On November 28, 2023, Governor Gretchen Whitmer signed House Bill 5120 (PA 233 of 2023) which provides siting authority to the Michigan Public Service Commission for utility-scale wind, solar, and energy storage facilities under specified conditions. This change in authority is due in part to Governor Whitmer’s goal of Michigan to become carbon-neutral by 2050. Throughout 2024, the Michigan Public Service Commission has held meetings explaining how the process works in term of siting.
Before Gretchen Whitmer signed House Bill 5120 (PA 233 of 2023), siting authority lied with the localities. Depending on your jurisdiction, this still may be the case. This blog is meant to serve as a primer to how developers get approval from their local municipalities.
Before any approval is necessary, a developer plans a project. In this stage, the developer develops a site plan and enters into agreements with property owners or individually purchases land to develop. As a part of this process, the developer will most likely work with the local unit of government to meet local jurisdictional requirements. A prudent landowner who is selling or leasing their land should assist the developers assuming they have ties to the local community. It is important to note that any action by the developer must comply with the local zoning ordinance until November 29, 2024.
Assuming a theoretical development is happening after November 29, 2024, the developer can opt to pursue siting at the Michigan Public Service Commission. If so, then the developer must schedule a public meeting in the locality. But, before that meeting, the developer must meet with the chief elected official of the locality at least 60 days before the public meeting.
Within 30 days of the meeting with the developer, the local elected official must notify in writing whether it has an applicable Compatible Renewable Energy Ordinance (“CREO”). A CREO is an ordinance that allows for the development of renewable energy facilities within the local unit under conditions that are no more restrictive than the requirements set in MCL 460.1226(8).
If there is a CREO, the developer follows the local process according to the local unit’s CREO. In this situation, the local unit has 120 days to approve or deny the developer’s application. If the local unit fails to return a response in time, then the developer can bypass the CREO and see approval from the Michigan Public Service Commission. There are other ways to bypass CREO as well.
If there is not a CREO, then then developer must provide notice to the local clerk at least 30 days in advance of the public meeting and publish a public notice at least 14 days in advance of the meeting. The developer then holds the meeting. Afterwards, if the developer files for siting approval with the Michigan Public Service Commission, the developer must make a one-time grant to each affected local unit, in the amount that the Michigan Public Service Commission decides, to cover costs associated with participation in the case. These grants cannot exceed $75,000 per local unit and $150,000 in total.
After either of these steps, the developer must supply notice of the opportunity to comment on the application and will be reviewed through the contested case process and order must be issued within 1 year.
There are a lot of steps and legal hoops to jump through when going through any project. The attorneys at Dalton & Tomich are experienced in all aspects of land use and would be happy to assist you with getting your development through the various steps. Please do not hesitate to reach out for a consultation at any time.
