Tuscola Wind III, LLC v. Almer Charter Township et al

Filing 79

Opinion and ORDER Granting Defendants' Second 75 Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TUSCOLA WIND III, LLC,
Plaintiff,
v

Case No. 17-cv-10497
Honorable Thomas L. Ludington

ALMER CHARTER TOWNSHIP, et al,
Defendants.
__________________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR
SUMMARY JUDGMENT
On February 15, 2017, Plaintiff Tuscola Wind III, LLC, (“Tuscola”) filed a complaint
naming the Almer Charter Township and that Township’s Board of Trustees as Defendants. ECF
No. 1. Count One of the Complaint is the “Claim of Appeal.” Compl. at ¶¶ 100–124. Tuscola
Wind’s claims arise out of Defendants’ denial of a Special Land Use Permit (“SLUP”) that would
have permitted Tuscola Wind to construct the “Tuscola III Wind Energy Center” in Tuscola
County, Michigan. Compl. at 6. Oral argument on the claim of appeal was held on October 5,
2017. Approximately one month later, the Court issued an opinion and order affirming the Almer
Charter Township’s denial of the SLUP application. ECF No. 39.
On February 26, 2018, Defendants filed a motion for summary judgment on the remaining
counts of the complaint. ECF No. 55. Specifically, Defendants argued that no violation of
procedural due process rights occurred, that no equal protection violation occurred, that Tuscola’s
Zoning Enabling Act claim is meritless, and that Tuscola’s Open Meetings Act claim should be
dismissed. On April 24, 2018, Defendants filed a motion in limine seeking to exclude evidence
regarding noise emissions from Caro Motorsports from admission at trial. ECF No. 64. The Court

granted the motion for summary judgment in part and denied the motion in limine as moot. The
Court dismissed Counts Two, Three, and Four.
The Court dismissed Count Five in part with one issue surviving. The surviving issue was
whether the Township violated the Michigan Open Meetings Act (OMA) because of the use of
certain communication procedures. The inquiry focused on two emails sent by Jim Tussey on
December 16, 2016 and a third email also sent by Mr. Tussey on December 26, 2016. These emails
presented a genuine issue of material fact as to whether the Township violated OMA and thus,
summary judgment was not granted on this issue.
On June 27, 2018, Defendants filed a motion for leave to file a second motion for summary
judgment on the surviving issue. ECF No. 72. The Court granted the motion. ECF No. 74. On July
6, 2018, Defendants filed a second motion for summary judgment on the remaining issue. ECF
No. 75. Specifically, Defendants argued that Plaintiff sought an advisory opinion and that OMA
does not permit the declaratory relief that Plaintiffs seek. Defendants further argued that Plaintiffs
cannot establish by admissible evidence violations of OMA by Defendants and that any other
evidence would be inadmissible under the “best evidence rule.” For the following reasons, the
second motion for summary judgment will be granted.
I.
In the November 3, 2017 opinion and order, the Court summarized, at length, the
procedural and factual history of Tuscola’s SLUP application and the Township’s consideration
of the same. Because those facts have considerable relevance to the presently disputed issues, large
portions of that factual summary will be reproduced here.1

1

For the full summary, see Nov. 3, 2017, Op. & Order at 1–26.

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Tuscola Wind III, LLC, is a Delaware limited liability company, which is indirectly wholly
owned by NextEra Energy Resources, LLC. Tuscola Wind SLUP App. at 1, ECF No. 30, Ex. B.
Tuscola is attempting to build the “Tuscola III Wind Energy Center” in Tuscola County, Michigan.
Id. The project, if completed, would include 55 wind turbines in Fairgrove, Almer, and Ellington
Townships, and would produce enough energy to supply 50,000 homes with wind energy. Id.
The Almer Township Zoning Ordinance characterizes wind energy systems as special land
uses. As such, Tuscola was required to seek a Special Land Use Permit (“SLUP”) from the
Township for the project. See Almer Zoning Ord. Art. 24, ECF No. 30-2, Ex. A. Pursuant to
Section 2401 of the Zoning Ordinance, the first step in receiving approval for a wind energy system
is to submit a SLUP application to the Township’s Planning Commission. Id. at § 2401. Upon
receipt of the application, the Planning Commission is required to hold a public hearing within 45
days. Id. After the public hearing, the Planning Commission recommends either granting or
denying the application to the Township Board and must state its reasons for the decision. Id. Once
the Planning Commission issues its recommendation, the Township Board will render a decision
on the SLUP application. Id.
On September 23, 2016, Tuscola submitted its SLUP application to the Almer Township
Planning Commission. To assist in its consideration of the application, the Township retained the
Spicer Group, Inc., an engineering consulting firm. On November 8, 2016, the Spicer Group
submitted a report to the Planning Commission analyzing Tuscola’s SLUP application. Spicer
Rep., ECF No. 30, Ex. F. In the report, the Spicer Group concluded that Tuscola had complied
with many, indeed most, of the Zoning Ordinance’s requirements. But the Spicer Group did
identify a number of outstanding issues. Among other recommendations, the Spicer Group
suggested that the Planning Commission should require Tuscola to commission or identify an

