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Delta County Wind Monitor

Advocating for Residents in Wind Turbine Zones

GARDEN PENINSULA RESIDENTS BRING SUIT AGAINST DELTA COUNTY, HERITAGE SUSTAINABLE ENERGY

Garden Peninsula residents have filed a suit in the Michigan Court of Appeals challenging the Delta County Planning Commission's decision to permit an additional 35 turbines on the Garden Peninsula. 

IN SUMMARY

On October 24, 2017, Heritage filed its application for site plan review and 40 applications for 40 wind turbines and paid 40 $1,500 application fees. The original site plan included modifications to siting based on open house input, close collaboration with hosting landowners and micro-siting.

The Planning Commission held separate public hearings on December 4, 2017 and December 12, 2017 on each of the 40 applications for special use permit. The Delta County Zoning Ordinance allows interested parties at public hearing to present and rebut information either supporting or opposing the zoning action under consideration.

In early January, 2018, Heritage filed updated materials depicting the removal of 4 turbine sites and slight micro-siting adjustments to 8 other sites made in response to public comments received during the December 4 and 12, 2017 public hearings. In its January 3, 2018 letter, Heritage confirmed its discussions with the Planning Commission that the scale of Appendix I and Appendix V “are provided in accordance with the requirements of Section 701-1(C.2), which requires that a site plan ‘be drawn to a readable scale.’” Also enclosed, at the request of the Zoning Administrator, were additional visual simulations demonstrating “that the proposed wind turbine generators are of similar design, size and appearance throughout the project as required by the Delta County Zoning Ordinance Section 701- 5(G.1).” Also, as requested by the Zoning Administrator, was a map of the proposed project substation on 13th Road drawn to a 40’ = 1” scale. R-15.

Heritage’s applications were discussed and further information and public comment was received at a Planning Commission meeting on January 15, 2018.

On January 30, 2018, Heritage filed additional materials in response to concerns voiced by a Planning Commission member regarding bird safety at a January 2018 Planning Commission meeting.

The Planning Commission considered Heritage’s 36 applications at meetings on January 23, 2018 and February 5, 2018.  Prior to approving the conditional use permits, the Planning Commission prepared and completed a worksheet in which it listed and evaluated separately each and every requirement in Sections 503, 504, 701-1, 701-2, 701-3, 701-5 and 701-6 and concluded:

“The Planning Commission has reviewed all documents found in file 11-17-PC. It has also considered comments received at Public Hearing. All sections of the zoning have been addressed in the application and it was found that the application is sufficient to issue conditional use permits for the 36 turbine sites as described in the application. All conditions of Delta County Ordinance 76-2 shall be met prior to commencement of the use.”

The resolutions of the Planning Commission pursuant to which the conditional use permits were approved were specifically conditioned on “if all applicable permits are approved.” 

Pursuant to those resolutions, 36 permits for conditional use were issued by the Zoning Administrator and the Chair of the Delta County Planning Commission on April 3, 2018. Each of the permits for conditional use issued by the Planning Commission was for a distinct turbine and authorized a utility grid wind energy system land use on a separate and specific property description for that turbine. Each of the 36 conditional use permits contained the following conditions and restrictions: 

“All conditions found in Delta County Zoning Ordinance 76-2 that are applicable to Utility Grid Wind Energy System. Construction and operation shall be in accordance with all submitted application documents, file 11-17-PC. All applicable permits, State and Federal, shall be obtained as required.”

Residents of the Garden Peninsula are appealing this decision to the Michigan Court of Appeals.

WHY THE APPEAL?

The Delta County Planning Commision’s granting of these applications was in error, because the applications submitted by Heritage failed to comply with the requirements of the Delta County Zoning Ordinance, specifically:

  • Section 503: This section requires that every site plan shall be “drawn to a scale not smaller than 40 feet to the inch.” The site plan maps provided with the Applications do not comply with requirement; they are at a scale of 1500 feet to an inch.

  • Section 701-5(G)1. This section requires that “[a] project shall be constructed using wind energy systems of similar design, size, operation and appearance through the project.” The wind turbines in Heritage’s proposed Project have differing heights and blade lengths.

  • Section 503-1(E). This section requires that the site plan set forth “[t]he location, height and dimensions of all existing and proposed structures.” The Applications do not set forth the height and dimensions of the proposed substations or the sound barriers for the substations for the Project.

