Summary
In Pegasus Wind, LLC v Tuscola County, 340 Mich.App. 715, 721; 988 N.W.2d 17 (2022), this Court considered whether an appeal as of right was appropriate from a circuit-court "order affirming the decision of intervenor, the Tuscola Area Airport Zoning Board of Appeals (the AZBA), to deny eight variance applications for additional wind turbines."
Summary of this case from Dimercurio v. City of Royal OakOpinion
No. 355715
02-24-2022
PEGASUS WIND, LLC, Plaintiff-Appellant, v. TUSCOLA COUNTY, Defendant-Appellee, and Tuscola Area Airport Zoning Board of Appeals, Intervenor-Appellee.
Warner Norcross + Judd LLP (by Jonathan E. Lauderbach, Midland, Daniel P. Ettinger, and Ashley G. Chrysler, Grand Rapids) for Pegasus Wind, LLC. Braun Kendrick Finkbeiner PLC, Saginaw (by Jamie Hecht Nisidis and Clayton J. Johnson ) for Tuscola County. Foster, Swift, Collins & Smith, PC, Grand Rapids (by Michael D. Homier and Laura J. Genovich ) for the Tuscola Area Airport Zoning Board of Appeals.
Warner Norcross + Judd LLP (by Jonathan E. Lauderbach, Midland, Daniel P. Ettinger, and Ashley G. Chrysler, Grand Rapids) for Pegasus Wind, LLC.
Braun Kendrick Finkbeiner PLC, Saginaw (by Jamie Hecht Nisidis and Clayton J. Johnson ) for Tuscola County.
Foster, Swift, Collins & Smith, PC, Grand Rapids (by Michael D. Homier and Laura J. Genovich ) for the Tuscola Area Airport Zoning Board of Appeals.
Before: Rick, P.J., and Murray and Shapiro, JJ.
Rick, P.J. In this zoning dispute, plaintiff, Pegasus Wind, LLC (Pegasus), appeals as of right the Tuscola Circuit Court's order affirming the decision of intervenor, the Tuscola Area Airport Zoning Board of Appeals (the AZBA), to deny eight variance applications for additional wind turbines. For the reasons stated in this opinion, we reverse in part and remand for proceedings that are consistent with this opinion.
In deciding this appeal, we reject Tuscola County's argument that this Court lacks jurisdiction because the circuit court judgment is not appealable as of right under MCR 7.203(A)(1)(a). In Ansell v. Delta Co. Planning Comm. , 332 Mich.App. 451, 453 n 1, 957 N.W.2d 47 (2020), a recently published decision, this Court held that it does have jurisdiction over such an appeal. Therefore, this argument has no merit. See id. (holding that this Court had jurisdiction to hear the issue on appeal because the "case involved a decision by [the] County Planning Commission to grant applications for conditional-use permits for construction of windmills. Accordingly, the appeal in the circuit court was not taken from a court or tribunal because the planning commission is not a court and did not act as a tribunal in issuing the permits in question").
I. BACKGROUND
This controversy has an extensive procedural and factual history involving local regulatory authorities’ decisions on a wind energy system being built by Pegasus. Pegasus is constructing a commercial wind energy system in Tuscola County. Some of the planned wind turbines are within the Tuscola Area Airport zoning area. Airport Authority owns the airport and is responsible for maintenance and operation of the landing, navigational, and building facilities. See MCL 259.622. The AZBA is responsible for deciding whether to grant variances from airport zoning regulations. See MCL 259.454. On June 11, 2019, Pegasus filed applications for variances with the AZBA for 33 proposed wind turbines near the Tuscola Area Airport. The AZBA denied the variance applications. Pegasus appealed the AZBA's denial of the variances in the circuit court. In November 2019, the circuit court reversed the AZBA's decision.
This Court denied the AZBA's application for leave to appeal this order "for lack of merit in the grounds presented." Pegasus Wind, LLC v. Tuscola Area Airport Zoning Bd. of Appeals , unpublished order of the Court of Appeals, entered February 26, 2020 (Docket No. 351915). Our Supreme Court also denied leave to appeal, Pegasus Wind, LLC v. Tuscola Area Airport Zoning Bd. of Appeals , 506 Mich. 941, 949 N.W.2d 696 (2020), and denied a subsequent motion for reconsideration, Pegasus Wind, LLC v. Tuscola Area Airport Zoning Bd. of Appeals , 507 Mich. 871, 953 N.W.2d 396 (2021).
Relevant to this appeal, on October 22, 2019, Pegasus submitted eight additional variance applications for the construction of eight additional wind turbines. Along with these applications, Pegasus submitted the Federal Aviation Administration's (the FAA) determinations of no hazard (DNH) for the proposed wind turbines and a letter from the Michigan Department of Transportation (MDOT) confirming that MDOT "concurs with the FAA's determination of no hazard" and that MDOT tall-structure permits would be issued for the turbines after the variances were granted. Public hearings regarding the variance applications were held on January 13 and 17, 2020. The AZBA denied Pegasus's request for the eight variances on January 17, 2020.
Pegasus appealed the AZBA's denial in the circuit court. In its September 11, 2020 order, the circuit court held that the AZBA's denial was supported by substantial, competent, and material evidence that Pegasus had failed to establish three of the four criteria necessary to permit the AZBA to grant a variance. More specifically, the trial court concluded that Pegasus failed to establish that (1) there is a practical difficulty in the literal enforcement of the ordinance, (2) the variances would not be against the public interest and "approach protection," and (3) granting the variances would be in accordance with the spirit of the ordinance. However, the court reversed the AZBA's determination that granting the variances would not do substantial justice, noting that the record "does not contain evidence that the granting of variances would not do substantial justice" and that "[t]here will be no adverse impact to the airport ...." The circuit court further concluded that the AZBA's denial of the variances on the basis that the grant of such variances would not be "in accordance with the spirit of the Ordinance" was also supported by substantial evidence.
Pegasus moved for reconsideration, arguing, in part, that the circuit court's determination that there was evidence supporting the substantial-justice factor, but not the remaining three factors, was internally inconsistent. The circuit court denied the motion.
This appeal followed.
II. STANDARD OF REVIEW
"In general, we review de novo a circuit court's decision in an appeal from a [zoning board of appeals (ZBA)] decision because the interpretation of the pertinent law and its application to the facts at hand present questions of law." Hughes v. Almena Twp , 284 Mich.App. 50, 60, 771 N.W.2d 453 (2009) (citations omitted). However, this Court gives "great deference to the trial court and zoning board's findings." Norman Corp. v. East Tawas , 263 Mich.App. 194, 198, 687 N.W.2d 861 (2004). The underlying interpretation and application of an ordinance is also reviewed de novo. Detroit v. Detroit Bd. of Zoning Appeals , 326 Mich.App. 248, 254, 926 N.W.2d 311 (2018). As stated in Risko v. Grand Haven Charter Twp Zoning Bd. of Appeals , 284 Mich.App. 453, 458, 773 N.W.2d 730 (2009) :
When reviewing a zoning board's denial of a variance this Court must review the record and the board's decision to determine whether it (1) comports with the law, (2) was the product of proper procedure, (3) was supported by competent, material, and substantial evidence on the record, and (4) was a proper exercise of reasonable discretion. [Cleaned up.]
