COMMERCIAL-NEWS | ROBERT TOMLINSON
Pictured is the Fabius Township Hall Friday, June 16. A lawsuit was filed against the township earlier this month by two landowners challenging a solar ordinance passed earlier this year.
By Robert Tomlinson
News Director
FABIUS TWP. — A lawsuit was filed against Fabius Township in St. Joseph County 45th Circuit Court on June 5 by two Fabius Township landowners challenging a solar energy ordinance passed earlier this year.
Jean and Terryl Rockwell, who own several pieces of farmland in the township, accused the township of exclusionary zoning and tortious interference with a contract related to the ordinance’s passage. They are seeking damages and asking the court to order the township to amend the solar ordinance to make it “feasible and practical” to develop a large-scale solar project in the township.
The ordinance in question was passed by the Fabius Township Board on March 8, and went into effect on March 27. It allows for large-scale solar energy systems, namely California-based Orion Renewable Energy, to develop and operate in the township, but which can only be located within an overlay district consisting of 880 yards on either side of M-60 throughout the township, measured from the right-of-way. Accessory use small-scale solar energy systems would also be allowed, and would follow the township’s zoning ordinance as it relates to accessory uses.
Its passage followed many years of intense discussion and debate on the topic, both by the township and its residents, as well as a lengthy process involving a revision of the township’s Master Plan and a moratorium on any activity relating to a proposed solar energy ordinance that was put in place because of it back in 2021.
Officials from Fabius Township and the Fabius Township Planning Commission, as well as township attorney Roxanne Seeber, did not respond to a request for comment on this story prior to deadline.
According to the lawsuit, the Rockwells entered into a 34-year lease agreement with Orion back in October 2019, which covered over 787 acres of their land off of M-60, Harder Road, Youngman Road, Krull Road, and Gleason Road, for the purpose of constructing and operating a large-scale solar energy facility on 657 acres of that property. That land, the lawsuit says, was part of over 2,000 acres of land the company had under lease agreement with other landowners in the township as of April of 2021.
On Jan. 8, 2020, according to the lawsuit, Fabius Township adopted Ordinance 163, which, among other things, permitted accessory use solar energy systems in R-2 medium density and agricultural zoning districts, as well as permitted primary-use solar energy systems in agricultural zoning districts.
After it was enacted, according to the lawsuit, on April 18, 2021 Orion submitted an application to establish its solar project in the township, seeking to construct it on the property leased from township landowners. However, the lawsuit states, the township “refused” to process the application and returned the application back, and in June, the township placed a temporary moratorium on the development of solar energy systems in the township, which they say “nullified” the original solar ordinance from 2020.
At that same June meeting, as previously reported by the Commercial-News at the time, it was revealed that the township had been operating under an invalid master plan since 2016 because of an improper adoption process, which led to the moratorium being put in place and the township beginning a process to update the master plan. This specific fact was not presented in the lawsuit; however, the lawsuit claims there is “no legal requirement under Michigan law that requires a municipality adopt an updated Master Plan before permitting solar farming in one or more of its zoning districts.”
After more than a year of work, the updated master plan was put in place in July of 2022, and following that, the first draft of a new solar ordinance was published by the township. The lawsuit claims the initial draft versions “overly restricted the potential for developing a solar energy system within the Township,” objecting to the “restrictive” requirements at almost every Planning Commission meeting in 2021 and 2022.
According to the lawsuit, Orion’s concerns regarding the new ordinance had to do with solar facility setback requirements, the lack of a setback waiver, time requirements related to special exception use approval, which included that a permit was only valid for one year, and other “restrictive site plan requirements.” Their concerns were expressed at Planning Commission meetings by both counsel for Orion and the Rockwells from November 2022 onward, saying in the lawsuit the concerns outlined in the letter “were not a ‘wish list’ of revisions which Orion hoped were made, but were revisions that Orion could not, in fact, live without and still feasibly operate a Solar Project in the Township.”
“Counsel for Plaintiffs warned the Planning Commission that unless the Township immediately began to work with Orion and its counsel to properly amend proposed solar energy amendments to address Orion’s concerns, that neither Orion nor any other solar energy company would ever be able to feasibly develop a solar energy system within the Township,” the lawsuit states.
The lawsuit claims the action by the township to adopt the ordinance has caused the Rockwells and other township land owners “tens of millions of dollars” in damages, and claims that no solar energy company will “ever be able to construct or operate a large scale solar energy system” in the township due to the “restrictive provisions.”
“The township has essentially prohibited solar farming in the township, not by failing to enact amendments to the zoning ordinance which govern the operation of solar energy systems, but because those same amendments completely ignore economic and financial reality and are too restrictive,” the lawsuit states.
The lawsuit alleges the township’s solar ordinance is an “exclusionary zoning regulation,” and that they have an “unduly harsh impact upon the Plaintiff’s use of their property.” It also alleges that the township’s actions are “an intentional interference” with Orion’s lease contracts with landowners.
No hearing dates for the lawsuit have been set as of press time.
The lawsuit was filed by Jeff Swenarton and Jordan Held of Kreis, Enderle, Hudgins and Borsos P.C. of Kalamazoo, who are representing the Rockwells.
Robert Tomlinson can be reached at 279-7488 or robert@threeriversnews.com.
This has happened across the state by anti green energy groups with unknown financial backing. It’s a well planned strategy forcing ignorant townships to comply to their threats.
The township is not obligated to develop an ordinance specific to an individual or industry. They are offering a zone for solar development and it is the solar developers job to utilize the land if they wish to do so.