  • Section 503-1(F). This section requires that the site plan set forth “[t]he location, grades and dimensions of all temporary and permanent on-site and access roads . . . .” The Applications do not set forth the grades or dimensions of the proposed access roads. Furthermore, the Applications acknowledge that the final locations of access roads to the turbines have not yet been determined.

  • Section 503-1(G). This section requires that the site plan identify “[a]ll new infrastructure above ground.” The Applications do not identify all wires, poles, and transmission equipment for the Project. They do not identify turbine collection lines.

  • Section 701-5(E)2.a. This section provides that “[t]he site plan and other documents and drawings shall show mitigation measures to minimize potential impacts on the natural environment including, but not limited to wetlands and other fragile ecosystems, [and] historical and cultural sites . . . .” The Preliminary Environmental Desk Review attached to the Applications (Appendix VII) fails to set forth the mitigation efforts that Heritage is committed to take to minimize potential Project impacts on wetlands.

  • Section 701-5(E)2.b.4. This section provides that the Applications must “[c]omply with applicable parts of the Michigan Natural Resources Environmental Protection Act . . . including but not limited to: . . . 4. Part 303 Wetlands.” The Applications do not indicate that Heritage has obtained a pre-application permit from the MDEQ for the effects the Project will have on wetlands within the Project area, in compliance with the NREPA, despite the fact that Heritage’s own environmental expert acknowledges that Heritage is likely to need such a permit before the project can proceed.

  • Section 701-6(B). This section provides that the Applications must include a “visual impact simulation showing the completed site as proposed on the submitted site plan. The visual impact simulation shall be from four viewable angles.” (emphasis added). The Applications fail to show visual simulations for the turbines at each of the proposed turbine sites.

  • Section 701-5(G)1. This section provides that the Applications must include “a shadow flicker analysis at occupied structures” and that “[t]he site plan shall identify problem areas where shadow flicker may affect the occupants and show measures that will be taken to eliminate or mitigate the problems.” (Emphasis added). Heritage’s shadow flicker analysis, Appendix X, reveals that more than 25 “non-participating” residences, under a “worst-case” scenario, may experience more than 30 hours of shadow flicker per year, in direct violation of the 30-hour limit set forth in Zoning Ordinance section 701-5(G)(3). The Applications contain absolutely no plan to eliminate or mitigate this illegal level of shadow flicker.

  • Section 701-5(B). This section requires that turbine sound pressure levels not exceed 45 dB(A) measured at an existing dwelling.1 This Section also states that “[t]he sound pressure shall not exceed either 55 dB(A) measured at the property lines or the lease unit boundary, whichever is farther from the source of the noise ...for more than 3 minutes in any hour of the day.” The sound modelling included in the Applications (Appendix VI) did not comply with these requirements. The parameters used for the noise modelling at the homes assumed low temperatures and low humidity. Moreover, the sound modelling did not include any modelling of sound at the property lines, as required. (Appendix VI, p 4). Furthermore, there is a 3 dB margin of error for noise propagation calculations under the ISO 9613-2 methodology used by Heritage. Thus there may be at least 23 residences at which the turbine noise level will exceed 45 dB(A), in violation of this noise limit.

  • Section 701-6(A). Section 701-6 (A) states "...The noise modeling and analysis shall conform to IEC 61400 and ISO 9613...in the most current version [emphasis added] of ANSI S12.18." The most current version of ISO 9613 was updated in 2015. The Applications used/cited to the ISO 9613 from 1996, which is over 20 years old. (Appendix VI-Sound Modelling, page 16). Moreover, ISO 9613 assumes that the noise source for noise propagation modeling is 30 meters (98.4 feet). But Heritage’s wind turbines are at least 499 feet tall. At that much greater height, the noise from Heritage’s turbines will travel farther, and be louder, than predicted by ISO 9613 under the assumptions of that model.

  • Section 701-5 (G)(2). This section requires that the Applications include an Avian and Wildlife Impact Analysis that includes a site plan and other documents and drawings showing appropriate mitigation measures to minimize potential impacts of the wind turbine project on avian and wildlife. Heritage’s Avian and Wildlife Impact Analysis fails to address the U.S. Fish and Wildlife’s warning to Heritage that the construction of wind turbines where Heritage proposes to site them pursuant to its Applications “represents high exposure and potential for [migratory bird] collision mortalities.” 

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