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economic impact study for the proposed Almer Township project. Id. at 5. The Spicer Group also
noted that Tuscola had not provided information confirming that the proposed turbines had a
braking device which complied with the Zoning Ordinance. The Spicer Group explained that
Tuscola was seeking an exception to certain Zoning Ordinance requirements: first, instead of
building an 8-foot fence around the turbines, Tuscola was requesting leave to keep the structures
locked at all times; and, second, Tuscola was seeking leave to build aboveground transmission
lines. Finally, the Spicer Group indicated that Tuscola’s noise emissions report left several
questions unanswered, including whether the 45 dBA limit was measured to the closest road, or
simply to the closest road adjacent to a non-participating property. Id. at 7.
On November 10, 2016, the Planning Commission held a public hearing to discuss the
SLUP application. Ultimately, the Planning Commission concluded that additional information
was necessary before the SLUP application could be ruled upon. Accordingly, the public hearing
was adjourned. After the hearing, Tuscola sent a number of responses to the Planning Commission
which addressed the issues and concerns identified by the Spicer Group and the Planning
Commission.
On November 8, 2016, four new Board members were elected. According to Tuscola, all
four new members were “part of the anti-wind Ellington-Almer Concerned Citizens Group.” Pl.
App. Br. at 6, ECF No. 31. The new Board members took office on November 20, 2016, and held
a special meeting on November 22, 2016.
The new Board approved the “Wind Energy Conversion Systems Moratorium Ordinance”
at the November 22, 2016, special meeting. Moratorium, ECF No. 30, Ex. M. See also Nov. 22,
2016, Meeting Minutes, ECF No. 30, Ex. N. In the moratorium, the Board indicated that
applications for “Wind Energy Conversion Systems may be proliferating” and so “[t]he Township

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Board requires sufficient time for enactment of amendments to its Zoning Ordinance to establish
reasonable regulations pertaining to the establishment, placement, construction, enlargement,
and/or erection of Wind Energy Conversion System.” Moratorium at 2. Thus, the Board enacted a
moratorium, on a temporary basis, on the establishment, placement, construction,
enlargement, and/or erection of Wind Energy Conversion Systems within the
Township and on the issuance of any and all permits, licenses or approvals for any
property subject to the Township’s Zoning Ordinance for the establishment or use
of Wind Energy Conversion Systems. . . . [T]his Ordinance shall apply to any
applications pending before any Township board or commission, including the
Township Board, Planning Commission or Zoning Board of Appeals.
Id. at 3.
After a second public hearing, Tuscola, the Spicer Group, and the Planning Commission
engaged in correspondence regarding the issues identified at the hearing. On January 4, 2017, the
Planning Commission held its third and final public hearing on the SLUP application. Jan. 4, 2017,
Hearing Tr., ECF No. 30, Ex. X. At the hearing, Tuscola summarized the documents it had
submitted since the last hearing. Planning Commission member Daniels then moved to recommend
denial of the SLUP application. Id. at 44. After discussing their opinions on the application, the
Planning Commission voted 3 to 1 to recommend denial of the SLUP application (two members
did not vote because of a conflict of interest). Id. at 51–52.
On January 17, 2017, the Almer Township Board held a public meeting to review the
Planning Commission’s recommendation regarding the SLUP application. Jan. 17, 2017, Tr., ECF
No. 30, Ex. DD. After opening the floor to public comments (including comments by a Tuscola
representative), the Board discussed the Planning Commission’s recommendation to deny the
SLUP application. Every Board member to discuss the recommendation on the record was
supportive of the Planning Commission’s rationale for denial. And most Board members appeared
to focus on the noise emissions issue. For example, Board Member Rosenstangel stated that the