"This Court reviews the circuit court's determination regarding ZBA findings to determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the ZBA's factual findings." Hughes , 284 Mich.App. at 60, 771 N.W.2d 453 (quotation marks, citation, and brackets omitted). The substantial-evidence-test standard "is the same as the familiar ‘clearly erroneous’ standard. A finding is clearly erroneous if the reviewing court, on the whole record, is left with the definite and firm conviction that a mistake has been made." Id. (citation omitted). "The substantial evidence test also encompasses a quantitative component." Id. at 61, 771 N.W.2d 453. " ‘Substantial evidence’ is evidence that a reasonable person would accept as sufficient to support a conclusion. While this requires more than a scintilla of evidence, it may be substantially less than a preponderance." Id. (quotation marks and citation omitted).
III. ANALYSIS
An airport zoning board of appeals must grant a variance if the applicant establishes the statutory factors for a variance delineated in the Michigan Airport Zoning Act, MCL 259.431 et seq. The Tuscola Area Airport Zoning Ordinance (the Tuscola Ordinance) also identifies the factors that the AZBA must apply when considering variance applications. Tuscola Ordinance, § 5.2(G)(2). The Airport Zoning Act provides:
In contrast to the Airport Zoning Act, the Tuscola Ordinance mandates that the AZBA grant a variance if a petitioner establishes any one of the factors, as long as the FAA and the Michigan Aeronautics Commission has issued permits or determinations of no hazard. The Tuscola Ordinance also adds one alternative subfactor, regarding flight-approach protection, which reads, in pertinent part:
In acting upon applications for variance, a variance can be granted on the condition that
The Federal Aeronautics Administration (FAA) and the Michigan Aeronautics Commission (MAC) has issued a permit or determination of non-hazard ....
* * *
In addition, variances shall be allowed for any of the following reasons:
(a) A literal application or enforcement of the regulation would result in practical difficulty or unnecessary hardship.
(b) Relief granted would not be contrary to the public interest and approach protection .
(c) Relief granted would do substantial justice.
(d) Relief granted would be in accordance with the spirit of the regulations of this Ordinance.
... Nothing in this section shall be construed to permit a use that would conflict with any general zoning ordinance or regulation of any political subdivision applicable to the same area. [Tuscola Ordinance, § 5.2(G)(2) (emphasis added).]
A person desiring to erect a structure, or increase the height of a structure, or permit the growth of a tree, or otherwise use property in violation of the airport zoning regulations adopted under this act, may apply to the board of appeals, for a variance from the zoning regulations in
question. The board of appeals shall allow a variance 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. However, a variance may be granted subject to any reasonable condition or condition subsequent that the board of appeals considers necessary to effectuate the purposes of this act. A variance shall not conflict with a general zoning ordinance or regulation of a political subdivision. However, a variance may conflict with a zoning ordinance or regulation adopted exclusively for airport zoning purposes. [ MCL 259.454(1) (emphasis added).]
Therefore, under the controlling statute, an airport zoning board of appeals is required to grant a variance if the applicant fulfills all four factors: (1) "a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship," (2) "the relief granted would not be contrary to the public interest," (3) the relief granted "would do substantial justice," and (4) the relief granted would be "in accordance with the spirit of the regulations." MCL 259.454(1).
The Airport Zoning Act and the Tuscola Ordinance do not distinguish "nonuse variances" and "use variances." However, the Michigan Zoning Enabling Act, MCL 125.3101 et seq. , provides some clarity. "Under the in pari materia doctrine, statutes that relate to the same subject or that share a common purpose should, if possible, be read together to create a harmonious body of law." Hegadorn v. Dep't of Human Servs. Dir. , 503 Mich. 231, 264, 931 N.W.2d 571 (2019) (quotation marks, citation, and brackets omitted). The Michigan Zoning Enabling Act provides the procedure for a zoning board of appeals, which is analogous to the AZBA under the Airport Zoning Act. See MCL 125.3604. MCL 125.3604(8) provides, "The zoning board of appeals of all local units of government shall have the authority to grant nonuse variances relating to the construction, structural changes, or alteration of buildings or structures related to dimensional requirements of the zoning ordinance or to any other nonuse-related standard in the ordinance." (Emphasis added.) This Court has also recognized that "[u]se variances permit a use of the land which the zoning ordinance otherwise proscribes," while "nonuse variances" are those variances concerned with the area, height, and setback requirements of structures. Nat'l Boatland, Inc. v. Farmington Hills Zoning Bd. of Appeals , 146 Mich.App. 380, 387, 380 N.W.2d 472 (1985). Additionally, MCL 125.3604(7) indicates that the existence of "practical difficulties" is the applicable standard for nonuse variances and "unnecessary hardship" applies to use variances. Considering these principles, Pegasus appears to have sought nonuse variances for the construction of the eight wind turbines.
"Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1), they nevertheless can be considered persuasive authority." In re Stillwell Trust , 299 Mich.App. 289, 299 n. 1, 829 N.W.2d 353 (2013).
A. SIMILAR OUTCOMES
Pegasus, although recognizing that the circuit court had an obligation to review the whole record, argues that the outcome of this case should be identical to its previous appeal concerning the circuit court's reversal of the AZBA's denial of the variance requests for 33 wind turbines because the record and arguments are identical. We disagree.
According to our Supreme Court, the Michigan Constitution requires "a thorough judicial review of [an] administrative decision ...." In re Payne , 444 Mich. 679, 693, 514 N.W.2d 121 (1994) (quotation marks and citation omitted). Review of an administrative decision
considers the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency's choice between two reasonably differing views. [ Id. (quotation marks and citation omitted).]
Regardless of the similarity to the record in the previous appeal, the record in the instant case is different. The eight turbines in this case were in different locations. Because Pegasus already had variances approved for 33 turbines at the time it sought these variances, the AZBA's decision was made in an entirely different context than its previous denial. Under these circumstances, neither the AZBA's decision nor the circuit court's determination on appeal were prescribed by the previous appeal. Further, Pegasus failed to provide any legal citation to support its contention that the outcome of the previous appeal required the AZBA to authorize the variances or the circuit court to reverse the denials in this case. "When a party merely announces a position and provides no authority to support it," this Court may consider the issue waived. Nat'l Waterworks, Inc. v. Int'l Fidelity & Surety, Ltd. , 275 Mich.App. 256, 265, 739 N.W.2d 121 (2007). The circuit court's reversal in the previous appeal did not require that it also reverse the AZBA's denial for the eight turbines in the instant case. Therefore, the trial court did not err in this regard.
