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Delta County Wind Monitor

Advocating for Residents in Wind Turbine Zones

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Contact Your Officials

COUNTY COMMISSIONERS

310 Ludington Street, Escanaba, MI 49829 Phone: 789-5100

Commissioner District 1 / John Malnar: malnar.john62(at)gmail.com

Commissioner District 2 / Patrick Johnson, Gladstone, pjohnson(at)deltacountymi.org

Commissioner District 3 / Mary K. Harrington, Vice Chairman: mharrington(at)deltacountymi.org

Commissioner District 4 / David J. Moyle: dmoyle(at)chartermi.net / Phone: 235-8427 

Commissioner District 5 / David J. Rivard: koi(at)charter.net

PLANNING COMMISSION

Julian Vandecaveye 11314 Hwy. M-35, Perkins, MI 49872 Phone: 359-4477

Benny Herioux 2324 17th Road, Bark River, MI 49807 Phone: 786-5671

Patrick Connor, City of Escanaba Appointment 3405 8th Avenue South, Escanaba, MI 49829 Phone:399-2787

John Denholm 2676 II Road, Garden, MI 49835 Phone: 644-7198

Renee Barron 2948 St. Nicholas 31st Rd, Rock, MI 49880 Phone: 359-4602

Randy Scott 7722 Summit 19.55 Dr., Gladstone, MI 49837 Phone: 428-2414

David Moyle, County Board Representative 1501 1st Avenue South, Escanaba, MI 49829 Phone: 235-8427  email: dmoyle(at)chartermi.net

Dan Menacher, Building & Zoning Administrator 310 Ludington Street, Escanaba, MI 49829 Phone: 789-5189

Contact Heritage Wind Energy

Marty Lagina, Founder and Chief Executive: 

info@heritagewindenergy.com

Rick Wilson, VP Operations:

Rick@heritagewindenergy.com

Heritage Sustainable Energy sues Garden Township Over Nuisance Noise Ordinance

A response to the original article by Alyssa Baker posted in UpperMichiganSource.com on 5/14/15.

GARDEN TOWNSHIP -- Heritage Sustainable Energy is suing Garden Township for creating two noise ordinances that allegedly are unconstitutional, invalid, and were created with conflict of interest.

The complaint was filed May 12th and deals specifically with Garden Township Ordinances 2014-1 and 2015-2. 

Heritage Energy is also claiming that Ordinances 2014-1 and 2015-2 are extremely restrictive when compared to the Delta County Zoning Ordinance.  

According to Ordinance 2014-1 “From the hours 10pm-6am the sound pressure levels must be 35 dB.” That is a 10-20 dB difference when compared to the 45/55 dB limit provided by Delta County Zoning Ordinance.

Note from DeltaCountyWind: The current turbines in Delta County are not regulated by existing zoning. Current zoning was created after the turbines were conditionally permitted by Delta County, without noise limitations. Therefore, Heritage does not have to limit turbine noise to 45/55 dB and according to neighboring residents, the noise level is frequently 55/65 dB and higher between the hours of 10pm and 6am.

According to Heritage's complaint, the statements of facts are:

-Heritage Garden Wind Farm LLC and Heritage Sustainable Energy LLC owns and operates 14 wind turbines, 24 hours a day, in the Garden Township, Delta County.

-Delta County has a Zoning Ordinance that already includes sound pressure level limits for the county. “The sound pressure level shall not exceed 55 dB, measured at the property lines or lease unit boundary, whichever is farther. OR a limit of 45 dB measured at the existing dwelling, whichever measurement is less.” Truth: These turbines are not regulated by this zoning as they were permitted by Delta County when no zoning ordinance existed. 

-Garden Township adopted Ordinance 2014-1 titled Nuisance Noise Abatement Ordinance on December 9th, 2014.

-Garden Township adopted Ordinance 2015-2 titled Nuisance Noise Abatement Ordinance which amended Ordinance 2014-1, and will become effective June 1, 2015.

