D Pegasus Wind LLC v. Tuscola County ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEGASUS WIND, LLC, FOR PUBLICATION
February 24, 2022
Plaintiff-Appellant,
v No. 355715
Tuscola Circuit Court
TUSCOLA COUNTY, LC No. 20-031066-AA
Defendant-Appellee,
and
TUSCOLA AREA AIRPORT ZONING BOARD OF
APPEALS,
Intervenor-Appellee.
Before: RICK, P.J., and MURRAY and SHAPIRO, JJ.
MURRAY, J. (dissenting).
The airport zoning act, MCL 259.431 et seq., provides that a variance can be granted from
airport zoning regulations “if a literal application or enforcement of the regulations would result
in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the
public interest, but would do substantial justice and be in accordance with the spirit of the
regulations.” MCL 259.454(1). The Tuscola area airport zoning ordinance provides the same
criteria as the statute except that it adds a requirement that addresses “approach protection,” and
requires that the Federal Aeronautics Administration and the Michigan Aeronautics Commission
issue determinations of no hazards before a variance can be granted.
As the majority aptly describes, the airport zoning board of appeals (AZBA) heard
testimony over two days and issued an eight-page resolution denying the request for variances for
the eight wind turbines. The circuit court affirmed that decision, and in doing so it accurately
summarized the parties’ positions and evidence, but was somewhat short on explaining why it
affirmed. Nevertheless, the court set forth the correct legal principles governing its review,
accurately recounted the arguments and evidence, and reached a conclusion. For that reason, I
cannot conclude that the trial court applied incorrect legal principles or that it misapprehended or
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grossly misapplied the substantial evidence test to the AZBA’s factual findings. Hughes v Almena
Twp, 284 Mich App 50, 60; 771 NW2d 453 (2009) (quotation marks and citation omitted).
This is a close case. The majority sets out detailed explanations for why several of the
reasons articulated by the AZBA may not be solidly embedded in a factual foundation. However,
the record before the zoning board did contain testimony and evidence supporting many of its
conclusions, including that the wind turbines could cause dangers to pilots experiencing in-flight
emergencies, that the placement and height of the wind turbines would cause visual flight rule
(VFR) pilots to fly in a different airspace (Class E airspace, instead of Class G airspace), which
triggers different flight visibility requirements, which in turn can cause a “choke point” for those
pilots also seeking to circumnavigate around the wind turbines.1 Additionally, it appeared
undisputed that at least when flying under VFR and over the wind turbines, the primary radar
transmitted from air traffic control would be interfered with by the turbines. Again, Pegasus
disputes some—or most—of these findings, or the frequency with which some of these events may
occur, but there is no doubt that there was evidence setting forth these (and other) facts, and that
those facts supported the reasonable conclusion of the AZBA.2
Because the record contains evidence supporting these propositions, and the AZBA made
specific findings on the pertinent factors, it is difficult to reverse given the deferential standard of
review. After all, there only needs to be a “scintilla” of evidence supporting the findings, and that
level of evidence does not necessarily rise to even a preponderance. In re Payne, 444 Mich 679,
692-693; 514 NW2d 121 (1994).3 Judges must be careful to not substitute their judgment for that
of the administrative body that has the expertise to address these matters. Davenport v Grosse
Pointe Farms Zoning Bd, 210 Mich App 400, 405-406; 534 NW2d 143 (1995) (Courts “must give
due deference to the agency’s regulatory expertise and may not ‘invade the province of exclusive
administrative fact finding by displacing an agency’s choice between two reasonably differing
views.’ ”).
1
Evidence indicated that approximately 85% of the planes utilizing the airport were VFR flights.
2
Importantly, the airport zoning board has a lesser standard when it comes to concerns for hazards
than does the FAA. When considering hazards, the FAA focuses on a “substantial aeronautical
impact to air navigation,” and will not even consider hazards with respect to emergency situations,
because emergencies are unpredictable and isolated. The airport zoning board looks more broadly
to any “airport hazards,” including the potential hazards relating to emergencies. Thus, it would
not necessarily be inconsistent for circumstances to satisfy the FAA that no hazards exist while
also supporting the opposite finding by the airport zoning board.
3
Pegasus makes much of the fact that it presented expert testimony and evidence on many of the
relevant criteria, and that the AZBA improperly dismissed that evidence, instead relying in part on
public comments from several pilots who have flown into the airport. But one of the duties of the
AZBA is to determine the credibility of the witnesses, and the board was free to rely upon the
pilots who actually have flown into the airport over experts who had not. In re Payne, 444 Mich
at 693.
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Here, in light of the competing evidence and arguments, I would hold that the circuit court
did not err in affirming the decision of the airport zoning board, which was entitled to substantial
deference, that Pegasus did not establish practical difficulties or unnecessary hardship such that a
variance had to be granted. Based on the relative strength of each sides’ evidence and argument,
the AZBA could have decided either way with regard to the variances. Its choice between two
reasonable but differing views was properly deferred to by the circuit court, as it should be by this
Court. I would affirm.4
/s/ Christopher M. Murray
4
As the majority makes clear, that this same circuit court reversed the AZBA’s prior denial of a
variance for 33 other wind turbines, is of no moment. Given that the record regarding these
turbines contained additional testimony and/or public comments, and given that the AZBA offered
more detailed findings in support if its decision, the circuit court was dealing with a different case
this time around.
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