B. PRACTICAL DIFFICULTY
As indicated, under the Airport Zoning Act, the AZBA is required to grant a variance "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) ; see Tuscola Ordinance, § 5.2(G)(2). Accordingly, if an applicant makes the proper showing, granting of the variance is not discretionary.
The term "practical difficulty" is not defined in the Airport Zoning Act or in the Tuscola Ordinance, and there is no Michigan caselaw that interprets the practical-difficulty factor for purposes of airport zoning. However, a similar standard was required for use and nonuse variances under MCL 125.585, repealed by 2006 PA 110, which required a showing of " ‘practical difficulties or unnecessary hardships in carrying out the strict letter of the ordinance.’ " See Norman Corp. , 263 Mich.App. at 202, 687 N.W.2d 861. "In general, ‘or’ is a disjunctive term, indicating a choice between two alternatives ..." Paris Meadows, LLC v. Kentwood , 287 Mich.App. 136, 148, 783 N.W.2d 133 (2010). Furthermore, under the Zoning Enabling Act, only a showing of practical difficulty, and not unnecessary hardship, is required to justify the grant of a nonuse variance. MCL 125.3604(7) ; see Heritage Hill Ass'n, Inc. v. Grand Rapids , 48 Mich.App. 765, 769, 211 N.W.2d 77 (1973) (holding that only a showing of practical difficulty, and not unnecessary hardship, is required to justify the grant of a nonuse variance).
Many of the general zoning cases cited by the circuit court and by the parties on appeal predate the 2006 enactment of the Michigan Zoning Enabling Act. The cases that predate the enactment did not typically differentiate between "practical difficulty" and "unnecessary hardship" because the prior zoning law allowed variances for both reasons. See MCL 125.585, repealed by 2006 PA 110. Since 2006, the term "practical difficulty" applies only to nonuse variances, and the term "unnecessary hardship" applies only to use variances. MCL 125.3604(7). Consequently, the general zoning cases that interpret the former zoning law are not binding but are persuasive regarding the "practical difficulty" factor.
This Court has held that in determining whether a practical difficulty exists, we consider "whether the denial deprives an owner of the use of the property, compliance would be unnecessarily burdensome, or granting a variance would do substantial justice to the owner." Norman Corp. , 263 Mich.App. at 203, 687 N.W.2d 861. The use of the term "or" indicates that Pegasus need only meet one of these standards. See Paris Meadows, LLC , 287 Mich.App. at 148, 783 N.W.2d 133. However, practical difficulties cannot be self-created. Norman Corp. , 263 Mich.App. at 202, 687 N.W.2d 861. Therefore, the issue is whether the denial of the variance deprived Pegasus of the use of the property or whether compliance would be unnecessarily burdensome. In addition, even if Pegasus has shown entitlement under either of these standards, this Court must consider whether the practical difficulty was self-imposed.
In its determination that Pegasus had not shown that a literal interpretation or enforcement of the height requirements could result in a practical difficulty for Pegasus with respect to the eight proposed turbines, the AZBA stated:
In particular, Pegasus Wind has not provided sufficient evidence to establish that the wind project is not financially viable if shorter wind turbines are used or if fewer
wind turbines are used and has not established the unavailability of shorter turbines with anything more than conclusory statements. Pegasus Wind has also failed to provide sufficient evidence that potential, alternate locations are not viable options for these eight (8) proposed turbines. Pegasus Wind has also failed to show that denial of the variances would deprive it of use of the property. The property at issue has other uses, particularly agricultural issues.
Any practical difficulty to Pegasus Wind from its claimed inability to meet its obligations under a Power Purchase Agreement without the variances and/or based on expenditures made by Pegasus Wind on wind turbine construction is self-created and not a proper basis to grant a variance.
Finally, the practical difficulty on which Pegasus Wind bases its application for variances is not inherent in the land and not the result of a unique characteristic of the land.
The circuit court concluded that the AZBA's denial of the variances based on Pegasus's failure to establish that there was a practical difficulty in the literal enforcement of the ordinance was supported by competent, material, and substantial evidence. Because there appears to be confusion between the requirements of practical difficulty and unnecessary hardship, we use this case as an opportunity to distinguish those requirements in the application of variances.
1. INHERENT IN THE LAND
Considering the third basis first, the AZBA found that the practical difficulty on which Pegasus relied was neither inherent in the land nor the result of a unique characteristic of the land. However, the requirement of showing unique circumstances inherent in the property is not an element of practical difficulty but of unnecessary hardship. See, e.g., Detroit v. Detroit Bd. of Zoning Appeals , 326 Mich.App. 248, 261, 926 N.W.2d 311 (2018) (setting forth the requirements for proving a hardship); Norman Corp. , 263 Mich.App. at 203, 687 N.W.2d 861 ("Alternatively, this Court has granted variances where an unnecessary hardship existed that was unique to the property."). However, because Pegasus was seeking a nonuse variance, it was only required to establish a practical difficulty. See MCL 125.3604(7) ; Norman Corp. , 263 Mich.App. at 203, 687 N.W.2d 861 ; Heritage Hill , 48 Mich.App. at 769, 211 N.W.2d 77.
The county asserts that "practical difficulty" relates to problems inherent in the property itself, citing a footnote in Davenport v. Grosse Pointe Farms Bd. of Zoning Appeals , 210 Mich.App. 400, 403 n 1, 534 N.W.2d 143 (1995), which provides:
Defendant's concession that a "practical difficulty" exists under plaintiffs’ circumstances is limited solely to these proceedings. Usually, the concept of "practical difficulty" in zoning law relates to problems inherent in the property itself, not to the personal conditions of its occupants. See Crawford, Michigan Zoning and Planning (3d ed.), § 6.03, pp. 164-165.[ ]
We note that Davenport predates the 2006 enactment of the Michigan Zoning Enabling Act.
The county then argues that "the practical difficulties asserted by Pegasus are all personal to Pegasus and its desire to use the properties for a unique purpose," not any unique aspect of the properties themselves.
In affirming the AZBA's determination, the circuit court adopted this position:
It is Appellees[’] contention that Pegasus’ arguments relate solely to their financial bottom line, when Pegasus argued that using shorter turbines would be "less efficient"
and requiring Pegasus to "site more turbines" would be "at the very least, unnecessarily burdensome, and at the most, detrimental to the Project's overall economic vitality." [The] AZBA states that these arguments are not related to any practical difficulty with the property.
* * *
Appellees insist that Pegasus does not identify anything unique about the parcels for which the variances are being requested....
The Appellees cite to case law which states[,] "The concept of ‘practical difficulty’ in zoning law relates to problems inherent in the property itself, not to the personal conditions of its occupants." "The hardship must be unique or peculiar to the property for which the variance is sought." [Citations omitted.]
