Posted by: Patricia Salkin | June 12, 2018

Fed. Dist. Court of MI Denies Procedural Due Process , Equal Protection and Open Meetings Act Claims Arising from Denial of Special Land Use Permit to Wind Energy Center

This post was authored by Matthew Loeser, Esq.

Tuscola Wind III, LLC, a Delaware limited liability company indirectly wholly owned by NextEra Energy Resources, LLC., desired to build the “Tuscola III Wind Energy Center” in Tuscola County, Michigan. The project would include 55 wind turbines in Fairgrove, Almer, and Ellington Townships, and would produce enough energy to supply 50,000 homes with wind energy. Tuscola Wind’s claims arose from Almer Township’s denial of a Special Land Use Permit (“SLUP”) that would have permitted Tuscola Wind to construct the Tuscola III Wind Energy Center. After the Planning Commission recommended denial of the SLUP application, Tuscola requested an interpretation of the Zoning Ordinance’s 45 dBA limit by the Zoning Board of Appeals (“ZBA”). Tuscola asked the ZBA to provide expedited review. When the Almer Township Board denied the SLUP application, the ZBA appeal had not yet been resolved. Tuscola subsequently withdrew its request for an interpretation of the Zoning Ordinance’s provision regarding noise emissions.

In this case, Defendants first contended that Tuscola had no property interest in its SLUP application. Tuscola argued that it held leases to develop and use the parcels covered by its SLUP application, and therefore had an interest in the use and possession of real estate. The court found that these leases alone failed to establish a protected property interest. Here, the record revealed that the plain language of those contracts set forth that the property rights vest only when Tuscola exercises the option, which would only occur if Tuscola obtained the permit. Since Tuscola failed to identify a protected property interest which the Township had infringed, its procedural due process claim was dismissed.

Tuscola next claimed that the Township’s zoning ordinance violated the Equal Protection Clause of the United States and Michigan Constitutions, on its face and as it was applied to them. The court noted at the outset that the planning commission members have a considerable amount of discretion in considering SLUP applications for wind energy conversion systems. The court found that this significant discretion entrusted to the Township and the extremely limited number of specifically identified comparable data points underscored the unsuitability of the class-of-one theory in this situation. Nevertheless, the court analyzed the equal protection claim and found that, in identifying a SLAP application to construct a cell phone tower, Tuscola identified only limited evidence of similarly situated SLUP applicants. Accordingly, Tuscola’s Equal Protection claim was denied.

Lastly, the court reviewed Tuscola’s allegation that several Township Board members violated the Michigan Open Meetings Act (“OMA”) through private communications and deliberations both before and after being sworn into office. Specifically, Tuscola claimed that “the Board members continued engaging in concealed deliberations after they were sworn into office” because the Board implemented an email policy whereby “the members would send an email to themselves and blind carbon copy the remaining Board members.” The court found that while merely emailing all members did not violate the OMA unless there was some level of discourse on an issue of public policy, the emails strongly indicated that the procedure was adopted in order to facilitate communication between the Board. Given the Township’s threadbare briefing on this issue and the outstanding factual questions, the court denied the Township’s summary judgment motion on this issue.

Tuscola Wind III, LLC v Almer Charter Township, 2018 WL 2937409 (ED MI 6/12/2018)


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