-Several Garden Township Trustees that voted on the ordinances are directly involved in a separate lawsuit against Heritage Energy. Truth: This noise ordinance pertains to any nuisance noise in Garden Township. Nuisance in the ordinance is defined as repetitive, measurable noise. 

-Township Supervisor Ray Young is the father of a plaintiff in a separate lawsuit against Heritage Energy. Truth: A conflict of interest would only occur if Mr. Young was financially benefitting from the passing of the nuisance noise ordinance.

-Heritage Energy created a letter on March 30th asking the board to acknowledge that Ordinances 2014-1 and 2015-2 are void and of no legal effect because of conflicts of interest in Township board members.

-Garden Township has not responded to the March 30th letter. Truth: The letter had no merit. Why should they respond?

The complaint has eight counts against the township.

Count 1: Preemption

Heritage Energy is claiming ordinances 2014-1 and 2015-2 impose sound pressure level limits that are more restrictive than the sound pressure level limits provided by the Delta County Zoning Ordinance.

From the hours 10pm-6am the levels must be 35 dB (compared to the 45/55 dB limit provided by Delta County Zoning Ordinance)

Truth: Heritage Energy has no restrictions on noise emissions and has abused their sound privileges in the neighborhood. A recent sound study done in conjunction with current lawsuits against Heritage and completed by a nationally recognized acoustician show sound emissions in excess of 65 dB between the hours of 10pm and 6am.

-Result: Heritage Energy is asking that a judgement is made stating that ordinances 2014-1 and 2015-2 are overruled by the Delta County Zoning Ordinance.

Count 2: Violation of Procedural Due Process

Heritage Energy is claiming that the two Garden Township ordinances are unconstitutional, because they deprive Heritage Energy of their procedural due process rights under the 5th and 14th amendments. Truth: It is the responsibility of the local government to protect the health, safety and welfare of residents. Many residents report sleep deprivation and loss of enjoyment of property due to extraordinary turbine noise. Townships are given Police Power for exactly this type of situation.

-Result: Heritage Energy is asking that a declaratory judgement is made that Ordinance 2014-1 is invalid.

Count 3: Violation of Substantive Due Process

Heritage Energy is claiming that sound pressure levels that do not exceed the level limits provided in the Delta County Zoning Ordinance are not a public nuisance. Truth: A township is able to set its own police power nuisance noise ordinance to protect the health, safety and welfare of residents. 

-Result: Heritage Energy is asking that a judgement is made that both ordinances 2014-1 and 2015-2 are invalid.

Count 4: Conflict of Interest

Several Garden Township Trustees that voted on the ordinances are directly involved in a separate lawsuit against Heritage Energy.

Township Supervisor Ray Young is the father of a plaintiff in a separate lawsuit against Heritage Energy. Truth: A conflict of interest would only occur if Mr. Young was financially benefitting from the passing of the nuisance noise ordinance.

-Result: Heritage Energy is asking that the ordinances are invalid and of no legal effect, and that Garden Township should require Supervisor Young and Trustees Richard and Daasch remove themselves from all further discussion, vote or involvement in ordinances or actions involving operation of the Heritage Garden Wind Farm.

Count 5: Open Meeting Act

Heritage Energy states that allegedly both ordinances were voted on in meetings behind locked doors, were not open to the public, and failed to give the public notice of the meetings. Truth: Votes took place at regularly posted meetings, which were open to the public. 

Count 6: Non-Conforming Use

The 14 wind turbines were constructed and have been in operation since September 14, 2012. Truth: No zoning whatsoever applies to these fourteen turbines. Heritage has continually ignored residents' complaints of noise. Delta County Commissioners claim that they are unable to do anything about the noise because they failed to create any guidelines whatsoever regarding the operation of the turbines, allowing Heritage to operate them as they choose, without regard to the health, safety or welfare of local residents. The police power noise ordinance passed by the township is a measure of last resort in order to protect neighboring residents from excessive noise. 

-Result: Heritage Energy is asking that a declaratory judgement is made that the 14 existing wind turbines can be used in the same manner as they have been operated prior to the ordinances.

Count 7: Equitable Estoppel

 

The 14 wind turbines were constructed and have been in operation since September 14, 2012. Constructing the 14 turbines cost in excess of $50 million.