Accordingly, the circuit court expressly adopted the position found in the Davenport footnote. However, in doing so, the court confused practical difficulty with unnecessary hardship. Indeed, this is even more clear from its second quotation which expressly notes that it is hardship , not practical difficulty, that must be unique to the property for which it is sought. Further, although an unpublished opinion of this Court has indicated that this is a consideration when analyzing practical difficulty, see, e.g., Jacques v. Dep't of Environmental Quality , unpublished per curiam opinion of the Court of Appeals, issued August 23, 2007 (Docket No. 268016), p. 5, 2007 WL 2404542, unpublished cases are not binding on this Court, MCR 7.215(J)(1).
We recognize that Davenport is published. Therefore, appellees and the circuit court were not without some support for their contention that Pegasus was required to establish that "the practical difficulty [was] unique to the property itself." However, the law is clear that practical difficulty and unnecessary hardship are two separate things, and being unique to or inherent in the property is a requirement of hardships, not practical difficulty. See Norman Corp. , 263 Mich.App. at 203, 687 N.W.2d 861 ; Heritage Hill , 48 Mich.App. at 769, 211 N.W.2d 77. Further, the Michigan Zoning Enabling Act, which provides that "practical difficulty" applies only to nonuse variances while "unnecessary hardship" applies only to use variances, further supports our conclusion that practical difficulty and unnecessary hardship are two distinct and separate standards. MCL 125.3604(7). Accordingly, we reject the arguments relying on the conflated standards. Moreover, because the AZBA cannot require Pegasus to establish the hardship requirements, the last reason provided by the AZBA, as well as its contention that all of Pegasus's arguments are financial and, therefore, do not apply to the land, cannot support its denial of the variances on the basis of "practical difficulty."
2. DEPRIVATION OF USE/ UNNECESSARILY BURDENSOME
We note that neither the AZBA's findings nor the circuit court's opinion addressed the "deprivation of use" and the "unnecessarily burdensome" factors separately. Therefore, we address both factors together.
The AZBA determined that Pegasus had not provided sufficient evidence to establish that the wind project was not financially viable if shorter or fewer turbines were used and did not establish that shorter turbines were unavailable "with anything more than conclusory statements." However, the record from the previous variance denial appeal was part of the instant record, and that record clearly established both of these things as recognized in the trial court's order in the prior appeal regarding the 33 variances. In addition, Pegasus noted that it was not required to establish that the use of alternative turbines or other locations was impossible. In affirming the AZBA, the circuit court held:
Pegasus argues that to comply with the Ordinance by using shorter turbines "would be unnecessarily burdensome and possibly detrimental to the Wind Project's economic viability." Pegasus explained that it could not use shorter turbines because "virtually all commercial wind turbines sold on the market and used by developers like Pegasus Wind today are in excess of 400 feet" and would be in violation of the height limitations in the Ordinance. Pegasus is purchasing turbines from GE and the shortest commercial turbine actively produced by GE has a height of 486 feet at the tip. Further, the shorter "special
purpose" turbines are taller than 400 feet.
Pegasus also notes that the turbines that are shorter than 400 feet would be less efficient than the taller counterparts, which would require Pegasus to site more turbines to produce the megawatt total needed for compliance with its Power Purchase Agreements (PPAs). The township zoning ordinance limits the distances between turbines and turbines being in proximity to homes and property lines. For Pegasus to be in compliance with the Ordinance in this manner would be unnecessarily burdensome, and at most, detrimental to the Project's overall economic viability.
Further, using fewer turbines is not a viable option because "Pegasus Wind cannot comply with its Power Purchase Agreements (PPAs) and its Interconnect Agreement if these variances are not granted." This means that Pegasus Wind would not be able to meet its output requirements. If Pegasus Wind cannot meet the output requirements of these PPAs, Pegasus Wind customers have the right to unilaterally and completely cancel the PPAs.
It is Appellees[’] contention that Pegasus’ arguments relate solely to their financial bottom line, when Pegasus argued that using shorter turbines would be "less efficient" and requiring Pegasus to "site more turbines" would be "at the very least, unnecessarily burdensome, and at the most, detrimental to the Project's overall economic
viability." AZBA states that these arguments are not related to any practical difficulty with the property. [Citation omitted.]
However, by connecting Pegasus's arguments to whether they were related to practical difficulties unique to the property, the AZBA and the circuit court have undercut any utility of their findings because, as previously noted, caselaw contains no "unique to the property" requirement for practical difficulties.
Although not in its resolution, on appeal, the AZBA argues that Pegasus was not unnecessarily burdened by the ordinance because it could "use each of the parcels in the exact same manner after the variance was denied as it could before the variance was denied." However, this statement has no value to the AZBA's position, because it is merely a truism that applies to almost any denial of a variance, unless it was sought for a prior nonconforming use. That is, if a party has no viable use before a variance request, it still has no viable use after its denial. That is the entire point of the question whether there is any economic viability to the property. Here, Pegasus has no use for the land without the variance because its lease agreements all relate to the placement and use of turbines. The AZBA has relied on the agricultural nature of the parcels to assert continued economic use. However, Pegasus does not own those parcels, and its leases do not permit alternative uses for the properties. Therefore, the AZBA's truism only highlights Pegasus's position—the denial of the variances has rendered its lease agreements valueless and prohibited any use of its interest in the various properties. 3. SELF-CREATED DIFFICULTY
Lastly, the AZBA concluded that any practical difficulty was self-created by Pegasus. A person seeking a variance is required to show that the condition giving rise to the need for the variance was not self-created. See Detroit Bd. of Zoning Appeals , 326 Mich.App. at 261, 926 N.W.2d 311. In affirming the AZBA's determination that any hardship that existed in this case was self-created, the circuit court held:
Appellees argue that, in this case, Pegasus complains that it cannot use these parcels of land in the manner it chooses, and that use is driven by the Power Purchase Agreements that it chose to enter into before it sought the necessary variance. The Power Purchase Agreements are unrelated to the subject parcels. The AZBA found that if the agreements create a hardship, that hardship was created by Pegasus.
... Pegasus Wind has explained this project requires that a developer enter into agreements at the outset of the project to ensure financial viability, and requires the local zoning requirements be met, which requires a developer to have a site plan based on finalized lease agreements before obtaining permits.
Appellees present case law which states that a hardship is deemed self-created, and an applicant is not entitled to a variance, if the property in question has a reasonable use under the ordinance but the acts of the applicant render the property unfit for the desired use. It further states that to determine if a hardship is self-created, one should examine if the hardship which the variance is seeking to remedy is created by the applicant, or by the current zoning ordinance, [and] if the property can "reasonably be used in a manner consistent with existing zoning," then the hardship is created by the applicant.
Appellees conclude that there is no question that the property has an economically viable use as it is currently
zoned for agricultural use. Therefore, any hardship that Pegasus alleges in its variance application is self-created by Pegasus’ desire to use the property in a different manner. [Citations omitted.]
