About 65 people have signed complaints to the Carroll County Quorum Court (QC) concerning an alleged violation of landowner rights under the Carroll County Comprehensive Land Use and Management Plan Code. The letters raise concerns about the proposed $300-million Nimbus Wind Facility proposed for hilly, rural areas south of Green Forest and west of Alpena that would involve construction of 43 wind turbines, 14 of them more than 600 feet tall.
Representatives for the developer of the proposed facility, Scout Clean Energy, said the project will help provide renewable energy to help offset the impacts of climate change while providing local landowners with $14 million in lease payments, and the county with $25 million in tax revenue, over the life of the project. Scout said 50 landowners have signed lease agreements for the project that would cover about 9,000 acres of land.
Some opponents of the project who live in the area are concerned their wells, caves, and springs could be disrupted by blasting necessary to construct the large concrete turbine bases in areas that might be solid rock. The letter to the QC states that page 20 of the policy states, “To the extent allowed by federal and state law, the Carroll County Quorum Court shall act immediately to initiate actions upon the complaint of one of more persons who alleged acts that threaten their lawful use of water rights or results in the introduction of contaminants into surface and ground waters.”
One of the first letters filed is from E. Richard Williams, a former Carroll County Judge, that states he is filing a complaint against the Nimbus Project and any activities that threaten his water rights and property rights near his resident property at 4104 CR 905, Alpena. Williams requests immediate action of the QC including an emergency ordinance that would prohibit any construction activities that could endanger the water wells and springs that supply his home and property, which includes spring-fed livestock ponds, with water essential for health, safety, welfare and the life of humans, domestic animals and wildlife.
Williams requests a minimum distance of three straight miles from his property lines for any blasting with explosives, hydraulic hammering or other means that causes vibration to surface or below surface terrain that could cause disruption of water supplies.
“Please be proactive rather than reactive, as there is a potential for irreparable and disastrous damage to water supplies,” Williams wrote in the letter.
At the request of Carroll County Prosecuting Attorney Tony Rogers, Deputy Prosecuting Attorney Steven Simmons wrote in a letter to the QC Sept. 22 that he has reviewed the land use complaints recently filed in the County Clerk’s office regarding blasting and other excavation work in the eastern portion of Carroll County associated with the proposed Scout/Nimbus windmill project.
“The complaints are one page replicated and filed and signed by various persons presumed to be Carroll County residents and refer to and are filed under ordinance 2011-37 which adopts and incorporates the Carroll County Comprehensive Land Use and Management Plan Code,” Simmons wrote in the opinion.
The complaints specifically refer to Item 9 at the bottom of page 20 stating that to the extent allowed by federal and state law, the Carroll County Quorum Court shall act to initiate actions upon the complaint of one or more affected persons who alleged acts that threaten their lawful use of water rights or result in the introduction of contaminants into surface or ground waters. Simmons said when taken out of context of the whole document this section appears to require that the QC take some action.
However, Simmons said the entire document reads like a policy statement regarding the interaction of Carroll County with state and federal agencies regarding land use of federal and state owned, or prospectively owned, property in Carroll County rather than a legislative act.
Simmons speculated that the impetus behind the code adopted in 2011 was fear of an extension into Carroll County of federal control over properties as occurred when creating the Buffalo National River project to the property owners along that body. While the code does direct the QC to take immediate action, Simmons’ opinion is that the actions of the QC are limited to an ordinance or a resolution as budgetary and personnel actions are clearly inapplicable to the issue.
Simmons gave an example stating that the QC does not have authority to require another constitutional office to take certain actions like directing the sheriff to investigate these claims but is limited to, in effect, setting policy.
Recently a proposed ordinance to limit the height of towers in the county failed to pass the QC. Simmons said the syntax of an ordinance regarding the Nimbus project would have to be carefully crafted for any hope of becoming policy.
“In any regard, the QC appears to be required to take some action and that action is likely limited to proffering and voting on an ordinance to remedy the complainants’ grievances, but that is wholly policy and not within our purview,” Simmons wrote. “And, of course, until we review the actual language of the proposed ordinance we cannot opine on the issue. Conversely, as this ordinance from its context appears as a policy statement and is likely geared towards interaction between the county and state and federal agencies, and the actor causing the perceived tort is neither a state or federal agency, I reasonably question whether ordinance is pertinent at all in the context of a private company conducting business on private property under contract with the landowner, and presumably acting according to and consistent with state and federal regulations which are assumed to be much more carefully tailored to the facts at issue as these issues are specifically within those agencies’ wheelhouse.”
Carroll County Clerk Connie T. Doss said the code is more geared towards the government’s overreach. She said if the government were planning some action in Carroll County like drilling on federal land, this ordinance and code would come into play.
“I think there is controversy about how this is being interpreted in relation to the wind turbines or any type of taller tower and how that could possibly affect the land and water supplies because of the karst topography of the area,” Doss said. “I know there are folks who don’t want the wind turbines. I am not an attorney. But in my reading of the document as a lay person, I’m not seeing the same thing as the wind turbine opponents.”
There are other possible remedies for the concerns, Simmons wrote in his opinion. “Trespass and nuisance causes of action may apply and consistent with those complaints the availability of preliminary injunctions provide the various complainants a judicial remedy, which appears to be a more appropriate forum,” Simmons said. “Due to the limited number of affected complainants and the localized nature of the issues involved, a class certification might be possible. Apparently, the complainants prefer to voice their concerns to the QC than pressing their concerns in the circuit or federal court where these issues would presumably garner a more definite and appropriate determination, albeit at a greater cost to the complainants.”
I certainly respect what Mr. Simmons and Ms. Doss are saying, but how can you expect the “little guys” to gain protection for their land against someone with the vast resources of Scout? I’m so sorry to see this opinion, and I still think at least a moratorium is in order until certain questions that have gone unanswered are, indeed, answered.