Posted by: Patricia Salkin | September 23, 2018

Fed. Dist Court in MI Denies Motion to Enforce Judgement in Wind Farm SLUP Application Case and Holds Moratoria Claims Moot

This post was authored by Matthew Loeser, Esq.

Plaintiff Tuscola Wind III, LLC, filed a complaint against the Ellington Township and the Ellington Township Board, seeking the invalidation of the Township’s moratorium on the consideration of wind energy SLUP applications, which the Township initiated in November 2016. The Court granted the Town’s motion to dismiss and found the moratorium void because the moratorium had not been enacted pursuant to the procedures outlined in the Zoning Enabling Ordinance and because the moratorium violated the doctrine of legislative equivalency. Two weeks later, the Township filed a motion to certify an interlocutory appeal of that opinion and order.

On appeal, the court first addressed whether Tuscola was entitled to have its SLUP application processed under the requirements of the Ordinance that existed when the Application was originally submitted. Here, Tuscola did not argue that it has a vested property interest because SLUP approval had not occurred and construction of the wind farm had not commenced at the time of the 2018 amendments. Furthermore, Tuscola did not file suit until March 31, 2017, months after the amendment process had been initiated by both the passage of the moratorium and by the direction to the Planning Commission to initiate amendments. Therefore, Plaintiff Tuscola’s motion to enforce judgment was denied.

As to Tuscola’s other pending claims, the court held that the requested injunctive relief had already been granted. Because the second moratorium had been determined to be void, Tuscola’s assertions that the adoption of the second moratorium violated the Open Meetings Act or that the Township violated Tuscola’s due process rights when it adopted the second moratorium were found to be moot.

Tuscola Wind III, LLC v Ellington Township, 2018 WL 3609550 (ED MI 7/24/2018)

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