Fulton Twp Defends Wind Farm Decision, Open Meetings Act Allegation in Circuit Court

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By William Meiners
Herald Staff Writer
[private] Fulton Township found itself on the defensive about an alleged violation of the Michigan Open Meetings Act in 29th Circuit Court last Monday, as Invenergy, the Chicago-based company behind the Heartland Farms Wind Project, has used the charge to appeal the April decision of the Board of Trustees to deny special-use permits on 12 wind turbines in the area.
Originally pitched to build 72 wind turbines across six Gratiot County townships, Invenergy representatives had hoped Heartland Farms would break ground this year. Throughout winter and spring, various township planning commissions and boards held public meetings, as Invenergy reps and other experts spelled out particulars on the sound, distance from homes, and the other things that accompany wind turbines.
After Washington Township Board approved the project with “conditions” in June, they joined Newark, New Haven, North Shade, and North Star townships in effectively greenlighting the wind farm. The Fulton Board, which reversed a recommendation of its Planning Commission in March, became the lone township out of six to nix the project.
Leading up to the court date, Fulton Twp. voted to switch counsel in August, replacing Lansing-based Fahey Schultz Burzych Rhodes with Foster Swift from Grand Rapids. Mike Homier, who represented Fulton in the courtroom, had told the board that “land-use” cases are routine for Foster Swift, which uses up to 10 lawyers on his team with different areas of expertise, “because we do it all the time.”
James Griffin, representing the plaintiff, argued that Fulton Township’s denial “was not supported by substantial evidence” and respectfully requested that the decision be reversed. Griffin specifically took issue with the board’s decision to go against the recommendation from the Fulton Planning Commission, as well as the timing of evidence presented after previously presented time for “public comments.”
Kathleen Defever, the San Francisco-based lawyer who grew up in Fulton Township and has returned home several times throughout the year to lead resistance efforts against the wind project, was unimpressed with the plaintiff’s argument. “The parties made the same arguments they made in their briefs,” she said. “Basically, Invenergy argues that they should have been approved because the planning commission approved the project and that the Board of Trustees could not make a different decision.”

In her estimation, it’s “an absurd argument” with no basis in the law. “Why would you have the board review the decision at all, if they were completely bound to what the planning commission says and couldn’t make their own decision?” Defever asked. “Plus, the board members are the elected representatives of the public, so of course they get the final say.”
The Fulton Planning Commission is a nominated (not elected) body that makes a recommendation to the board, Defever asserted. “If you are allowing an unelected body to make the decisions for the voters, you are robbing the people of their voices completely,” she said. “That’s not democracy.”
Invenergy argued that expert reports from Rick James, a sound engineer, and Chris Doozan, a planning expert, should have not been considered by the Fulton Board before making its final decision.
Defever found this argument to also be unsound. “There is nothing in the law that limits the board in any way,” she said. “Invenergy agreed, as a matter of law, that the expert reports were appropriately submitted because they accepted them as part of the court record. And yet, they then tried to argue the opposite in front of the judge.”
Judge Cori Barkman, whom is presiding over the case, did not render a decision at the conclusion of the proceedings, but is expected to make a ruling soon.

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