The circuit court cited Detroit Bd. of Zoning Appeals as support. However, Detroit Bd. of Zoning Appeals does not support this result.
We first address the county's argument (which mirrors that adopted by the circuit court). The county argues that a hardship can be deemed self-created when the disputed parcels can be used in a manner that is consistent with the existing zoning even if the use is not the use desired by the applicant. The portion of Detroit Bd. of Zoning Appeals on which the county and the circuit court rely is this Court's consideration of two previous cases: Cryderman v. Birmingham , 171 Mich.App. 15, 429 N.W.2d 625 (1988), in which a denial was upheld, and Janssen v. Holland Charter Twp. Zoning Bd. of Appeals , 252 Mich.App. 197, 651 N.W.2d 464 (2002), in which an approval was upheld. Detroit Bd. of Zoning Appeals , 326 Mich.App. at 264-265, 926 N.W.2d 311.
We note that in Detroit Bd. of Zoning Appeals , this Court considered the grant of a use variance based on unnecessary hardship, not practical difficulty. See Detroit Bd. of Zoning Appeals , 326 Mich.App. at 252, 926 N.W.2d 311. Although Detroit Bd. of Zoning Appeals considers the self-creation of hardships, because practical difficulties are also not permitted to be self-created, Norman Corp. , 263 Mich.App. at 202, 687 N.W.2d 861, these cases are applicable for the self-creation analysis.
In Cryderman , the plaintiffs had purchased a lot on which they resided, with two adjacent unplatted lots used as a side yard and lawn for their residential lot. Detroit Bd. of Zoning Appeals , 326 Mich.App. at 264, 926 N.W.2d 311. When the plaintiffs later created a proposal to develop the property, they sought a hardship variance to permit them to sell the two unplatted lots as building sites, which the zoning board of appeals denied. Id. This Court upheld the denial, concluding that the unplatted properties retained their usefulness as a side yard and lawn under the current zoning ordinance and that it was only the plaintiffs’ proposal to develop the property in contravention of the zoning ordinance that resulted in the hardship, rendering it self-created. Id.
Although this initially appears to support the county's position, there is a significant difference. When the plaintiffs in Cryderman first purchased their lot, the adjacent unplatted lots had value and use to them at that time —as a side yard and lawn. That the plaintiffs later sought to change the nature of the use of the unplatted lots is what rendered their hardship self-created. In this case, Pegasus entered into the leases with the landowners solely for the purpose of creating a wind farm. The parcels have no other utility to Pegasus, and the parcels have never had any other use to Pegasus. Therefore, Pegasus is in an entirely different position from that of the plaintiffs in Cryderman .
The second case considered in Detroit Bd. of Zoning Appeals is Janssen, 252 Mich.App. 197, 651 N.W.2d 464. In Janssen , the landowners sought to rezone 100 acres of property and successfully argued to the zoning board of appeals that the current agricultural zoning created an unnecessary hardship "because rising property taxes caused the land's zoned uses to no longer be economically viable such that the land could not ‘reasonably be used in a manner consistent with existing zoning.’ " Detroit Bd. of Zoning Appeals , 326 Mich.App. at 265, 926 N.W.2d 311, quoting Janssen , 252 Mich.App. at 199, 201, 651 N.W.2d 464. This Court determined that the evidence supported the finding that the hardship was not the result of the landowners’ own actions. Detroit Bd. of Zoning Appeals , 326 Mich.App. at 265, 926 N.W.2d 311. " ‘The increasing taxable value of the property and the comparatively low rental income derived are not "self-created" burdens.’ " Id ., quoting Janssen , 252 Mich.App. at 202-203, 651 N.W.2d 464. The outcome in Janssen is more akin to the current situation. That the land within the airport's zoning area sits precisely in the one area where all the requirements for a wind farm can be found is not a self-created burden. Accordingly, the cases in Detroit Bd. of Zoning Appeals on which the county relies actually support a determination that the practical difficulties in this case were not self-created.
Turning to the AZBA's position, its entire argument is that Pegasus entered into the agreements with the landowners without seeking the variances first and that, even if Pegasus was somehow required to do so, it entered into the agreements "fully aware of the existing [o]rdinance." However, this argument lacks merit. Although Detroit Bd. of Zoning Appeals considered unnecessary hardships rather than practical difficulties, Detroit Bd. of Zoning Appeals explicitly held that simply purchasing land, or an interest therein, with knowledge that the land is subject to an ordinance's applicable restriction is not a self-created hardship. Detroit Bd. of Zoning Appeals , 326 Mich.App. at 261-262, 926 N.W.2d 311. Rather, this Court concluded that "a zoning board must deny a variance on the basis of the self-created-hardship rule when a landowner or predecessor in title partitions, subdivides, or somehow physically alters the land after the enactment of the applicable zoning ordinance, so as to render it unfit for the uses for which it is zoned." Id. at 261, 926 N.W.2d 311. There is no evidence in the record that the landowners or Pegasus have partitioned, subdivided, or physically altered the parcels in some way that rendered them unfit for their uses. Therefore, denial on the basis of the self-created-hardship rule was not mandated. See id. To reiterate, this is not a case in which Pegasus purchased the lots for agricultural use and subsequently sought to use the lots some other way. Pegasus leased these properties because they sit in the sole place where all the conditions necessary for building a wind farm are found together. Pegasus entered into the agreements for the sole purpose of being able to use the land for the wind farm. Neither Pegasus's awareness of the ordinance nor the ability of the landowners to use their properties for agricultural purposes under the current zoning is relevant. The question is whether Pegasus has any use for this land under the current zoning—it does not—and whether entering into the agreements with knowledge that the land was subject to the zoning ordinance rendered these hardships self-created—also no. Accordingly, none of the AZBA's three stated reasons for concluding that Pegasus failed to establish a practical difficulty is supported by the record, let alone supported by substantial evidence, and the circuit court misapplied the practical-difficulty standard. Therefore, we conclude that the circuit court erred by affirming this determination.
C. PUBLIC INTEREST
We conclude that the circuit court also erred by affirming the AZBA's determination that the variances would be contrary to the public interest and approach protection.
