County Michigan

1 Response

Hi There,

A wind farm developer has submitted an application to the Township is reviewing the information and is tasked with making a decision. I am sensing that you may not be in agreement with the Township and are wanting to know what can be done to change the situation.

Can the zoning ordinance be amended?

The answer to this question has everything to do with timing. There are also legal factors involved that have to do with a term called “vested rights”. I am going to provide one opinion to you but please note that I am not an attorney. My opinion is likely a conservative one in terms of least legal risk to the Township. There is no doubt that other attorneys will have a different opinion.

In a conservative sense, if the developer has submitted an application (made payment, submitted a form and site plan, etc.) and the application is deemed complete, the application must be reviewed by the current zoning standards in place. Up until a developer submits a complete application, the ordinance can be amended. It might help to think of it as the rules of a game—people can potentially negotiate the rules up until the point at which they start to play the game. At that point when the game starts, the rules are set. One team cannot ask to change the rules in the middle of the game because they no longer agree with them for one reason or another. Most governments try to be consistent in how they treat zoning applicants and the zoning process because it fosters public trust.

If the township amended the ordinance now—it would more likely affect the next application if a different wind turbine proposal came to the Township—but not the one currently in front of the board.

Hypothetically, let’s say that the project is approved and THEN the Township changes the zoning ordinance to be more restrictive than the current ordinance. Even in this case, the ordinance and the rules in place at the time of application and approval of the current proposed wind farm would be the rules under which the permit would continue to operate. So if the ordinance changed after approval of the project—the rules that were in place at the time of approval would continue to apply. For example, if the current setbacks are 2 X the height of the turbine and the new rules increase setbacks to 4 X the height – the wind turbines that were installed at 2 X the height would not be in violation of the new 4 X the height rule. The turbines and all other aspects of the permit (sounds, shadows, etc.) are subject to the rules at the time of permit approval.

A different opinion is that a there are no “vested rights” in a project until a zoning and building permit are issued and substantial physical improvements are made—(roads improved, foundation holes are dug, concrete poured, etc.). Many lawyers will say that zoning amendments, changes to the zoning districts, etc. can be made at any point up until substantial physical improvements are made. This is true! But there may be a legal cost to the Township and all taxpayers to take this course. Parties have to carefully consider how fair it is to change the rules to a property owner or business and at what point in the game. The decision is a matter of legal principal but also of balancing financial and legal risk to all parties.

Can we petition the board?

Please see this article below should be helpful in answering this question about petitions--

https://www.canr.msu.edu/news/zoning_petitions_what_are_citizens_options

Rather than a petition (which can only be done after new zoning laws are proposed to be changed), there are opportunities to APPEAL a zoning decision to the Zoning Board of Appeals (ZBA). This is not a variance—it is called and APPEAL. An appeal stops a “vested right” from being established and essentially freezes or “stays” all proceedings.

I believe that in Casnovia Township, the Township Board will be serving to make the “administrative decision” on whether or not to approve the special land use permit for the proposed wind farm. In the majority of communities, the Planning Commission makes this decision. In Casnovia, the legislative body (the Township Board) will make this decision. If you are considering an appeal to the ZBA, contact the Township and ask the Zoning Administrator how an appeal of the Township board’s decision to the ZBA would work. These questions will be important:

1. What paperwork needs to be filled out – is there a form for an appeal?

2. What is the fee?

3. What is the timeframe in which the appeal must be filed? This will either be 21 days from the date the minutes are approved or 30 days from decision. THIS TIMELINE IS VERY IMPORTANT.

You may want to work with a skilled municipal attorney to craft the appeal and fill out the forms accurately. The decision of the ZBA could then be appealed to the Circuit Court. It is important to note that the Circuit Court will review the ZBA’s decision and not the Planning Commission or Township Board’s decision. An appeal to the Circuit Court— requires the assistance of an attorney, and one that is skilled in municipal law (and zoning). For more information on how the Circuit Court would review a decision—see below.

https://www.canr.msu.edu/news/circuit_court_review_of_zba_decisions

In general terms, the ZBA will review an appeal to make sure that the planning commission and legislative body followed the standards and procedures of the ordinance. The role of the ZBA is not to determine whether or not they agree with the decision or think the decision is right or wrong, good or bad, etc.

The Circuit Court will review the ZBA’s decision with these questions in mind:

Under MCL 125.3606(1), the circuit court reviews the ZBA decision to ensure it meets the following requirements:

(1) Complies with the constitution and laws of the state;

(2) Is based upon proper procedure;

(3) Is supported by competent, material, and substantial evidence on the record; and

(4) Represents the reasonable exercise of discretion granted by law to the zoning board of appeals.

Again—the Circuit Court will not rule on the decision based on agreement, right, wrong, good, bad etc.—only these standards above will be used.

How do we maneuver through the bureaucracy involved with this?

I hope that I have helped you with some of the resources above. Feel free to call me if you have questions on any of this, Mary Reilly (231) 889-4277 ext. 1. I am based in Manistee but I did go down to Casnovia Twp to provide information at a public hearing so I am somewhat familiar with the project. I would not be able to provide you with specific recommendations on an appeal but I could help you with objective matters like zoning terms, processes, technical aspects of wind turbines, and that sort of thing.

You can also call your Zoning Administrator and ask questions—they work for the residents of the Township and should be able to provide an outline of how various processes work. Your Township supervisor may also have resources to help with your questions.

Many planning and zoning topics can also be searched for at the www.msue.edu website.