By Greg Chandler
Zeeland Record
Zeeland Township is challenging the constitutionality of Public Act 233, the Michigan law that regulates clean and renewable energy projects in the state, in an attempt to block the Silver Maple solar project.
The township on July 7 filed a lawsuit in Ottawa County Circuit Court against Silver Maple PV, LLC, RWE Americas Services, LLC and RWE Solar Development, LLC. The suit asks the court to declare PA 233 unconstitutional under Article 7, Section 29 of the Michigan constitution of 1963, saying the law “preempts local control over the regulation of wind, solar and energy storage facilities by infringing on certain rights that the Michigan Constitution reserves to local governments.”
“For generations, Michigan has recognized that local governments are best equipped to make decisions about matters that directly affect their communities,” Township Supervisor Kerri Bosma said. “Public Act 233 departs from that constitutional tradition by transferring local decision-making authority to the state. Through this lawsuit, the township seeks to uphold the constitutional principle of local control.”
Specifically at issue is whether Silver Maple PV should be allowed to use the township’s highways, streets, alleys or public places to transport wires, poles, or other equipment needed to build the project. The suit argues the developer needs a franchise approval from the township before proceeding with installing project infrastructure.
Article 7, Section 29 of the Michigan constitution states: “No person, partnership, association or corporation, public or private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village; or to transact local business therein without first obtaining a franchise from the township, city or village.”
“The Defendants’ development, construction, ownership and/or operation of the Facility constitutes the operation of a public utility in the Township under (Article 7, Section 29),” attorney Patrick Sweeney of the Bloom Sluggett law firm, representing the township, wrote in the suit. “The Facility as currently designed requires the use of the Township's highways, streets, alleys or public places for wires, poles, pipes, tracks, conduits or other utility facilities.”
Attorneys for the township twice sent letters to Silver Maple and RWE representatives asking if the developer was planning to seek the township’s consent to use its highways, streets, alleys or other public places in developing the project, and whether it planned to seek approval of a franchise from the township, according to court records.
In one response to the township’s letters, attorney John Weiss of the Dickinson Wright law firm representing Silver Maple and RWE, wrote that “Silver Maple is not ‘operating a public utility’” under Article 7, Section 29.
“While there are some contexts under Michigan law where Silver Maple and similar entities may be considered a public or private ‘utility,’ those situations are fact-specific and not applicable here,” Weiss wrote.
The suit was filed shortly after RWE’s application for its proposed 200-megawatt Silver Maple project in Zeeland and Jamestown townships was suspended, in light of a ruling earlier this spring by the Michigan Court of Appeals that allows counties to join townships as intervening governmental units objecting to the project.
The appellate judges ruled May 7 that the Michigan Public Service Commission improperly interpreted PA 233 when it issued an order in October 2024 saying that only local governmental units with zoning jurisdiction could qualify as affected local units for purposes of intervening in opposition to any wind, solar or battery energy storage project. They ruled that all governmental units where an energy facility is proposed, including counties, may seek status as an intervenor. That ruling would allow Ottawa County to weigh in on the Silver Maple case.
RWE filed an application with the MPSC in April of this year, seeking approval of Silver Maple. The company has secured leases on 52 parcels totaling 1,914 acres of farmland, about 60 percent of which is in Zeeland Township, for the project. Its application says the project would disturb 1,431 acres of land and be built on 1,127 acres of fenced-in property.
PA 233 was passed by the Legislature in November 2023 and signed into law by Gov. Gretchen Whitmer. It allows developers to seek approval of large-scale clean and renewable energy projects through the state if a local municipality has not passed an ordinance that corresponds with the state law.
The Zeeland Township Planning Commission earlier this year discussed the possibility of creating a workable incompatible ordinance that would place some stricter standards than PA 233, but would still be acceptable to a developer.
However, after RWE submitted its application for Silver Maple to the MPSC on April 3, commissioners switched their strategy and began discussions on an unworkable incompatible ordinance.
The Township Board later that night directed Bloom Sluggett attorney David Eberle to work with Township Manager Josh Eggleston to draft a resolution stating the board’s support for the lawsuit and for local control.
“We are fully engaged and supportive (of this action),” Clerk Brian VanDussen said. “There’s a lot of things we can’t say, pending litigation, but this will show the public that we stand united on this front.”
The lawsuit has been assigned to Circuit Judge Jon Hulsing. No hearing dates have been scheduled yet, according to court records.
