327 F. Supp. 3d 1028
E.D. Mich.2018Background
- Tuscola Wind III, LLC applied for a Special Land Use Permit (SLUP) to build 19 turbines in Almer Township; Planning Commission held public hearings and Spicer Group reviewed the application.
- Key disputes during review: appropriate noise metric (Tuscola advocated 1‑hour LEQ; Township read ordinance as an absolute 45 dBA max/Lmax), adequacy of economic/property‑value studies, above‑ground lines, security fencing, and turbine braking documentation.
- After four new board members elected, the Township adopted a wind moratorium and ultimately the Township Board denied Tuscola’s SLUP, citing the noise provision, inadequate localized economic analysis, fencing, braking documentation, and above‑ground lines; the denial was affirmed in a prior opinion.
- Tuscola sued asserting: procedural due process (Count II), equal protection (Count III — class‑of‑one), violation of the Zoning Enabling Act re: moratorium (Count IV), and Open Meetings Act violations (Count V — meetings of members‑elect and e‑mail communications).
- The Court granted summary judgment in part: dismissed Counts II–IV (due process, equal protection, ZEA challenge) and dismissed the members‑elect portion of the OMA claim but allowed the post‑sworn email‑deliberation OMA claim to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural due process (Count II) — did Tuscola have a protected property interest in the SLUP? | Tuscola: option agreements and leases give it a property interest in use/possession so denial deprived property without adequate procedure. | Township: approval of SLUP is discretionary under zoning law; no vested property interest absent permit issuance or substantial construction. | Court: No protected property interest in SLUP approval; procedural‑due‑process claim dismissed. |
| Equal protection — class‑of‑one (Count III) | Tuscola: Township singled out wind developers by requiring localized economic/property‑value studies unlike other SLUPs (e.g., cell towers). | Township: SLUP review is discretionary; differences (scale, moving parts, noise, shadow flicker) are material; no evidence of animus toward Tuscola specifically. | Court: Class‑of‑one theory poorly suited here; Tuscola failed heavy burden to show similarly situated comparators or invidious animus; claim dismissed. |
| Zoning Enabling Act challenge to moratorium (Count IV) | Tuscola: moratorium enacted improperly (by resolution) and was relied on to deny the SLUP; extension blocks reapplication. | Township: Denial was supported on the merits independent of moratorium; invalidating moratorium would not redress Tuscola’s injury; challenge is moot or advisory without a live application. | Court: Claim is moot/justiciability defect; dismissed. |
| Open Meetings Act (Count V) — meetings of members‑elect and email deliberations | Tuscola: newly elected members met and deliberated before being sworn; after swearing, Board used BCC email practice to deliberate privately. | Township: Members‑elect are not a "public body" under OMA and thus pre‑sworn gatherings are not covered; emails did not show explicit deliberation or replies. | Court: Members‑elect not covered by OMA (pre‑sworn claim dismissed). Post‑sworn email practice raised factual questions under Markel and summary judgment denied as to email‑deliberation OMA claim. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Anderson v. Liberty Lobby, 477 U.S. 242 (standard for assessing genuine dispute at summary judgment)
- Logan v. Zimmerman Brush Co., 455 U.S. 422 (state law governs property‑interest inquiry for due process)
- Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (property interest requires legitimate claim of entitlement)
- Seguin v. City of Sterling Heights, 968 F.2d 584 (vesting rights require permit and construction; no vested rights preissuance)
- Richardson v. Twp. of Brady, 218 F.3d 508 (no protected property interest in mere zoning procedures)
- Engquist v. Oregon Dep't of Agr., 553 U.S. 591 (limits on class‑of‑one equal protection theory in contexts of discretionary, individualized decisionmaking)
- Loesel v. City of Frankenmuth, 692 F.3d 452 (class‑of‑one claims subject to a heavy burden; scrutiny of similarly situated analysis)
- Vill. of Willowbrook v. Olech, 528 U.S. 562 (foundation of class‑of‑one doctrine)
- FCC v. Beach Commc'ns, 508 U.S. 307 (rational‑basis review permits speculative governmental justifications)