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Planning Commission’s recommendation was “very well put together. And my concern was the
45 decibels shall not exceed. And I think that’s what we should stick with is it shall not exceed the
45 decibels.” Id. at 19. Board Member Graff made a similar statement:
I also agree with the shall not exceed. I look at this not any different than a speed
limit. If you’re going 55 miles an hour, 55 miles an hour is the speed limit that
you’re supposed to have, you can’t average it out. You can’t drive from Saginaw
to Cass City and go 75 miles an hour, but you have to slow down for all the little
towns in between. When the police officer stops you outside of Cass City, you don’t
say, well, you have to relook at it because, if you average it out, I was only going
55 miles an hour.
Id. at 20–21.
Likewise, Board Member Tussey (who is the Board’s Planning Commission
representative) reiterated his reasons for opposing the SLUP application. Ultimately, the Almer
Township Board voted 5 to 1 to deny the SLUP application. Id. at 33–35.
The Board simultaneously issued a Resolution articulating its rationale for denying the
SLUP application. Res. Deny. SLUP, ECF No. 30, Ex. FF. In the Resolution, the Board identified
five areas in which the SLUP application did not comply with the Zoning Ordinance. First, the
Board faulted Tuscola for not providing an adequate economic impact study. Despite being asked
to “provide a property values analysis that was localized to Almer Township,” Tuscola “provided
property value analyses based on other states, as well as some information concerning personal
property values in Michigan, but still provided no real property value analyses using Michigan
data.” Id. at 6–7 (emphasis in original).
Second, the Board found that the SLUP application did not comply with the Zoning
Ordinance’s limit on noise emissions.
Third, the Board explained that Tuscola had not complied with the ordinance’s requirement
that an eight-foot security fence be placed around the turbines. The Board acknowledged that
Tuscola sought a variance from that requirement from the Planning Commission, but noted that
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the variance was not approved. And the Board concurred with that decision: “The Township Board
also does not approve this alternative, as the Township Board finds that the proposed alternative
of having no fence will not adequately protect the public health, safety, and welfare.” Id. at 10.
Fourth, the Board faulted Tuscola for not providing the turbine safety manual and thus
confirming that the turbines are equipped with an adequate braking device: “The Applicant has
withheld documentation . . . that would identify the braking device’s capability, citing the
Applicant’s nondisclosure agreement with GE.” Id. at 10–11.
Fifth, the Board found that Tuscola had not complied with the ordinance’s requirement that
the electrical lines stemming from the turbines be placed underground. Again, the Board concurred
with the Planning Commission’s refusal to waive that requirement: “The Township Board . . . does
not grant the requested waiver because it finds that the proposed aboveground lines would be
detrimental to the aesthetics of the Township and will not protect the public health, safety, and
welfare.” Id. at 10.
Finally, the Board noted that it had previously approved a moratorium on wind energy
projects in the Township and thus was precluded from approving the SLUP application even if it
had complied with the Zoning Ordinance.
The surviving issue centers on three emails sent by James Tussey in December 2016. On
December 16, 2016, Mr. Tussey emailed Robert Braem and stated that there was a change in the
Board’s communication procedure. Tussey Emails, ECF No. 62-21, Ex. 20. He explained that
when sending a group email to other Board members, a member should use a blind carbon copy.
This would avoid creating a quorum and an “unlawful meeting.” Id. Mr. Tussey then forwarded
the email to James Mantey. On December 26, 2016, Mr. Tussey emailed the entire Almer Board
in the form of a blind carbon copy. Tussey Email, ECF No. 62-22, Ex. 21. In the email, Mr. Tussey

