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Delta County Wind Monitor

Advocating for Residents in Wind Turbine Zones

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

 

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, noise frequently surpasses acceptable levels between the hours of 10pm and 6am. If Heritage is within the 45/55, neighbors agree that the sound limits are TOO LOUD for a rural setting.

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 AND 45dB is too loud for a rural setting.

-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 between the hours of 10pm and 6am that interfere with sleep patterns.

-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?

Garden Township Passes Police Power Noise Ordinance

December 9, 2014

Garden Township, Michigan board members voted with four in favor, one abstaining, to pass a police power noise ordinance limiting industrial noise emissions in the township to 35db between the hours of 10pm and 6am.

What does a wind turbine sound like?

How loud can the wind turbines get?

Because there was no specific zoning in place at the time of the construction of the current 14 turbines in the Garden Wind Farm, Heritage does not have to adhere to any county noise zoning requirements. Residents of the Garden Wind Farm report that wind turbine noise regularly exceeds reasonable, acceptable decibel levels within the project, preventing them from enjoying their homes and property and leaving them at risk for noise-related health issues. 

Wind turbine manufacturers recommend keeping noise levels within 'relative noise limits': 

Turbine noise emissions must not exceed the level of background noise (both turbine and background noise are measured as a function of wind speed); such limits are often supplemented with a low absolute maximum noise limit to cover those situations in which turbines are located in areas of very low background noise.

-  Click to read more on Vestas noise emissions standards

-  Click for noise study referenced by State of Michigan

-  Click for Acoustic Ecology 2012  Wind Farm Noise Study

Noisy Turbines = Higher Revenue

Without zoning in place to regulate noise, Heritage takes advantage of our hospitality on the Garden Peninsula. VP of Operations Rick Wilson operates the turbines without regard to neighboring parcels and our health, ability to sleep, and enjoyment of our properties, regardless of numerous complaints from residents. In a July Garden Township meeting, Mr. Wilson stated he could regulate the noise emitted by the wind turbines, but doing so would adversely affect revenue.

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We asked for relief

In October 2012, over 70 residents of Garden Township presented Delta County Commissioners with a petition seeking intervention for noise relief. The petition was ignored.

Subsequently, we asked for greater setbacks, better noise controls, consideration to our safety, protection of our property rights. The response from Delta County was the permissive zoning that we are addressing today. Are revenues to the county really worth more than the health, safety and welfare of residents?

How is the County Protecting Us Now?

The County requires the next phase of turbines to adhere to the following noise limitations: 

Sound Pressure Level: The sound pressure level 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, or 45 dB(A) measured at an existing dwelling, whichever measurement is less. This sound pressure level shall not be exceeded for more than three minutes in any hour of the day. If the ambient sound pressure exceeds 55 dB(A), the standard shall be ambient dB(A) plus 5 dB(A). 

TOO LOUD!

Garden Wind Farm residents can tell you that these restrictions will not adequately protect our ability to sleep and the enjoyment of our property!

Acoustic experts call for 35 dB(a) maximum to allow residents to enjoy their property without suffering noise pollution and its side effects. In addition, experts call for limits of 50 dB(c) to protect from side effects of low frequency sound.

Investigate for Yourself:

Rob Rand, consultant in acoustics with membership in the Acoustical Society of America (ASA) and the Institute of Noise Control Engineering (INCE), prepared a report on Noise produced by wind turbines which was submitted to the Riga (MI) Township Planning Commission.  Click here to view the report: Rob Rand – Report on Turbine Noise Levels

An investigation into noise, siting to prevent complaints by Rand Acoustics: Wind Turbine Sound Presentation - Watch the Video

Acoustic Ecology 2012  Wind Farm Noise Study

Where will the next phase be built?

Yellow highlighted areas show leaseholder land.

Video of June 2014 Wind Energy Presentation in Delta County