Before the project began the Garden Township supervisor and several zoning officials witnessed an operational wind farm. At that time the Garden Township did not express any dissatisfaction with sound levels. Truth: The previous administration in Garden Township gained financially when it allowed Heritage to build in the township, creating a true conflict of interest. The current administration led by Ray Young was elected on its promise to bring the current turbines into compliance with township and county zoning standards. In a 2014 survey, 93% of Garden Township residents were in favor of greater setbacks for turbines due to noise.  

-Result: Heritage Energy is asking that a declaratory judgment is made that Garden Township is equitable estopped from enforcing the two ordinances against Heritage with respect to its continued operation of the 14 existing wind turbines.

Count 8: Injunctive Relief

Heritage Energy is asking that permanent relief is given to the company from Garden Township ever enforcing the two ordinances. Truth: Heritage continues to abuse its privileges in Garden Township. Residents have complained of noise since the turbines first started turning. Heritage has shown over and over its lack of concern for preserving the culture, health, safety and welfare of township and village residents, claiming that the company and leaseholders would lose money with any abatement in noise.

 

Does this sound familiar?

Heritage Sues Schoolcraft County

Suing for loss of profits. Schoolcraft County passed a zoning ordinance which Heritage found too restrictive to allow them to operate profitably within the county. 

Heritage Wind Energy Sued by Garden Township Residents and Citizens Group

July 2014: Concerned Citizens of Garden, LLC recently announced their intention to sue Heritage Wind Energy for alleged violation of the Endangered Species Act among other allegations.

The organization hired Susan Topp, an environmental attorney from Gaylord, Michigan, to represent them against Heritage Sustainable Energy.  

Heritage Settles Dispute with McBain, MI Family Out of Court

May 2014: The Wiltzer family of McBain, MI sued Heritage Sustainable Energy to turn off the turbines within a one-mile radius. They (or anyone else) couldn't live in their home because of the extreme infrasound (low frequency sound) generated by the turbines. Acoustic experts, including Rick James, who came to measure and spent the night there, said it was one of the worst ever encountered. Marty Lagina, who owns Heritage Sustainable Energy, offered the Wiltzers a buy-out, but they wanted their home back, so they rejected the first buy-out.

SOS was told that the Wiltzers received a "good" settlement. That generally means Heritage paid fair market value for their home, paid their legal bills, gave them some moving costs, and perhaps gave them a cash settlement as well. Heritage does not have to shut down its turbines or admit wrong-doing.

The Wiltzers hired Susan Topp, the environmental attorney from Gaylord, Michigan, to represent them against Heritage Sustainable Energy. 

Click to read full article.

Bird group proposes ‘legally defensible’ overhaul of federal eagle program

Source: By Scott Streater, E&E reporter • Posted: Friday, August 8, 2014

A leading bird conservancy group has submitted a detailed plan to the Fish and Wildlife Service that includes revisions to its hotly debated eagle “take” rule that allows wind and other energy projects to injure, kill or disturb bald eagles for up to 30 years.

The American Bird Conservancy’s 18-point plan, outlined in a formal comment letter sent yesterday to Fish and Wildlife, also calls for adopting mandatory conditions for siting wind projects instead of the current voluntary guidelines that the group says in the letter are “hindering FWS’ ability to do its important job of protecting our nation’s public trust resources, including its ecologically-important native birds and bats.”

“If there is one thing recent months have shown us, it is that some in the wind industry have shown little to no respect for or adherence to the voluntary regulatory guidelines now in place,” Michael Hutchins, national coordinator of ABC’s Bird Smart Wind Energy Campaign, said today in a statement.

Hutchins wrote the 11-page comment letter sent to Fish and Wildlife.

“Wind energy developments are going up in places they never should have and with little to no consideration for our native birds and bats,” he added. “As a result, we are calling for an end to the voluntary approach and for the establishment of mandatory guidelines, among other things, to better regulate the industry.”

