Solar, wind energy bills have impact on Delta County
ESCANABA — Both houses of Michigan’s legislature approved a plan that would reduce local control of solar and wind energy developments last week. The bills now move to Governor Gretchen Whitmer’s desk for her signature.
Whitmer first proposed taking control of solar development from local municipalities and giving it to the Michigan Public Service Commission in her “What’s Next” address on Aug. 20, just three days after her visit to the Upper Peninsula State Fair in Delta County — which has arguably become the epicenter of disputes over solar development in Michigan.
“It should be easier to create jobs and build wind and solar projects. Let’s permit clean energy projects through the MPSC — just like all other sources of energy,” Whitmer said in her August address.
An earlier version of the legislation that was passed by the House on Nov. 2 stripped local control completely by giving the MPSC all power over approving solar and wind development applications. The version amended by the state Senate and approved by the House Wednesday changes the process by giving a local unit of government, like a city or a township, the ability to approve or deny a proposal within a 120-day period.
However, if the proposal meets the requirements of the legislation and a municipality denies the application, an electric provider or independent power producer could submit an application to the MPSC directly.
In effect, the new process would mean local communities will be responsible for vetting projects, but no community is permitted under the legislation to write their own rules that are more strict than what is already prescribed. If a community wanted to have larger setbacks around homes, for example, it would be illegal for that community to require those setbacks in order to approve a project.
Even though the passed legislation provides more local involvement in the process, the legislation is a major blow to multiple communities in Delta County that have pushed back against wind and solar over the last decade by passing restrictive ordinances, including both Delta County and the city of Escanaba, which passed ordinances restricting wind turbines after controversy erupted on the Garden Peninsula when Heritage Sustainable Energy constructed a wind farm there. However, most of the recent local controversy over green energy proposals has come from Escanaba Township.
The township has a storied past with solar development going back to 2017 when a group of landowners, including Delta County Commissioner Bob Barron, were approached by Orion Energy, which sought to lease the land of farmers for the creation of a 1,250-acre utility-scale solar facility.
Initially, the township was receptive, calling solar a “goal” or “opportunity” six separate times in its 2019 master plan. It adopted a stand-alone solar ordinance that would have permitted the development, but that ordinance was found to be insufficient by the township’s then-attorney, Terry Burkhart.
After a major shift in the make up of the township’s board and planning commission, an ad hoc committee that produced a 500-page report on potential solar development and its impacts on the township, and the hire of a new attorney who specialized in solar ordinances, the township approved a 13-page amendment to the zoning ordinance in November of 2022.
The amendment uses an overlay district to restrict utility-scale solar development to an area of less than 400 acres bordering Brampton Township, east of the Escanaba River, the vast majority of which is contained in a single parcel. None of the solar farm proposed by Orion included land east of the Escanaba River, and the amendment effectively barred the landowners from using their land to produce solar power.
The township’s reluctance to allow solar development prior to the zoning ordinance amendment’s adoption also prompted an annexation attempt, spearheaded by Barron, to move roughly 19,000 acres of Escanaba Township to neighboring Cornell Township. Cornell Township is dictated by the county’s zoning ordinance and solar regulations — rules Barron was also involved in writing and adopting.
The annexation ultimately failed.
Following Whitmer’s “What’s Next” address, Escanaba Township joined other municipalities across the state and unanimously approved a resolution opposing the legislation that would give control to the MPSC on Oct. 6. On Tuesday, the county commission approved their own resolution in opposition to the legislation in a split vote with Barron and Board Chair Dave Moyle voting against the resolution.
“The locals abused the property rights of their constituents more than the state and federal government ever dreamed of doing. I believe this resolution just adds insult to injury because you’re condoning that type of action here locally,” said Barron.
Despite the resolution’s passage, the county board’s thoughts on the issue were nuanced. Only Commissioner John Malnar took a hard line against solar development.
“If this goes through, your Public Service Commission is looking at 265,000 acres of solar panels. Now, looking at that, and if you’re looking at that, and it’s all farmland, all the farmland will come to a halt. Where do we get our food? Where do we get our food?” he said.
The legislation does include a requirement that an energy facility “will not unreasonably diminish farmland, including, but not limited to, prime farmland,” but there are no standards outlined in the bills as to what is “unreasonable.”
Commissioner Steve Viau, who opposed the annexation attempt but has historically supported solar as an industry — going so far as to bring in an expert on how land can simultaneously be used for both farming and solar energy production to Delta County earlier this year — focused on the legislation’s stripping of local control.
“I think we take a stance here, whether it does any good or not, I don’t know, but it at least shows that we still want to have some type of control in our community,” he said.
Moyle said he needed more time to learn about the legislation to make an informed vote on the resolution.
Commissioner Bob Petersen, expressed he had mixed feelings about the legislation because he believes both that the individuals who wanted to use their land for solar should have been able to do so and that local government should be the primary arbitrator of issues because it is the easiest level for individuals to interact with directly.
“There was a chance to work through this and hopefully, … possibly come to a solution on it that would have benefitted everybody, but now it’s not there. Now we’re not going to have that choice anymore. It’s just going to get done, and you won’t have any say about how it’s done now. And I feel really bad about that,” he said.
The legislation enrolled Wednesday would require solar panels and other power generating structures be located 300 feet from the nearest point on the outer wall of an occupied community building or dwelling on properties not participating in a solar development — up from 150 feet in the original bill passed by the House on Nov. 2 that was later amended by the Senate — 50 feet from a public road right-of-way, and 50 feet from the nearest shared property line with a nonparticipating property.
A solar facility also must be entirely enclosed in fencing, and solar panels may not exceed a maximum height of 25 feet above the ground when the arrays are at full tilt. Solar facilities may not exceed 55 decibels on an hourly average, modeled at the nearest outer wall of the nearest dwelling located on a nonparticipating property.
The requirements, however, pale in comparison to what Orion offered the township while attempting to get its project off the ground. In a revision to their initial plan made Sept. 5, 2019, Orion reduced the size of the project to 810 acres. They proposed setbacks of 500 feet from primary residences on parcels neighboring the project, eliminated any solar equipment within 250 feet of the centerline of a public road, created wildlife pathways, limited solar panels to 12 feet in height, planned to use screening fencing instead of chainlink around the project, and restricted outdoor lighting to 15 motion-detector lights located in key areas around the project.
The township’s ordinance approved in November of 2022 specifies that all solar energy systems, including solar panels, must be set back 500 feet from all lot lines and public road right of ways; that solar panels may not be more than 15 feet tall at maximum tilt; that no more than 20% of a total lot area may be covered by a commercial solar energy system; that noise cannot exceed 50 decibels measured at the lot line of nonparticipating parcels; sets forth planting screen requirements; and requires the township be allowed to inspect the facility with only 24 hours notice — all of which would be null and void if Whitmer signs the bill into law as expected.
“The locals made their bed. Let them lay in it,” Barron said while arguing against the county’s resolution Tuesday.
A separate part of Escanaba Township’s solar rules, a prohibition of commercial solar development on land enrolled in the PA 116 Farmland and Open Space Preservation Program is also likely to be invalidated by Whitmer in the coming days. A separate bill enacted by both houses Wednesday, Sentate Bill No. 277, makes the operation of solar facilities on PA 116 land a permitted use so long as that land is in a deferment period for tax benefits.