STATE OF MICHIGAN IN THE 29TH JUDICIAL CIRCUIT FOR THE COUNTY OF CLINTON _____________________________ FOREST HILL ENERGY–FOWLER FARMS

LLC, a Michigan limited liability company, Plaintiff, v BENGAL TOWNSHIP, DALLAS TOWNSHIP, and ESSEX TOWNSHIP, Michigan townships located in Clinton County, Michigan, Defendants. Jon M. Bylsma (P48790) VARNUM LLP Attorneys for Plaintiff Bridgewater Place, P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000 There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the Complaint. NOW COMES Plaintiff, Forest Hill Energy–Fowler Farms LLC, by and through its attorneys, Varnum LLP, and for its Complaint against Defendants, Bengal Township, Dallas Township, and Essex Township, states as follows: NATURE OF ACTION 1. This is a case where three townships, acting on unfounded fears and minority COMPLAINT Case No. 13Honorable -CZ

opposition, enacted ordinances attempting to regulate a wind energy system in express violation of state law. Clinton County's Zoning Ordinance ("CCZO") expressly permits utility-scale wind energy systems as a special land use. Unlike a request for a use variance (which seeks the approval of a use that is otherwise prohibited), a special land use is a permitted use that is simply

subject to certain additional conditions. When the conditions of an ordinance permitting a special land use are met, a planning commission must grant the requested special use permit. See MCL 125.3504 ("A request for approval of a land use or activity shall be approved if the request is in compliance with the standards stated in the zoning ordinance"). In other words, when the requisite conditions of the CCZO are met, using land for a utility-scale wind energy system in Clinton County shall be approved. 2. Plaintiff, Forest Hill Energy–Fowler Farms LLC ("FHE"), has met those But three townships in Clinton

requirements, and FHE's application has been approved.

County—Bengal, Dallas, and Essex (the "Townships")—have each enacted a de facto zoning ordinance that denies FHE the ability to use land for a wind energy system in Clinton County, even when all the requirements under the CCZO have been met. It is literally impossible for a utility-grade wind energy system to comply with the Townships' Ordinances. Townships' Ordinances prohibit what the CCZO permits. 3. Not only does the Michigan Zoning Enabling Enact ("MZEA") expressly forbid Simply, the

the Townships' attempt to prohibit what the CCZO permits, (see MCL 125.3210 ("an ordinance adopted under this act shall be controlling in the case of any inconsistencies between the ordinance and an ordinance adopted under any other law")), but the Townships' Ordinances were not enacted in compliance with the substantive and procedural requirements of the MZEA. In any event, using completely arbitrary requirements, the Ordinances are unconstitutional. 4. Indeed, the Townships' Ordinances are also in stark contrast to the policies of the

state and county in which the Townships are located. The law in Michigan requires utilities to generate 10 percent of its retail supply from renewable energy sources by 2015. Furthermore, Clinton County has created a "'Green Initiative' in an effort to achieve significant long term

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financial and environmental savings by establishing reasonable goals and objectives related to reducing greenhouse emissions." CCZO No. 66-09B, Exhibit A.1 Clinton County adopted its wind energy ordinance "with the intention of obtaining an appropriate balance between the need for clean, renewable energy resources and the need to protect the public health, safety, and welfare of the community." Id. 5. Despite Clinton County's detailed Ordinance, and in complete disregard to the

policies of the state and county in which the Townships are located, the Townships wish to trump it all and make their own policy: "no wind farms allowed." The Townships' unlawful actions cannot stand. 6. Through this complaint, FHE seeks to do what it should lawfully be able to do—

develop a wind energy system pursuant to the CCZO. The Townships' Ordinances must be declared invalid. PARTIES, JURISDICTION, AND VENUE 7. Plaintiff, FHE, is a Michigan limited liability company formed in 2008 to be the

holding company for a potential wind energy farm to be built in Clinton County, Michigan. 8. Defendants, Bengal, Dallas, and Essex Townships, are Michigan townships

located in Clinton County, Michigan. 9. Pursuant the Court's jurisdiction under MCR 2.605, this lawsuit seeks to

invalidate ordinances that are identical or substantially identical in Bengal, Dallas, and Essex Townships that the Townships' respective boards promulgated and adopted in a collaborative effort to ensure that the Fowler Farms Wind Energy Project could not be built as permitted by Clinton County. This is true despite the fact that Clinton County is zoned by the County. This portion of the CCZO was not amended when Clinton County later amended its wind energy ordinance.
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10.