In support of its determination that granting the eight variances would be contrary to public safety and approach protection, the AZBA's resolution provided:
Although approach protection was part of the consideration undertaken by the FAA's study of the turbines at issue, the FAA Determinations of No Hazard are not dispositive. The FAA looks only at substantial impacts
taking into account the frequency of certain flights and approaches. Risks and flight limitations not deemed substantial or significant by the FAA will result from the proposed wind turbines, including:
a. The wind turbines pose a danger to pilots during in-flight emergencies which are by nature unpredictable.
b. VFR [Visual Flight Rules] pilots will be unable to comply with 14 CFR 91.155 VFR visibility and cloud clearance criteria in the vicinity of the wind turbines when the flight visibility is less than 3 statute miles or the cloud ceiling is less than 1400 feet, while remaining in compliance with the minimum flight altitudes specific in 14 CFR 91.119. This would require VFR pilots flying in those conditions to circumnavigate the wind turbines and approach the airport from another direction, resulting in a choke point, as well as causing a conflict with IFR[ ] pilots conducting a published RNAV instrument approach procedure to the airport for landing. This adversely affects VFR operations and is a safety issue.
c. The wind turbines require a 300-foot increase in minimum descent altitude for the VOR/DME-A approach and landing, requiring pilots using this approach to visualize the runway from a greater distance and creating additional risk. While the VOR/DME-A approach is not frequently used, not all IFR certified aircraft are equipped to conduct more precise approaches preferred by the FAA.
d. Primary radar transmitted from an air traffic control facility is impacted by wind turbines. Since many VFR general
"IFR" refers to pilots using instrument flight rules, meaning that the pilot flies the aircraft by referring to instruments, including those that measure the plane's heading and altitude.
aviation aircraft are not equipped with a transponder or ADS-B surveillance technology, air traffic control must rely on primary radar to locate these VFR aircraft. The wind turbines’ interference with primary radar will impact air traffic control's ability to determine if these non-equipped VFR aircraft are airborne near the Tuscola Area Airport.
Additionally, the variances are not in the public interest because they jeopardize the Tuscola Are Airport's ability to meet current or future federal grant assurances. Grants issued pursuant to the National Plan of Integrated Airport Systems and the Airport Improvement Plan require grant recipients to provide certain assurances when accepting a grant, including that the airport will take the actions necessary to protect instrument and visual operations, to protect approaches and prevent the establishment of future airport hazards. The Tuscola Area Airport has received federal grants requiring these assurances and plans to seek additional grants in the future.
There is also no evidence that the energy that will be generated by the Project is needed or would be utilized in the surrounding community.
In affirming the AZBA's denial, the circuit court stated, in part:
Pegasus presented evidence that the FAA conducted a study involving technicians from more than 10 different government offices who each reviewed the project to ensure that it will not interfere with their specific area of air navigation and safety. The FAA conducted an additional aeronautical study over a period of more than 1 year and considered and analyzed the impact on "existing and proposed arrival, departure, and en route procedures for aircraft operating under both visual flight rules and instrument flight rules, the impact on all existing and planned public-use airports, military airports, and aeronautical facilities, and the cumulative impact resulting from the studied structure when combined with the impact of other existing or proposed structures." The FAA concluded that "the structures would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities," and issued DNHs for the project.
The DNHs state[,] "Therefore, it is determined that the proposed construction would not have a substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or [on] any navigation
facility and would not be a hazard to air navigation providing the conditions set forth in the determination are met." [Citation omitted.]
The circuit court then quoted the AZBA's resolution. The court acknowledged the FAA's determination but noted that one of Pegasus's experts explained that the term "hazard" is a term of art used by the FAA to "differentiate between what the FAA deems to be acceptable and unacceptable risks" and that the FAA would not find a hazard "unless the ‘adverse effect’ exceeds one operation per day, or 365 operations in a year." Appellees acknowledged the FAA's determination that the turbines would require a 300-foot increase in circling minimum descent altitude (MDA) but argued that the FAA did not consider this significant "because other more precise instrument procedures are preferred by the FAA." Appellees contended that the higher MDA "makes it much more difficult to see the runway in reduced visibility conditions and that the turbines will limit when pilots can fly, as pilots will not be able to land in lower visibility conditions." Appellees also cited concerns that VFR pilots would be "forced to circumnavigate the turbines in reduced visibility conditions ... creat[ing] a ‘choke point’ near the airport" that would "conflict with IFR pilots and create a safety issue." The circuit court explained that public comment by Josh Heinlein formed the basis of this finding. Heinlein was a commercial pilot who frequently used the Caro Airport to pilot a private plane. Heinlein "presented evidence regarding the difficulties that these turbines would present to a pilot utilizing VFR," and the circuit court noted that 85% of flights into and out of the Caro Airport were under VFR. The circuit court also found that the AZBA's concerns about primary radar being impacted by the turbines, affecting air traffic control's ability to determine if VFR aircraft without transponders were flying near the airport, were expressed during public comment by local pilot Richard Koerner. The circuit court, citing Polktown Charter Twp. v. Pellegrom , 265 Mich.App. 88, 94, 693 N.W.2d 170 (2005), acknowledged that zoning boards of appeals are permitted to "consider public comments as relevant evidence, but public comments that are unsubstantiated, speculative, or unauthoritative do not provide competent evidence to deny the variance."
The circuit court noted that Pegasus refuted that the turbines would jeopardize any current or future ability to meet grant assurances, arguing that because federal grant money came from the FAA and the FAA had determined that the turbines were not hazardous to the airport, the FAA would not claim that the turbines constituted a violation of the assurances. Further, Pegasus agreed that if grants were affected, it would indemnify the airport for up to five years for the $2.6 million in grant money that the airport received from the FAA. Nevertheless, the circuit court concluded that the AZBA's decision was supported by competent, material, and substantial evidence on the record.
1. STANDARD OF REVIEW DISPUTE
On appeal, Pegasus argues that the circuit court erred in its analysis because it "engaged in little substantive analysis" to reach its conclusion and instead "repeat[ed] the parties’ respective arguments without explaining which argument prevailed or the strength and weaknesses of each argument." The AZBA contends that Pegasus "would prefer this Court give weight to only its experts and the FAA and none to the arguments made by members of the public" and that Pegasus incorrectly framed the circuit court's role, "which is not to evaluate the weight or credibility of the record evidence, but to determine whether substantial evidence exists." The AZBA further argues that there is no requirement that the circuit court independently weigh each side's argument and determine "which one prevails."
This Court must give deference to the AZBA's factual findings. Norman Corp. , 263 Mich.App. at 198, 687 N.W.2d 861. However, this Court must determine whether the circuit court applied the correct legal standard or "misapprehended or grossly misapplied the substantial-evidence test" to the AZBA's findings. Hughes , 284 Mich.App. at 60, 771 N.W.2d 453 (quotation marks and citation omitted). Moreover, according to our Supreme Court, the circuit court was required to
consider[ ] the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and
quantitative evaluation of evidence considered by an agency. [ In re Payne, 444 Mich. at 693, 514 N.W.2d 121 (quotation marks and citation omitted).]
This Court has also recognized that the substantial-evidence test includes a qualitative component. Hughes , 284 Mich.App. at 61, 771 N.W.2d 453. Thus, both the circuit court and this Court must engage in some weighing of the evidence. Further, a determination that the record contains substantial evidence is a determination that a reasonable person would accept that evidence as sufficient to support a conclusion. Id. As stated, the substantial-evidence test is equated with the "clearly erroneous" standard. Id. at 60, 771 N.W.2d 453. "A finding is clearly erroneous if the reviewing court, on the whole record, is left with the definite and firm conviction that a mistake has been made." Id. Likewise, the evidence is not substantial if a reasonable person, on the whole record, would not accept that evidence as sufficient to support a conclusion. Id. at 61, 771 N.W.2d 453.