Zeeland Record
Zeeland Township is challenging the constitutionality of Public Act 233, the Michigan law that regulates clean and renewable energy projects in the state, in an attempt to block the Silver Maple solar project.
The township on July 7 filed a lawsuit in Ottawa County Circuit Court against Silver Maple PV, LLC, RWE Americas Services, LLC and RWE Solar Development, LLC. The suit asks the court to declare PA 233 unconstitutional under Article 7, Section 29 of the Michigan constitution of 1963, saying the law “preempts local control over the regulation of wind, solar and energy storage facilities by infringing on certain rights that the Michigan Constitution reserves to local governments.”
“For generations, Michigan has recognized that local governments are best equipped to make decisions about matters that directly affect their communities,” Township Supervisor Kerri Bosma said. “Public Act 233 departs from that constitutional tradition by transferring local decision-making authority to the state. Through this lawsuit, the township seeks to uphold the constitutional principle of local control.”
Specifically at issue is whether Silver Maple PV should be allowed to use the township’s highways, streets, alleys or public places to transport wires, poles, or other equipment needed to build the project. The suit argues the developer needs a franchise approval from the township before proceeding with installing project infrastructure.
Article 7, Section 29 of the Michigan constitution states: “No person, partnership, association or corporation, public or private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village; or to transact local business therein without first obtaining a franchise from the township, city or village.”
“The Defendants’ development, construction, ownership and/or operation of the Facility constitutes the operation of a public utility in the Township under (Article 7, Section 29),” attorney Patrick Sweeney of the Bloom Sluggett law firm, representing the township, wrote in the suit. “The Facility as currently designed requires the use of the Township's highways, streets, alleys or public places for wires, poles, pipes, tracks, conduits or other utility facilities.”
Attorneys for the township twice sent letters to Silver Maple and RWE representatives asking if the developer was planning to seek the township’s consent to use its highways, streets, alleys or other public places in developing the project, and whether it planned to seek approval of a franchise from the township, according to court records.
In one response to the township’s letters, attorney John Weiss of the Dickinson Wright law firm representing Silver Maple and RWE, wrote that “Silver Maple is not ‘operating a public utility’” under Article 7, Section 29.
“While there are some contexts under Michigan law where Silver Maple and similar entities may be considered a public or private ‘utility,’ those situations are fact-specific and not applicable here,” Weiss wrote.
The suit was filed shortly after RWE’s application for its proposed 200-megawatt Silver Maple project in Zeeland and Jamestown townships was suspended, in light of a ruling earlier this spring by the Michigan Court of Appeals that allows counties to join townships as intervening governmental units objecting to the project.
The appellate judges ruled May 7 that the Michigan Public Service Commission improperly interpreted PA 233 when it issued an order in October 2024 saying that only local governmental units with zoning jurisdiction could qualify as affected local units for purposes of intervening in opposition to any wind, solar or battery energy storage project. They ruled that all governmental units where an energy facility is proposed, including counties, may seek status as an intervenor. That ruling would allow Ottawa County to weigh in on the Silver Maple case.
RWE filed an application with the MPSC in April of this year, seeking approval of Silver Maple. The company has secured leases on 52 parcels totaling 1,914 acres of farmland, about 60 percent of which is in Zeeland Township, for the project. Its application says the project would disturb 1,431 acres of land and be built on 1,127 acres of fenced-in property.
PA 233 was passed by the Legislature in November 2023 and signed into law by Gov. Gretchen Whitmer. It allows developers to seek approval of large-scale clean and renewable energy projects through the state if a local municipality has not passed an ordinance that corresponds with the state law.
The Zeeland Township Planning Commission earlier this year discussed the possibility of creating a workable incompatible ordinance that would place some stricter standards than PA 233, but would still be acceptable to a developer.
However, after RWE submitted its application for Silver Maple to the MPSC on April 3, commissioners switched their strategy and began discussions on an unworkable incompatible ordinance.
The Township Board later that night directed Bloom Sluggett attorney David Eberle to work with Township Manager Josh Eggleston to draft a resolution stating the board’s support for the lawsuit and for local control.
“We are fully engaged and supportive (of this action),” Clerk Brian VanDussen said. “There’s a lot of things we can’t say, pending litigation, but this will show the public that we stand united on this front.”
The lawsuit has been assigned to Circuit Judge Jon Hulsing. No hearing dates have been scheduled yet, according to court records.
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