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discussed certain outstanding questions regarding Tuscola’s SLUP application and again stated the
change in procedure. None of the email chains involve any replies by Board members or any
indication that a discussion chain resulted.
III.
Defendants have now filed a second motion for summary judgment. A motion for summary
judgment should be granted if the “movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party has the initial burden of identifying where to look in the record for evidence “which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must set out specific
facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). The Court must view the evidence and draw all reasonable inferences in favor of the nonmovant and determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251–52.
IV.
The Township seeks summary judgment on the issue of whether the Township violated the
OMA. Tuscola first raised this issue in Count Five of its complaint. It argued that the Township
violated OMA when “Board members continued engaging in concealed deliberations after they
were sworn into office” because the Board implemented an email policy whereby “the members
would send an email to themselves and blind carbon copy the remaining Board members.” Pl.
Resp. Br. at 24. In support of this assertion, Tuscola cited the December 2016 emails from Mr.
Tussey. Id. Tussey Emails, ECF No. 62, Exs. 20–21.

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1.
As stated above, the moving party has the initial burden of identifying where to look in the
record for evidence “which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Township has met this burden proving
that there is no genuine issue of material fact as to whether it violated OMA. To qualify as a
meeting of a public body under OMA, there must be: (1) a quorum (2) deliberation or rendering
of a decision (3) on a matter of public policy. Ryant v. Cleveland Twp., 608 N.W.2d 101, 103–104
(2000). The first and third requirements are met, but not the second requirement. Concerning the
first requirement, the December 26 email constituted a quorum because Mr. Tussey sent the email
to seven of the eight Board members. Tussey Email, ECF No. 62-22, Ex. 21. Concerning the
second requirement, the email was on a matter of public policy because it discussed Mr. Tussey’s
views on Tuscola’s pending SLUP application. Id.
These emails do not fulfill the second requirement of “deliberation or rendering of a
decision.” Ryant at 104. The court in Ryant, using Black’s Law Dictionary and Webster’s
Dictionary, interpreted this to mean
‘[T]he act of carefully considering issues and options before making a decision or
taking some action…as by analyzing, discussing, and weighing the evidence’ The
word ‘discussion’ is defined as the act of exchanging views on something; a debate.
Id. at 6. The court went on to hold that there must be some form of discussion or exchange of
views in order to find that deliberation occurred. Id. at 8. The defendants must have been more
than observers to the discussion.
Markel v. Mackley, 2016 Mich App. LEXIS 2004 appears to be the only case that has
addressed whether email communications can qualify as deliberations under the OMA. In Markel,
the defendants exchanged multiple emails amongst themselves. During the public meeting, they
voted along the same lines articulated in the emails. Id. at 12. The court held that defendants
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violated the OMA, despite the fact that defendants did not respond to all of the emails. Id. The
facts of this case differ however, from those in Markel because the Board members did not
exchange multiple emails as the defendants in Markel did. The Board members received Mr.
Tussey’s emails, but never responded to them. Tussey Emails, ECF No. 62, Exs. 20–21. Their
communications never rose to the level of a deliberation or a discussion. These differ from the
defendants in Markel who responded to at least some of the emails and had thus engaged in some
form of reciprocal communication or deliberation.
The facts are more akin to those of Mandich in which defendants met outside of a public
meeting, but did not violate the OMA because “no discussion took place, nor were any concerns
voiced.” Mandich v. Owendale Gagetown, 2010 Mich. App. LEXIS 2384. Similarly here, no
deliberation or discussion occurred. Without a response, there can be no deliberation by the Board
members. Without deliberation by the Board members, there can be no OMA violation.
Tuscola has not identified evidence showing “a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). Of the thousands of pages of emails in Tuscola’s possession,
Tuscola has only been able to identify these three emails as potential evidence of an OMA
violation. It has failed to provide evidence that any Board member responded to the emails in
question or engaged in any other form of deliberation outside of a public meeting. Tuscola has
presented the same three emails that it included in its original complaint. The court has already
held that:
[T]he emails identified by Tuscola do not clearly constitute violations of the OMA.
None of the identified email chains involve replies by other commissioners, and no
evidence has been presented to suggest that Board members later made decisions
at public meetings in reliance on information received by email.