This suit is being filed to enjoin enforcement of the respective Township

Ordinances because the Ordinances are preempted by the CCZO, which Clinton County enacted pursuant to the MZEA, MCL 125.3101 et seq, and because the Townships' zoning ordinances are in fact zoning ordinances not enacted pursuant to the Zoning Enabling Act. Furthermore, the Townships' Ordinances violate FHE's right to due process under the Michigan Constitution because the Ordinances do not reasonably advance a legitimate interest. 11. Both jurisdiction and venue are proper in this Court. GENERAL ALLEGATIONS 12. FHE was formed to develop, own, and operate a wind energy system in Clinton

County, Michigan. 13. At all times, Clinton County has been a "county-zoned" governmental unit,

pursuant to which all areas in Clinton County are zoned pursuant to the CCZO, except for cities and villages in Clinton County. 14. Pursuant to Michigan statute, all townships in Clinton County are subject to the

CCZO unless any township opts out of the CCZO and passes and enforces its own zoning ordinance. 15. the MZEA. 16. 17. The Townships are therefore subject to the CCZO. The CCZO expressly permits utility-scale wind energy systems as a special land None of the Defendant Townships have enacted a zoning ordinance pursuant to

use. See CCZO Art 4, § 415, Exhibit B. Unlike a request for a use variance (which seeks the approval of a use that is otherwise prohibited), a special land use is a permitted use that is simply subject to certain additional conditions. When the conditions of an ordinance permitting a special land use are met, a planning commission must grant the requested special use permit. 4

See MCL 125.3504 ("A request for approval of a land use or activity shall be approved if the request is in compliance with the standards stated in the zoning ordinance"). In other words, when the requisite conditions of the CCZO are met, using land for a utility-scale wind energy system in Clinton County shall be approved. A. FHE's Efforts 18. In November 2008, FHE began leasing land from several landowners in Clinton

County as part of its initial planning to develop and operate a wind farm. 19. On or around that same time, FHE installed a meteorological tower (a "met"

tower) at a property known as Berlyn Acres.2 20. 21. The met tower collected data from November 2008 until June 2011. During this time, in April 2010, Clinton County passed its initial wind energy

ordinance. FHE intended to submit a permit in June 2011 that would have satisfied the initial wind energy ordinance. 22. On July 26, 2011, Clinton County imposed a "Moratorium on the Issuance of

Permits, Licenses or Approvals for Wind Energy Systems," which remained in effect until November 1, 2011. Clinton County imposed the moratorium so that the Clinton County

Planning Commission could "review certain requirements" of its then existing Wind Energy Ordinance, "particularly those provisions regulating setbacks of Wind Energy Systems from adjacent non-participating parcels and recommend any revisions necessary for the protection of the public health, safety and welfare."
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A met tower has equipment attached to it designed to assess wind resources. Met towers are typically used to assess wind resources prior to the development of wind energy systems. The CCZO currently requires a "thorough wind assessment study applied within a potential project area . . . completed for a period of time no less than one (1) year." CCZO Art 3, § 1341.A.5.

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23.

On October 25, 2011, Clinton County passed its revised Wind Energy Ordinance

as part of its Zoning Ordinance. See revised CCZO, Exhibit B. 24. Due to the revised ordinance, FHE had to reconfigure its project to meet the

CCZO's new requirements. 25. following: a. Height: No wind turbine "shall exceed a total height of four hundred and The Clinton County WEO has many exacting requirements, which include the

fifty (450) feet." Id. Art 13, § 1341.B.4 b. Sound: Sound emanating from the wind turbine must not exceed 45

dB(A), as measured from the exterior of a residential structure on a Non-Participating Parcel. Id. § B.3.a. Sound must not exceed 55 dB(A) as measured at the property line of a Non-Participating Parcel.3 Id. Art 13, § 1341.B.3.b (underline added). c. Setback: In general, a wind turbine must be "setback" at least 1,600 feet

or 4 times the height of the wind turbine from a residential structure. Id. Art 13, § 1341.B.5 (underline added). d. Shadow flicker: A wind turbine "shall not be allowed to cast a shadow

upon an adjacent or nearby Non-Participating Parcel's principal structure for a period of time in excess of thirty (30) hours per year," unless the property owner provides written permission. Id. Art 13, § 1341.B.8. 26. FHE began investing significant time and money towards complying with the

amended Clinton County Wind Energy Ordinance. The sound pressure levels can be exceeded in "short-term events such as severe wind storms," but may only do so "plus (5) dB(A) as measured at the exterior of a residential structure on a Non-Participating Parcel." CCZO Art 13, § 1341.B.3.a & b.
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27.