ABC’s recommended plan also calls on the service to require an independent third party to conduct environmental assessments of proposed wind projects, and for the service to devise and implement an independent “monitoring system” to document “post-construction” bird and bat deaths. This, the group says in the letter, should be required for all projects that receive incidental take permits that allow the operators to harm or kill protected species, such as bald eagles.

The comment letter is part of the public scoping process as Fish and Wildlife prepares to conduct either a lengthy environmental impact statement or an environmental assessment that takes a broad look at the service’s overall “eagle management objectives,” including the impacts of the new eagle take rule implemented earlier this year.

As part of the review, FWS announced in June that it will “[f]urther analyze the effects of longer” eagle take permits and evaluate whether the take rule needs to be tweaked (Greenwire, June 20).

The Fish and Wildlife announcement that it would review its eagle management policies came one day after ABC filed a federal lawsuit against the Interior Department and the service in the U.S. District Court for the Northern District of California in San Francisco. The suit challenges the new rule allowing Fish and Wildlife to grant programmatic incidental eagle take permits to wind farms, transmission projects and other long-term energy operations for a much longer period than the previous five-year term (Greenwire, June 19).

ABC asserts in the lawsuit that the revised eagle take rule announced in December and implemented this year is riddled with violations of federal law, including the National Environmental Policy Act, the Endangered Species Act, and the Bald and Golden Eagle Protection Act.

The group does not back away from those assertions in its comment letter, recommending that Fish and Wildlife “[h]old the permit duration to five years with the possibility of renewal.”

ABC’s plan outlined in the letter also recommends that the service clearly “articulate for each eagle take permit issued in a legally sound and scientifically defensible manner how it complies” with the Bald and Golden Eagle Protection Act “and ensures preservation of eagles, especially in the face of acknowledged uncertainty.”

Industry needs regulatory certainty

Laury Parramore, an FWS spokeswoman in Arlington, Va., said the service cannot comment on individual letters submitted as part of the public scoping process.

Fish and Wildlife also has declined in the past to discuss the ABC lawsuit, citing policies against publicly commenting on ongoing litigation.

The ABC plan is one of at least 72 formal comments the service has received since announcing in June that it was going to review its eagle management policies, Parramore said.

Two top officials with the American Wind Energy Association were not available to comment by publication time.

But AWEA has defended the expanded eagle take rule, arguing that the industry takes enormous steps to protect birds, more so than other industries, and that when it comes to eagles, it has been unfairly singled out. The trade group has pointed to studies that show eagle populations over the last 40 years have stabilized and that the wind power industry conducts more pre- and post-construction studies to guard against impacts to eagles and other sensitive avian species than any other energy sector.

The wind industry says such incidental take permits give it more regulatory certainty while allowing it to incorporate measures that help protect eagles. And the industry has argued that it makes no sense not to have an eagle permitting system that covers the typical 30-year life of an operating commercial-scale wind farm.

George Fenwick, ABC’s president, said in a statement that Fish and Wildlife was bowing to industry pressure when it agreed to increase sixfold the duration of the take permits to 30 years.

“We understand that the new 30-year rule was requested by the wind industry to give more confidence to investors,” Fenwick said in the statement.

There is no evidence that the new rule will accomplish that goal, he said.

“There is clearly a need for a new scientifically-credible, legally defensible, and more transparent approach to permitting for wind energy facilities that meets the stated goals” of the Bald and Golden Eagle Protection Act, Endangered Species Act and Migratory Bird Treaty Act, according to ABC’s comment letter.

One of ABC’s top recommendations is for the service to “provide all data on bird mortality at specific wind energy sites for meaningful stakeholder (public) review and analysis on a regular basis, including analyses of the effectiveness of post-construction mitigation in reducing eagle (and other federally-protected birds and bats) mortality,” the group states in the letter.

ABC also recommends that the service develop “effective plans for compensation for the unavoidable loss” of federally protected birds and bats.

“These are public trust resources being taken and the public has a right to know,” Hutchins said in his statement.

 

Where will the next phase be built?

Yellow highlighted areas show leaseholder land.

Video of June 2014 Wind Energy Presentation in Delta County