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June 12, 2018, Op. & Order at 40, ECF No. 70. Tuscola has provided no depositions, affidavits,
or additional evidence supporting its claim. Thus, Tuscola has not established a genuine issue of
material fact.
2.
The remaining issue is whether “the identified emails do identify a procedure which
expressly contemplated communications which could violate the OMA.” Id. at 40. The Township
has provided affidavits from the Board members all affirming that they did not engage in quorum
communications outside of a public meeting. Def.’s Second Mt. for Summ. J., ECF No. 75-5, Ex.
D. Tuscola contends that “the Township’s self-serving affidavits carry little weight in
demonstrating that the OMA was not violated as a matter of law.” Pl.’s Resp. Br. To Def.’s Second
M. for Summ. J. at 5. To the contrary, these affidavits have evidentiary value, and they have not
been rebutted by Tuscola. Tuscola claims that the combination of the three emails, the Township’s
affidavits, and the Township denying Tuscola’s SLUP application provides the circumstantial
evidence necessary to demonstrate a material issue of fact. Id. at 4. Although this may have been
true prior to the current motion for summary judgment, Defendants have now come forward with
competent evidence that they engaged in no communications outside a public meeting.
Tuscola argues that Mr. Schriber’s affidavit is suspect because it differs from the affidavits
of the other five Board members. Id. at 5. Mr. Schriber’s affidavit differs in appearance and
language from the other affidavits, but its contents assert assurances similar to the other affidavits.
Def.’s Second Mt. for Summ. J., ECF No. 75-5, Ex. D. Mr. Schriber’s affidavit does not
specifically address email communications among Board members, but it does assert that he “did
not meet with a quorum of the Board outside of public meetings to deliberate or render any

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decisions.” Id. Tuscola has not responded by presenting any evidence contradicting this
representation.
Tuscola also argues that the Board’s denial of its SLUP application raises an issue of
material fact. Id. at 7. Tuscola concedes that the Court has already ruled that the Board’s
substantive decision to deny the SLUP application was valid, but that the Court has not yet ruled
on the validity of the Board’s procedure in making that decision. Id. at 13. However, in its prior
opinion, the Court noted that “no evidence has been presented to suggest that Board members later
made decisions at public meetings in reliance on information received by email.” June 12, 2018,
Op. & Order at 40, ECF No. 70. Tuscola argues that the Board relied on information communicated
by email by engaging in “round-the-horn” decision-making by forwarding emails to each other.
Pl. Resp. to Def.’s Second Mot. for Summ. J. at 6–7. The actions by the Board members differs
from those in Booth Newspapers in which the court found evidence of “round-the-horn” decisionsmaking. Booth Newspapers v. University of Mich. Bd. of Regents, 444 Mich. 211 (Mich. 1993). In
that case, plaintiffs provided depositions of Board members admitting that they engaged in subquorum communications outside of a public meeting. Id. at 219 n. 8. Here, there is no evidence
that “round-the-horn” decision-making occurred. One Board member sent three emails to other
Board members, but there is no evidence that they deliberated, made a decision, or replied to the
emails. At this point, Tuscola does not have to prove that this form of decision-making occurred,
but it at least must set out specific facts that show a genuine issue for trial. It has not done so.
3.
Tuscola also claims that the Township withheld a document in another case and that this
creates an issue of material fact as to whether the Township violated the OMA. Tuscola has failed
to make a plausible claim of spoliation, even under the Second Circuit standard cited by Tuscola.

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Pl. Resp. to Def.’s Second Mot. for Summ. J. at 11. (citing Byrnie v. Town of Cromwell, Bd. of
Educ., 243 F.3d 93, 107 (2d Cir. 2001) (holding that in “borderline cases, an inference of
spoliation, in combination with some (not insubstantial) evidence for the plaintiff’s cause of action,
can allow the plaintiff to survive summary judgment.”)). Tuscola has not furnished any substantial
evidence that the Township violated the OMA and thus cannot claim that the Township’s withheld
email in another case creates an inference of spoliation.
The Township claims that in Tuscola’s complaint, Tuscola only sought invalidation of the
Moratorium under the OMA, not invalidation of the Board’s decision on Tuscola’s SLUP
application. Pl. Second Mt. for Summ. J. at 4–8. The question will not be addressed because the
Township did not violate OMA.
V.
Accordingly, it is ORDERED that Defendants’ second motion for summary judgment,
ECF No. 75, is GRANTED.
It is further ORDERED that Count Five of Plaintiff Tuscola’s complaint, ECF No. 1, is
DISMISSED.

Dated: August 14, 2018

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 14, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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