Towards a Better Process

Purpose and Use of Sample Zoning

Background Michigan's entry into wind energy production started in 1996 with a single commercial wind turbine installed in Traverse City. In 2019, approximately 2000 megawatts (MW) are generated by wind energy in Michigan accounting for about 5% of the total energy produced.2 This document is designed for local units of governments in Michigan that are amending a zoning ordinance to include wind energy systems (WES) for the first time or amending an existing regulation. As of December 2019, less than half of all Michigan communities had adopted wind energy zoning ordinances (753 out of 1773 total units of government).3 This sample zoning resource was originally developed in 2008 and is periodically revised with the intent of striking a balance between the need for clean, renewable energy and the necessity to protect the public health, safety, and welfare. New research and technological advances around wind energy invite periodic revision. While some communities will choose to model zoning on similarly situated communities in Michigan, it is beneficial to consider recent research, experiences, standards, and regulations in the broadest context. This document refers to wind energy system regulations and research from Michigan, other states, Canada, and Europe. Policy and Process This sample zoning resource begins with a discussion of due process, related case law, public acceptance factors related to wind energy development, and steps towards a better process. Wind energy proposals can bring controversy and the size of a project can be at a scale the community has not yet experienced. Despite the large scale or changes to normal procedure, the basics of due process and reasonable regulation based on a plan still apply. The guidelines, court cases, and cautions in this document offer supplemental policy and process considerations for wind energy regulation. Sample Zoning Sample zoning language is included as a resource for local governments to consider when amending the zoning ordinance to include WES. This document offers sample regulation for temporary anemometers, on-site, and utility-scale WES. Temporary anemometers are often installed as a precursor to a utilityscale WES to assess the wind resource. On-site WES, generally, are sized to primarily serve the needs of a single home, farm, or small business. Utility-scale WES are sized to provide power to wholesale or retail customers using the electric utility transmission and distribution grid to transport and deliver the wind generated electricity. The sample zoning language offers a range of options and does not prescribe a specific set of zoning requirements. Michigan's land use patterns, average parcel sizes, and dwelling densities vary among communities, making a one-size-fits-all recommendation impractical. Additionally, grid-like road networks, major transmission lines, and natural features, can have the effect of creating a relatively more

2 U.S. Energy Information Administration (EIA), Michigan State Profile Estimates (2020). https://w-ww.eia.govistateianalvsis.ph.p?sid-NII 3 Michigan Department of Environment, Great Lakes, and Energy (EGLE), Office of Climate and Energy, Zoning for Renewable Energy Database (2019). https://vk-ww.michigansoviclimateandenergyi0,4580,7-364-519951--,00.html

confined canvas for wind energy development in Michigan than in other areas of the country with significantly larger parcels or limited road networks. Appendix This updated version also includes detailed information on wind turbine noise (Appendix A: Wind Turbine Noise) as certain aspects sound and noise regulation introduce complex regulatory language that may be unfamiliar. This is followed by a comparison of WES zoning regulation in Michigan communities and Midwestern states (Appendix B: Comparison of Regulation) and a more detailed look at shadow flicker and Federal Aviation Administration (FAA) lighting (Appendix C: Shadow Flicker, FAA Lighting). An annotated bibliography of Michigan wind energy research (Appendix D: Summary of Michigan-Specific Wind Energy Research and Information) and revision history (Appendix E: List of Revisions to this Document) are also provided.

This is a fact sheet developed by educators within MSU Extension and was reviewed by outside agencies and experts. This work refers to university-based peer reviewed research, when available and conclusive, and based on the parameters of the law as it relates to the topic(s) in Michigan. This document is written for use in Michigan and is based only on Michigan law and statute. One should not assume the concepts and rules for zoning or other regulation by Michigan municipalities and counties apply in other states. This is not original research or a study proposing new findings or conclusions.

Due Process

All the principles and rules for zoning apply to zoning regulations relating to WES. Strong opposition or support of a WES does not mean that basic due process and other rules do not apply. These issues are covered here because communities have been observed trying to circumvent these basic principles because of strong feelings for or against WES development in their jurisdiction.

Procedural Due Process

Requirements for procedural due process,4 meaning going through all the notifications, rendering decisions based on standards in the zoning ordinance and competent and material evidence, and more, must be followed. Although wind energy developments can be controversial and potentially overwhelming to a rural community, there are no shortcuts or exceptions to following zoning procedures outlined by the Michigan Zoning Enabling Act.' A failure to follow procedural due process,6 such as improper noticing or an incomplete record of proceedings, is one of the fastest ways to land in court. Procedural due process errors might also include assigning alternates to serve on a planning commission (when there is no legal authority to do so) or missing addresses in the required noticing area for a public hearing. Communities reviewing a wind

4 U.S. Const., amend. V.; Michigan Const. of 1963, Art. I, §17. 5 Schindler, K. (2013, July 22). "Due Process" is often a source of lost court cases in local government. MSU Extension. 2013. https://www.canr.msu.edu/news/due process is often a source of lost court cases in local crovernment

Cornell Law School (n.d.). Procedural due process. In Legal Information Institute's Wex. Retrieved September 3, 2020, from https://www.law.cornell.edu/wexd3rocedural due process