As expected, a lawsuit has been filed against Juniata Township following the township planning commission’s decision to revoke a special land use permit (SLUP) for construction of the Pegasus Wind Energy Center.
Pegasus’ parent company – Juno, Fla.-based NextEra Energy Resources – filed a complaint Monday in Tuscola County Circuit Court against Juniata Township, its board of trustees and planning commission requesting a preliminary injunction and/or stay of enforcement to prevent Juniata Township from revoking the SLUP.
“This week, we filed a lawsuit against Juniata Township, its board and planning commission,” Bryan Garner, NextEra director of communications, said Tuesday. “We have asked the court to invalidate the board’s illegal actions and restore our project’s permit. We are committed to protecting our project, including the tens of millions of dollars we have invested in it, and the landowners who have spent years working with us to develop it.”
“We have no comment at this time, except that we are aware of the lawsuit and that the township will respond to Pegasus Wind’s allegations in court,” said Juniata Township attorney Laura Genovich.
At a special meeting on March 26, the Juniata Township Planning Commission voted to revoke a special land use permit (SLUP) from NextEra Energy Resources that the commission had approved in January 2018.
NextEra approached officials in Juniata, Gilford and Fairgrove townships in fall 2017 with a potential wind-farm project – Pegasus – that would place 63 wind turbines in the townships – 31 of which would be in Juniata Township.
The Fairgrove Township Planning Commission approved the Pegasus SLUP in December 2017, and the Juniata Township Planning Commission followed suit in January 2018.
In January 2019, the planning commission gave NextEra 30 days to get its permits in order, saying that if all federal, local and state permits, licenses and variances were not met on March 5, the commission would discuss possible revocation of the SLUP. The March 5 meeting was adjourned with no decision made on SLUP revocation.
At the March 26 meeting, which was held in the cafeteria of Caro High School, the commission voted 4-1 to rescind the SLUP, with planning commission members Nancy Laskowski, Richard Peterhans, Mike Wilson and Brenda Wachner voting for revocation, and Ione Vice voting against it. Two planning commission members – Joe Baranic and Carol Hess did not vote because of a conflict of interest.
The planning commission pointed to the code compliance section of the Pegasus SLUP application as the main reason for revocation. The section reads: “The Pegasus Wind Energy Center will comply with all applicable federal, state, and local laws and regulations and will obtain all required federal, state, and local approvals, licenses, permits or variances for the proposed wind project prior to the date of construction. NextEra Energy Resources performs a systematic evaluation of its wind projects to ensure they are sited in an environmentally responsible manner and in compliance with all applicable local, state and federal laws and regulations.”
Despite a portion of the section stating that NextEra would not begin construction until it retains all applicable permits, the Pegasus Project has begun with the construction of base supports as well as roads to the supports.
At the March 5 planning commission special meeting, NextEra representatives said they interpreted the passage as meaning that Pegasus could be constructed to the point of which permits NextEra is already in possession of apply. NextEra needs multiple permits in order to erect the Pegasus project. But NextEra officials have said those permits are only needed to construct the turbines themselves, not base supports or other necessary items.
NextEra has not received applicable permits to date from the FAA, Michigan Department of Transportation Tall Structures or the Tuscola Area Airport Authority.
“It is unfortunate that members of the Juniata Township Board chose to disregard the law and penalize their constituents in an attempt to advance their short-sighted political agenda against responsible wind development,” Garner said. “Our company began construction on the Pegasus Wind project last fall, consistent with the terms of our special land use permit and the opinion of the (Juniata) township attorney that the company was in compliance with the law. We have not erected any wind turbines or done anything beyond the terms of our permits.”
According to the complaint, “The (Juniata Township Planning Commission’s) determination that Pegasus Wind has violated its SLUP by beginning construction without FAA, MDOT, and Tuscola Area Airport Authority approvals does not represent the reasonable exercise of discretion granted by law to the township and is not based on competent, material, and substantial evidence on the whole record.”
About 75 percent of the project is complete, the complaint states. At the March 26 planning commission meeting, John Di Donato, vice president of renewable energy for NextEra Energy Resources, said the company already has invested more than $80 million in ground-level activities.
On March 18, a complaint by land-lease owners, who have contracted with the Pegasus project, requesting that the planning commission not be allowed to revoke the Pegasus SLUP, was heard in Tuscola County Circuit Court. Judge Amy Grace Gierhart, who also is slated to preside over the NextEra complaint, denied the motion.
“By revoking the permit for the Pegasus Wind project, the Juniata Township board violated the rights of more than 80 Juniata citizens who chose to be a part of this project to develop their properties, enhance their incomes and improve their community,” Garner said. “The board also sent a message to anyone who would consider doing business in Juniata Township that permits are meaningless and subject to the political whims of those who happen to be in office at the moment.”
This is not the first time NextEra has filed complaints against Tuscola County townships.
In February and March 2017, respectively, NextEra filed lawsuits against Almer and Ellington townships and their boards, in essence alleging that an effort had been underway to deny the planned NextEra III Wind Project, which would have been the fourth NextEra wind farm in the Thumb, following Pheasant Run (Huron County), Tuscola Bay (Tuscola, Huron and Saginaw counties) and Tuscola II (Tuscola and Bay counties).
The lawsuit against Juniata Township was filed in Tuscola County court because it has jurisdiction in the case, according to a NextEra attorney.
In August, District Court Judge Thomas L. Ludington ruled in favor of Almer and Ellington townships in each lawsuit.
The main difference between the legal proceedings against Almer and Ellington townships and potential proceedings against Juniata Township is that Almer and Ellington never approved a SLUP.
It is unknown when a decision will be made in the Juniata Township complaint, although NextEra states in its complaint that it will “experience immediate and irreparable injury if this court does not” prohibit the township from revoking the SLUP within 30 days.
John Schneider is editor of The Advertiser and can be reached at firstname.lastname@example.org.