2. REVIEW OF THE EVIDENCE
Pegasus notes that the only evidence the circuit court analyzed was the public comments made by two local pilots, and Pegasus refutes the circuit court's determination that those comments constituted competent evidence. More specifically, Pegasus challenged Heinlein's allegation that VFR pilots would have to circumnavigate the turbines in reduced-visibility conditions, causing a choke point near the airport that would create a safety issue. According to Pegasus, Heinlein provided no data to support his assertions, while Pegasus's expert from Capitol Airspace, who formed his opinion on the basis of statistical analysis and "his unique expertise in analyzing the impact of tall structures on aviation safety," explained that, using Capitol Airspace's historical analysis, VFR pilots did not fly in reduced-visibility conditions, so there would be no change in operations that would create the alleged choke point. Pegasus's wind expert also explained that even if VFR pilots were flying in reduced-visibility conditions, the eight variances (turbines) would have no impact on VFR pilots because the pilots would already have to circumnavigate the existing structures and turbines in the northwest quadrant of the airport area. Lastly, the expert explained that air-traffic-control processes are in place to ensure that safety is not affected in the event that VFR pilots must circumnavigate the turbines. Pegasus also challenges Koerner's assertion that the primary radar would be impacted by the turbines, which allegedly would then affect air traffic control's ability to determine if VFR aircraft without transponders were flying near the airport. First, counterintuitively, "primary" radar is a "backup" type of radar, while "secondary" radar is the "primary tool for providing air traffic services in the United States." (Quotation marks and citation omitted.) Second, Koerner admitted that his concerns were speculative and deferred to Capitol Airspace's expertise in the area. Capitol Airspace stated that the FAA had studied the turbines’ impact on multiple radar systems, including primary radar, and concluded that although the turbines would create "clutter" on the radar, the clutter would not impact operations at the airport for VFR aircraft or otherwise. In addition, VFR aircraft without a transponder rely on "counter traffic advisory frequency," or radio, "not radar, for the safe separation from themselves from other VFR aircraft or IFR aircraft." (Quotation marks and citation omitted.) Thus, Pegasus asserts, the only competent evidence in the record demonstrates that the turbines’ impact on primary radar would not affect approach protection, while the public comments were speculative and unsubstantiated. Pegasus also contends that the circuit court had expressly rejected the AZBA's other arguments related to in-flight emergencies and risk from raising the MDA in its decision to reverse the denial of the 33 variances.
The AZBA argues that it was "free to give weight to the possibility that the wind turbines will create additional risks for student pilots" because the FAA does not consider student pilots possibly violating the FAA's established procedures or rules. However, this argument has no evidentiary support. The AZBA relies on Pegasus's expert, Ben Doyle. The AZBA alleges that Doyle stated that there might be "a situation where [a] pilot without those turbines might have been able to get into the airport, and might have been able to safely land, and now all of a sudden, they can't because of the existence of the turbines." However, the AZBA has taken the statement out of context. Doyle stated:
I know that there was concern that was expressed that pilots taking off or landing at the airport might get into a bad situation and lose an engine. They ice up. They declare an emergency, whatever it might be, and these turbines might create a situation where that pilot without those turbines might have been able to get into the airport, and might have been able to safely land, and now all of a sudden, they can't because of the existence of the turbines. I understand that's a concern, and I don't think it's—I don't think it's rooted in any sort of—it doesn't have any real basis to it. And the reason I say that is that these turbines are going to be in amongst—in and amongst an existing wind farm, first of all. The routes that pilots are going to take in and out of that airport ... the likelihood that that pilot's going to make a right turn toward the wind farm in trying to get back to the airport is not—it's not—it's not considered viable in my mind. There is a requirement to see and avoid. When we start talking about emergency operations in air traffic, the reliance really, the biggest factor that's going to separate ... a live pilot from a dead pilot in an emergency really comes down to pilot training. It's the number one requirement. The FAA does not protect for emergencies for the very reason that they are unpredictable. You don't know where they're going to happen.... There's been published papers on it and others coming out of FAA flight standards. So ... to me, the safety argument here, there is no safety argument, because the FAA has addressed that. This emergency argument is not rooted in any kind of real factual evidence. So that's my position on that. [Emphasis added.]
Doyle's conclusion is exactly the opposite of what the AZBA claims. Therefore, the AZBA's arguments regarding risks created by emergencies and student pilots lack substantial evidence in the record.
With respect to VFR visibility and cloud-clearance requirements, the county notes that VFR pilots "cannot fly at all during those times [when visibility is less than three miles or there are clouds] if the wind turbines are in their flight path." The county asserts that the testimony of Pegasus's expert that any alleged choke point was not a hazard because VFR pilots have not historically flown often at the airport in the lower-visibility conditions that are affected by the presence of the turbines was insufficient because "VFR pilots may legally fly in the weather and visibility conditions at issue...." The county then calculated that if VFR pilots did choose to fly at times of low visibility, using weather data to estimate those occurrences, VFR pilots would lose 447 daylight hours over 141 days if the turbines were permitted.
However, based on the statistical analysis of the expert and his testimony, the record indicates that VFR pilots are already not utilizing those hours, and no one in the record has explained why. Without any evidence regarding why VFR pilots were already choosing not to fly during periods of low visibility, even though legally permitted to, the calculation of lost hours is meaningless.
The county argues that both Pegasus's expert and a pilot agreed that pilots would not try to weave in and out of the turbines. Accepting this argument as true, the testimony about a potential choke point carries no weight because the Variance Map, included below, makes clear that there are already numerous turbines in and around the airport. In the map, the black dots represent all of Pegasus's turbines, and the circled dots represent the eight turbines for which variances were requested. The blue rocket shapes represent turbines that are already existing, which was also established through Pegasus's expert.
?
The AZBA asserts that the record evidence "is replete with witness testimony and evidence showing the wind turbines would present a danger to pilots experiencing in-flight emergencies, create a conflict between visual flight rules (VFR) and cloud clearance requirements, and that primary radar would be impacted by the turbines." Although the record contains many assertions of things that "could" or "might" occur, and accepting all this evidence regarding things that could occur from the proposed turbines, there is still one very large, very significant hole in the record. Pegasus's wind expert explained that even if VFR pilots were flying in reduced-visibility conditions, the eight turbines would have no impact on those pilots because the pilots would already have to circumnavigate the existing structures and turbines in the northwest quadrant of the airport area.
