State Appellate Panel Revives Residents’ Fight Against Solar Farm

May 1, 2023 by Dan McCue
State Appellate Panel Revives Residents’ Fight Against Solar Farm
(Photo by Fabersam via Pixabay)

LANSING, Mich. — A three-judge appellate panel in Michigan last week revived a lawsuit challenging a change in a local zoning ordinance that led to a township approving the permit for an industrial solar farm.

In a unanimous ruling, the panel said a lower court “relied upon an alternative reality” when it decided that a group of residents from the largely rural farming community lacked standing to challenge the procedures that enabled the solar farm’s approval.

As recounted in court documents, in 2017, Invenergy LLC, a multinational power generation company, approached officials in Macon Township, Michigan, about amending local zoning ordinances to include industrial-size solar farms as a special land use in districts zoned industrial or agricultural.

Months later, in April 2018, the Macon Township Planning Commission approved the change. Prior to this time, solar farms were not permissible as a special use in agricultural and industrial districts in the township.

In October 2020, Invenergy, acting through its subsidiary, Mustang Mile Solar Energy LLC, formally applied for a special land use permit for its planned solar farm, which the township board approved the following May.

The plaintiffs, all residents with properties directly adjacent to or near the planned solar facility, sued, claiming the special land use permit should be considered void due to the fact the underlying change to the local land use ordinance was itself invalid.

Among their claims is that the township sidestepped its own long-standing procedures for amending local ordinances, failed to provide potentially affected property owners with notice the change was going to be made, and that, as residents, they’d suffered harm because they’d made decisions about the use and management of their land in reliance of the prohibition against large-scale solar farms in their community.

In addition, they said the planned solar facility would deprive them of the “quiet enjoyment” of their homes and properties in a variety of ways.

First, they said, they would be negatively impacted on a regular basis by glare from the panels and by blinking lights that would be erected around the facility. This same glare, they said, also posed a threat to pilots using the local Tecumseh-Mills Airport.

Further, they said, the locality of the solar panels would destroy the “nature and character” of their farming community.

In addition, they complained about the six-foot chain link fence topped with barbed wire that would surround the facility, bemoaning both its appearance and effects on wildlife in the area.

The context for the lawsuit is unique in that Michigan is one of the few remaining Midwest states that require local, rather than state, approval for utility-scale renewable energy projects. 

As the number of proposed renewable energy projects around the state has grown, this has caused increasing friction between local governments and the residents they serve.

The Macon Township lawsuit is just one of several similar lawsuits that are currently being litigated throughout the state.

In this case, a Lenawee County Circuit Court judge recognized the alleged harms, but ultimately reasoned that because the solar ordinance itself did not cause any harm to the plaintiffs, they lacked standing to challenge it.

The appellate panel said the judge got it wrong.

“In order to determine that there was no harm … the trial court relied upon an alternative reality in which the ordinance was amended, but no [special land use permit] was granted. In this case, the unrefuted facts show that the ordinance was amended and a [special land use permit] was granted under that amended ordinance. 

“The fact that the ordinance amendment alone did not cause the harm does not negate the fact that actual harm has been alleged in this case. The harm predicted by the passing of the amendment is, therefore, not hypothetical,” the panel said.

The appellate panel went on to note that Macon Township’s ordinances state that persons aggrieved by or adversely affected by the alleged violation of the zoning ordinance have a legal cause of action, and that the alleged failure to provide adequate notice is such a violation.

“Although defendants may contend that no violation … occurred, such an argument goes to the merits of plaintiffs’ claim, not to whether or not they have standing to pursue such claim,” the panel said.

“Plaintiffs also allege that if the proper procedure had been followed, they would have received notice of the 2018 amendment to the solar ordinance,” the judges continued. “They contend that, if they had such notice, they could have attempted to file a petition to place the amended portion of the zoning ordinance on the ballot for the approval by the electors residing in the zoning jurisdiction.

“On this record, we conclude that because the 2018 amendment to the solar ordinance was allegedly passed in violation of the zoning ordinance (which incorporates the requirements of state law) and because plaintiffs were adversely affected by that violation, they have a legal cause of action to challenge the violation of the ordinance,” the panel said.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue

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