In March 2012, based on the new Clinton County Wind Energy Ordinance, FHE

applied for a permit to re-erect its met tower at a new location. 28. 29. In April 2012, FHE re-installed the met tower on the "Boettger" property. In June 2012, FHE submitted an application to the Clinton County Planning

Commission for a permit to construct a wind energy system. To prepare and submit that application, FHE invested over a million dollars securing the necessary leases, easements, and consents from landowners; preparing the necessary environmental, sound, and other studies; and meeting all other requirements. The 60-page application, with hundreds of pages of exhibits and numerous expert reports, meticulously laid out that each requirement of the Clinton County Wind Energy Ordinance had been met. See Application (without exhibits), Exhibit C. 30. system. 31. Accordingly, on January 10, 2013, the Planning Commission recommended FHE satisfied every requirement to use its land for a utility grade wind energy

approval of the permit, and on January 29, 2013, the Clinton County Zoning Board approved FHE's permit. B. The Townships' Attempts to Negate a Lawfully Issued Special Use Permit. 32. In the midst of FHE going through Clinton County's laborious process, a

movement began in Bengal, Dallas, and Essex Townships to throttle FHE's efforts and undermine the exacting requirements of the CCZO. 33. The Townships, acting essentially in collaboration, each enacted a wind energy

ordinance that effectively prevents FHE from developing a wind farm in accordance with the CCZO. See Bengal WEO, Exhibit D; Dallas WEO with Amendment, Exhibit E; Essex WEO, Exhibit F.

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34.

Tellingly, each Township wrote their Ordinance after FHE submitted its

application for a permit to Clinton County. In other words, the Townships knew very well the specifications of the project that FHE sought to complete in Clinton County. 35. For example, contrary to the CCZO, Bengal Township's Wind Energy Ordinance

includes the following provisions: a. Height: "The maximum total height of each [wind turbine] shall not

exceed 400 feet including the blade in vertical position" Bengal WEO at § III.B.2.i.4 b. Setback: No wind turbine "shall be located closer than . . . (2) 1600 feet

or four times the height of the structure, whichever is greater, from any parcel or lot line." Id. at § III.B.2.l (underline added). c. Noise: The wind turbine must remain quieter than 40 dB(A)s, measured

from the nearest property or lot line. Id. at § III.C.15 (underline added).5 d. Shadow flicker: "No [wind turbine] or other related structure shall cause

any strobe effect or shadow flicker on any property within the Township without the explicit written consent of the non-participating property owner." Id. at § III.C.9. 36. Considering the Townships' residents' vocal opposition to the CCZO, and the fact

that FHE's application to the Clinton County Planning Commission was on file when the Townships enacted their Ordinances, it should come as no surprise that it is impossible for FHE's approved permit to comply with the Townships' Ordinances:
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Dallas' and Essex's Ordinances are even more prohibitive; each set the maximum total height at 380 feet. See, e.g., Essex WEO Art 3, § (e)(1). As demonstrated by the underlined portions of the ordinances, the Townships' Ordinances are in contrast from the CCZO also because the Townships measure setback and noise from or at property or lot lines, while the CCZO measures setback and noise from or at residential structures.
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a.

No utility grade wind turbine approved by Clinton County is shorter than

400 feet with the blade at vertical position. b. No property in any of the Townships can satisfy the requirements for a

utility grade wind energy system and the Townships' general setback requirements. Simply, by graphically determining where a wind turbine could possibly be located, insufficient land remains to develop a utility grade wind energy system. c. No utility grade wind turbine approved by Clinton County will remain

quieter than 40 decibels without any exception as measured at a property line. d. 37. 38. All wind turbines create some shadow flicker.

The Townships effectively enacted ordinances outright prohibiting wind turbines. Furthermore, the requirements were arbitrarily selected. COUNT I: DECLARATORY JUDGMENT—FIELD PREEMPTION

39.

Plaintiff realleges and incorporates the allegations in all preceding paragraphs as

though fully set forth herein. 40. The Townships purported to enact Wind Energy Ordinances regulating the height,

setback, noise, and shadow flicker of wind turbines. 41. The CCZO already regulates the height, setback, noise, and shadow flicker of

wind turbines in Clinton County. 42. 43. Ordinances. 44. The MZEA provides that, "Except as otherwise provided under this act, an Clinton County enacted the CCZO pursuant to the MZEA, MCL 125.3101 et seq. The MZEA expressly provides that the CCZO preempts the Townships'

ordinance adopted under this act shall be controlling in the case of any inconsistencies between the ordinance and an ordinance adopted under any other law." See MCL 125.3210. 9

45.

The Townships' Ordinances are inconsistent with the CCZO because the

Townships' Ordinances prohibit what the CCZO permits—i.e., FHE operating a wind energy system in Clinton County. 46. Because the Townships' Ordinances, adopted under a law other than the MZEA,

are inconsistent with the CCZO (an ordinance adopted under the MZEA), the CCZO is controlling in the case of any inconsistencies. 47. The Court should declare the Ordinances invalid as preempted the CCZO.

