(Photo by John Cook) All of the parts needed to erect wind turbines in Fairgrove and Juniata townships associated with the NextEra Pegasus project are near their base supports. The final portion of construction, however, has been on hold for about a year for various reasons.

Judge reinstates SLUP for wind-energy project

A portion of the saga between a local township and a wind-energy giant has been resolved.

At least for the time being.

On Thursday, Tuscola County Circuit Court Judge Amy Grace Gierhart ruled that the special land use permit (SLUP) granted to Pegasus Wind, LLC, must be reinstated.

The decision is the most recent development in the ongoing battle between Pegasus Wind – the latest Thumb-area wind farm project from Juno Beach, Florida-based NextEra Energy Resources – and Juniata Township.

Background

In fall 2017, officials from NextEra approached officials from Fairgrove and Juniata townships with the proposition of a new wind farm – Pegasus – which would place about 60 wind turbines in the two townships. 

The Fairgrove Township Planning Commission approved the Pegasus SLUP in December 2017, and the Juniata Township Planning Commission followed suit in January 2018, but not without controversy. The Juniata Planning Commission met for more than 14 hours – in a span of three different meetings – before approving the SLUP on Jan. 13, 2018.

In the fall of 2018, Pegasus construction began with the building of base supports and construction of access roads that lead from a main roadway to each base support. NextEra has said that this portion of the construction constitutes the majority of the work needed to build the turbines, and that the company already has poured $80 million into the project. 

Three members of the Juniata Township board – Supervisor Neil Jackson, Treasurer Andrew Stark and Clerk Heidi Stark – were subsequently recalled during the 2018 general election and replaced by candidates who are against the Pegasus project. 

In January 2019, the planning commission – featuring multiple new members – 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. At that time, NextEra still needed approval from the Federal Aviation Administration and Michigan Department of Transportation Office of Aeronautics to continue with the erection of the turbines.

On March 26, the planning commission revoked the SLUP. Days later, NextEra filed a lawsuit against Juniata Township, its board, and planning commission asking for the revocation to be overturned.

On April 18, Gierhart issued a stay in favor of NextEra, meaning the alternative energy corporation  could resume Pegasus construction. Juniata Township appealed the ruling, and lost.

Giehart, in her Thursday decision, made a final ruling on the matter, although Juniata Township is likely to appeal that decision as well.

Juniata Township approval

During the public speaking portions of the January 2018 meetings, residents spoke for and against the wind project, with most voicing the opinion that they did not want turbines in their community. For example, during the Jan. 3, 2018, meeting, 40 community members addressed the planning commission with opinions on the wind project. Thirty-two expressed displeasure in either the wind project or the planning commission’s handling of multiple aspects of the SLUP approval. Eight spoke in support of the wind project.

The board passed the SLUP by a 5-0 vote. But members of the Concerned Citizens of Juniata Township – a newly formed community-based group – pointed out areas they believed did not fall within the guidelines of the Juniata Township wind ordinance.

Some of the more notable issues were the subjects of sound levels, shadow flicker and setback distances.

Section 2 of the Juniata wind ordinance – Commercial Wind Energy System Requirements – point No. 8 addresses maximum noise levels of wind turbines. It states: “Any proposed commercial wind energy system shall produce sound levels that are no more than sixty-five (65) decibels as measured on the db(A) scale at the property lines of the site in question.”

Sound tests done by NextEra contractor Epsilon Associates, of Massachusetts, indicated that some non-participating Juniata residents would hear brief intervals of sound over 65 decibels, but that the average sound in those areas would be about 45 decibels or lower.

Those against the project said that the 65-decibel limit was a hard line in which no sound level should pass, while planning commission members stated that they interpreted the regulation to be an average sound level.

As the sun passes behind wind turbines, intermittent shadows are cast across the landscape. This is called shadow flicker and is a primary concern of community members when wind farms are mentioned. It has been a cause of debate during the process in Juniata Township.

No. 19, Point D, of Juniata’s Commercial Wind Energy System Requirements states: “The facility shall be designed such that shadow flicker will not fall on, or in, any existing dwelling. Shadow flicker expected to fall on a portion of a residential parcel may be acceptable under the following circumstances: 1. The flicker will not exceed thirty (30) hours per year; and 2. The flicker will fall more than 100 feet from an existing residence.”

The language seems to infer that shadow flicker on any home in the township is unacceptable, unless mitigation is agreed upon between a company and resident. Both the Juniata Township Planning Commission and concerned citizens’ group interpret this language differently.

The planning commission interpreted the condition as non-participating residences would see no more than 30 hours of shadow flicker in a year. According to NextEra studies, over 200 non-participating homes would see some amount of shadow flicker each year, with none sustaining over 30 hours.

Many Juniata Township residents believe that the Pegasus project did not comply with its township wind ordinance, and therefore the NextEra SLUP should never have been granted in the first place.

Winds of change

Even before the planning commission’s SLUP approval, Juniata Township residents were looking for change within the township board. A recall was initiated against the board in both December 2017 (the language in this attempt was not deemed clear and factual by the Tuscola County Election Commission) and January 2018. The election commission approved the language following the January attempt.

An appeal of the recall failed, and Jackson and the Starks were placed on the November ballot, where they lost and were replaced by Garrett Tetil (supervisor), Brenda Bigham (clerk) and Judy Cockerill (treasurer).

Subsequently, in January, the board (which also consists of trustees Elaine Schunn and Brenda Wachner) voted to increase the size of its planning commission from five to seven members. The planning commission presently contains no members who voted to approve the Pegasus SLUP in January 2018.

In addition to changes in Juniata Township, changes were made to the Tuscola Area Airport Authority Board in an attempt to thwart the project. 

In April, shortly before the board met to discuss appealing an FAA decision approving 59 turbines associated with Pegasus, the Ellington Township board voted to become a part of the airport authority board. Each municipality on the airport board – the city of Caro and village of Cass City, along with the townships of Almer and now Ellington – get to place two members on the board. 

Both Ellington appointees, Russ Spiers and Eric Zbytowski, voted to appeal the FAA decision. Also before the April meeting, Almer Township officials removed Brian Schriber, who had been in favor of a NextEra project slated for Almer Township, and replaced him with Jim Tussey, who has been outspoken against wind farms in the Thumb.

As a result of the changes, the authority board voted to appeal the FAA ruling.

FAA ruling

In order to complete the Pegasus project, NextEra needs approval from several entities – including the FAA, Michigan Office of Aeronautics, Tuscola Area Airport Zoning Board, Tuscola County and the local townships.

In early April, the FAA made a determination of the then 59 turbines associated with the project. Fifty-two were given a determination of “no presumed hazard” while the other seven were given the determination “does not exceed” FAA regulations, according to the FAA’s website.

The FAA decision was appealed by several entities, including the Tuscola Area Airport Authority Board, city of Caro and Juniata Township, but the ruling was upheld. 

Zoning board of appeals

Despite Gierhart’s decision, the Pegasus project is still in limbo.

In July, the Tuscola County Zoning Board of Appeals, which is separate from the Tuscola Area Airport Authority Board, met three times to hear from community members and discuss approving or denying a variance on 33 wind turbines associated with the project which are near the Tuscola Area Airport, and because of their height (about 500 feet), needed to be approved by the board of appeals.

The board voted 3-1 to deny the variances. 

NextEra needs approval from the board of appeals to continue the project, meaning that construction is still halted. NextEra has filed an appeal in Tuscola County Circuit Court, challenging the decision of the board of appeals, which is pending.

John Schneider is editor of The Advertiser. He can be reached at john@tcadvertiser.com.

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