Along these same lines, the Variance Map calls into question the AZBA's argument regarding issues related to minimum flying altitudes and a potential choke point. According to the AZBA, "[t]he placement of wind turbines within [the] 6.6 mile radius [of the airport] would require VFR pilots to fly" in different airspace, which would trigger different flight-visibility requirements. According to the Variance Map, there are a large number of wind turbines that already exist or will soon exist within that radius. Presumably, those "future" conditions have already come to pass, and pilots have been dealing with them in relation to the other turbines for some time now. That there was no evidence placed in the record of an actual choke point occurring highly suggests that the AZBA's concerns regarding this possibility lack merit. Moreover, if a choke point has yet to occur from the existing turbines in that area, and given that these eight turbines will be interspersed among those others already existing, it is unclear what it is about these eight turbines that will create the choke point. The record does not contain any evidence supporting a finding that the addition of these eight turbines would or could create risks and situations different from what already exists as a result of the numerous wind turbines already built. Therefore, on this record, no reasonable person could conclude that the addition of these eight turbines would create the risks and concerns that the AZBA and the county have identified. Hughes , 284 Mich.App. at 60-61, 771 N.W.2d 453. Thus, the circuit court erred when it concluded that the AZBA's determination that Pegasus had not shown that the variances would not impact public safety or approach protections was supported by substantial, competent, and material evidence.
This is not to say that the existence of numerous turbines in this area requires all future variance requests for turbines to be approved. There may be a point when the addition of more turbines will cause additional problems and risks or be detrimental to the area.
3. SUBSTANTIAL JUSTICE
Finally, appellees assert that the circuit court erred when it concluded that granting the variances would do substantial justice, that there would be no adverse impact on the airport, and that there would be substantial benefit to the county. Generally, an appeal is limited to the issues raised by the appellant unless the appellee files a cross-appeal. MCR 7.207 ; Kosmyna v. Botsford Community Hosp. , 238 Mich.App. 694, 696, 607 N.W.2d 134 (1999). Although appellees did not file a cross-appeal, they "need not file a cross[-]appeal in order to argue an alternative basis for affirming the trial court's decision, even if that argument was considered and rejected by the trial court." Kosmyna , 238 Mich.App. at 696, 607 N.W.2d 134.
In support of its position that the circuit court erred, the AZBA relies on an unpublished opinion from this Court for the premise that a showing of substantial justice requires a variance to be issued when no development can occur on the property because the owner has no economically viable use. See Swiecicki v. Dearborn , unpublished per curiam opinion of the Court of Appeals, issued September 12, 2006 (Docket Nos. 262892 and 263066), p. 3, 2006 WL 2613593. The AZBA contends that it has cited an unpublished case "because it squarely addresses the standard for determining whether ‘substantial justice’ requires a variance to be issued—an issue directly in contention in this case." However, this argument lacks merit because nothing in Swiecicki sets forth a standard for a determination of "substantial justice" in the context of a nonuse variance; accordingly, the unpublished case is not persuasive on this issue. MCR 7.215(C)(1). Additionally, the county merely "suggests" that the circuit court's affirmance in all other respects is inconsistent with its reversal on the substantial-justice factor. "An appellant may not merely announce a position then leave it to this Court to discover and rationalize the basis for the appellant's claims; nor may an appellant give an issue only cursory treatment with little or no citation of authority." Cheesman v. Williams , 311 Mich.App. 147, 161, 874 N.W.2d 385 (2015). By failing to provide any legal argument or analysis, the county has effectively abandoned any claim of error on this question. Lastly, neither the AZBA nor the county has actually addressed the basis of the circuit court's reversal on this issue. Therefore, we need not review appellees’ claim. See Derderian v. Genesys Health Care Sys. , 263 Mich.App. 364, 381, 689 N.W.2d 145 (2004) ("When an appellant fails to dispute the basis of the trial court's ruling, this Court need not even consider granting plaintiffs the relief they seek.") (quotation marks, citation, and alterations omitted).
D. SPIRIT OF THE ORDINANCE
Lastly, we conclude that the circuit court erred when it affirmed the AZBA's determination that the variances were not in the spirit of the ordinance.
According to the resolution, the spirit of the ordinance at issue is to "promot[e] the health, safety, and general welfare of the inhabitants of the County of Tuscola by preventing the establishment of airport hazards, restricting the height of structures and objects of natural growth and otherwise regulating the use of property in the vicinity of Tuscola Area Airport; [and] providing for the allowance of variances from such regulations[.]" See Tuscola Ordinance, § 1.2. The AZBA's decision provides, "In light of the aviation limitations and risks posed by the wind turbines, denial of the eight (8) variance applications is most consistent with the spirit of the Ordinance." In affirming the AZBA's decision, the trial court noted that
[t]he limitations and risks posed by the proximity of wind turbines did not "promote the health, safety, and welfare" of the County's inhabitants in the way that the Ordinance identifies for promoting those values: "by preventing the establishment of airport hazards" and by "restricting the height of structures" in the vicinity of the Tuscola Area Airport.
However, we conclude that there was no substantial evidence to support the finding of "aviation limitations and risks posed by the wind turbines" on this record. The closeness of the eight proposed turbines to the numerous existing turbines and the lack of any evidence from anyone that any of these alleged concerns had come to pass as the result of the placement or use of the previously installed turbines within the airport's 6.6 mile radius precluded these alleged risks and limitations from supporting the AZBA's conclusion, and the AZBA provided nothing more in support of its position.
Although appellees assert that the ordinance provides for outright prevention of hazards rather than their minimization, the plain language of the ordinance expressly provides for the provision of variances, rendering the grant of variances equally within the spirit of the ordinance. In this case, other turbines had received variances, those turbines were sited within the airport's 6.6 mile radius, and no evidence was provided that their existence had created any of the purported "future" risks the AZBA used to justify its decision. Given that the variance being requested was entirely consistent with other land uses in the area, which also had to have met this standard, it is hard to think of a circumstance in which, once the other requirements for a variance are met, the spirit of the ordinance does not include granting the variance. Because the record does not show any substantial, material, or relevant evidence in support of the AZBA's assertion that the turbines create risks and limitations that somehow do not already exist from all the other turbines, the AZBA's decision is without support, and the circuit court erred by affirming it.
Reversed in part and remanded for proceedings that are consistent with this opinion. We do not retain jurisdiction.
Shapiro, J., concurred with Rick, P.J.
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 Aviation Administration and the Michigan Aeronautics Commission issue determinations of no hazard 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 it 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 grossly misapplied the substantial-evidence test to the AZBA's factual findings. Hughes v. Almena Twp. , 284 Mich.App. 50, 60, 771 N.W.2d 453 (2009).
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 and 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 the wind turbines. 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.
Evidence indicated that approximately 85% of the planes utilizing the airport were VFR flights.
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," 14 CFR 77.31(d) (2022), 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.
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 "more than 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 N.W.2d 121 (1994). 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 Bd. of Zoning Appeals , 210 Mich.App. 400, 405-406, 534 N.W.2d 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.’ ") (quotation marks and citation omitted).
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, 514 N.W.2d 121.
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 side's evidence and arguments, 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.
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 of its decision, the circuit court was dealing with a different case this time around.