WHEREFORE, Plaintiff respectfully requests that this Court enter a declaratory judgment in Plaintiff's favor and against Defendants which declares the Townships' Ordinances invalid and award to Plaintiff any and all relief this Court deems just and proper. COUNT II: DECLARATORY JUDGMENT—PREEMPTION BY DIRECT CONFLICT 48. Plaintiff realleges and incorporates the allegations in all preceding paragraphs as

though fully set forth herein. 49. FHE has been granted a permit under the CCZO to operate a wind energy farm in

Clinton County. 50. The Townships' Ordinances completely preclude FHE from being able to operate

a utility-grade commercial wind energy system in the Townships. 51. Therefore, the Townships' Ordinances prohibit what the CCZO permits—i.e.,

FHE operating a wind energy system in Clinton County. 52. The Townships' Ordinances are preempted by the CCZO because the Townships'

Ordinances directly contradict with the CCZO. 53. The Court should declare the Ordinances invalid as preempted by the CCZO.

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WHEREFORE, Plaintiff respectfully requests that this Court enter a declaratory judgment in Plaintiff's favor and against Defendants which declares the Townships' Ordinances invalid and award to Plaintiff any and all relief this Court deems just and proper. COUNT III: DECLARATORY JUDGMENT—THE TOWNSHIPS' ORDINANCES ARE ZONING ORDINANCES NOT ENACTED PURSUANT TO THE MZEA 54. Plaintiff realleges and incorporates the allegations in all preceding paragraphs as

though fully set forth herein. 55. The Townships' Ordinances were not enacted within the Townships' range of

conferred discretionary powers. 56. The substance of the Townships' Ordinances' provisions and terms regulate the

use of land according to districts, areas, or locations. 57. 58. The Townships' Ordinances are therefore zoning, not regulatory, ordinances. The Townships cannot avoid the substantive and procedural limitations of MZEA

by alleging the Townships' Ordinances were enacted pursuant to the Townships' regulatory powers. 59. 60. A zoning ordinance is invalid unless enacted pursuant to the MZEA. Because the Townships did not enact the Townships' Ordinances pursuant to the

MZEA, the ordinances are invalid. 61. The Court should declare invalid the Townships' Ordinances because the

Ordinances are zoning ordinances that were not enacted pursuant to the substantive and procedural requirements of the MZEA. WHEREFORE, Plaintiff respectfully requests that this Court enter a declaratory judgment in Plaintiff's favor and against Defendants which declares the Townships' Ordinances invalid and award to Plaintiff any and all relief this Court deems just and proper.

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COUNT IV: DEPRIVATION OF SUBSTANTIVE DUE PROCESS—MICHIGAN CONSTITUTION 62. Plaintiff realleges and incorporates the allegations in all preceding paragraphs as

though fully set forth herein. 63. The Michigan Constitution guarantees that no person will be deprived of life,

liberty, or property without due process of law. Const 1963, art. 1, § 17. 64. 65. 66. On their face, the Townships' Ordinances are arbitrary and capricious. The Townships' Ordinances totally exclude a lawfully permitted use of land. The Townships' Ordinances are not a reasonable means of advancing any

legitimate interest. For example, but without limiting why the Townships' Ordinances do not reasonably advance a legitimate interest, (a) the Ordinances are not reasonable because the Ordinances effectively completely preclude wind turbines, and (b) the Ordinances are not reasonable because the requirements are completely arbitrary. 67. For example, but without limitation: a. The Townships have no reason for selecting 400 feet as a height requirement other than prohibiting what Clinton County has approved. b. The Townships have no reason for selecting their setback requirements other than eliminating enough space to preclude operation of a utility grade wind energy system, such as the one applied for and approved by Clinton County. Nor do the Townships have any reason to measure setback from property lines rather than residential structures. c. The Townships have no reason to use 40 decibels as a noise requirement. Nor do the Townships have any reason to measure the noise from property lines rather than residential structures. d. The Townships have no reason to completely prevent all shadow flicker.

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WHEREFORE, Plaintiff respectfully requests that this Court provide injunctive relief to enjoin the Townships from enforcing the Townships' Ordinances. Furthermore, this Court

should award any and all money damages suffered by Plaintiff, including but not limited to the costs of filing this lawsuit, attorney's fees, the costs of securing approval under the CCZO, the development costs, incurred thus far for the project, and the loss of revenue resulting in damages in excess of $25,000. Respectfully submitted, VARNUM LLP Attorneys for Plaintiff

Date: April 8, 2013

By: ______________________________________ Jon M. Bylsma (P48790) Business Address and Telephone: Bridgewater Place, P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000

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