Opinion
No. 357209 No. 357210
02-24-2022
TUSCOLA AREA AIRPORT ZONING BOARD OF APPEALS, Appellant, v. MICHIGAN AERONAUTICS COMMISSION, Department of Transportation, and Pegasus Wind, LLC, Appellees. Tuscola Area Airport Authority, Appellant, v. Michigan Aeronautics Commission, Department of Transportation, and Pegasus Wind, LLC, Appellees.
Foster, Swift, Collins & Smith, PC, Grand Rapids (by Michael D. Homier and Laura J. Genovich ) for the Tuscola Area Airport Zoning Board of Appeals. Barnes & Thornburg LLP, Grand Rapids (by Scott Dienes and Aaron D. Lindstrom ) for the Tuscola Area Airport Authority. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Michael J. Dittenber, Assistant Attorney General, for the Michigan Aeronautics Commission and the Department of Transportation. Warner Norcross + Judd LLP (by Jonathan E. Lauderbach, Midland, Daniel P. Ettinger, and Ashley G. Chrysler, Grand Rapids) for Pegasus Wind, LLC.
Foster, Swift, Collins & Smith, PC, Grand Rapids (by Michael D. Homier and Laura J. Genovich ) for the Tuscola Area Airport Zoning Board of Appeals.
Barnes & Thornburg LLP, Grand Rapids (by Scott Dienes and Aaron D. Lindstrom ) for the Tuscola Area Airport Authority.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Michael J. Dittenber, Assistant Attorney General, for the Michigan Aeronautics Commission and the Department of Transportation.
Warner Norcross + Judd LLP (by Jonathan E. Lauderbach, Midland, Daniel P. Ettinger, and Ashley G. Chrysler, Grand Rapids) for Pegasus Wind, LLC.
Before: Rick, P.J., and Murray and Shapiro, JJ.
Rick, P.J. In these consolidated appeals, appellants the Tuscola Area Airport Zoning Board of Appeals (the AZBA) and Tuscola Area Airport Authority (Airport Authority) appeal as of right the order of the Ingham Circuit Court granting appellee Pegasus Wind, LLC's motion to dismiss, with concurrence by appellees the Michigan Aeronautics Commission (MAC) and the Michigan Department of Transportation (MDOT), on the ground that neither appellant was an aggrieved party. This case raises an issue of first impression regarding what constitutes an aggrieved party for purposes of MCL 259.489 of the Tall Structure Act (the Act), MCL 259.481 et seq., and MCR 7.103(A). See MCR 7.215(B)(2). For the reasons explained in this opinion, we affirm.
MCR 7.215(B)(2) provides that a Court of Appeals opinion must be published if it "construes as a matter of first impression a provision of a constitution, statute, regulation, ordinance, or court rule."
I. BACKGROUND
This controversy has an extensive procedural and factual history involving local regulatory authorities’ decisions on a commercial wind energy system being built by Pegasus 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.
In April 2019, Pegasus received "Determinations of No Hazard" (DNH) from the Federal Aviation Administration (the FAA) for some of its proposed wind turbines within the Tuscola Airport zoning area. The FAA report stated that the turbines "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." The report noted that the turbines would require an increase in the minimum descent altitude for flights using a Very High Frequency Omni-Directional Radio Range System, known as VOR. VOR is an older technology for instrument flight. A pilot using a VOR approach must stay above the minimum descent altitude until the aircraft is in position to descend to the runway and the pilot has a visual reference point for the runway. The DNH also addressed seven letters of objection that the FAA had received in response to its 2018 studies. Although some Tuscola residents petitioned the FAA to review its DNH, the FAA denied the petition for review, reiterating that the proposed turbines would not have an adverse effect on the safe use of the airspace and would not be a hazard to air navigation. While the FAA petition for review was pending, MDOT's Office of Aeronautics held a meeting to review the project and subsequently issued a letter in which it concurred with the FAA's DNH and stated that a "Michigan tall structure permit could be issued" once it received certificates of local variance approval.
Federal Aviation Administration, Descent to MDA or DH and Beyond , < http:/faasafety.gov/gslac/ALC/libview_normal.aspx?id=17273> (accessed January 26, 2022) [https://perma.cc/YE9T-MBFB].
Pegasus applied to the Tuscola Airport Zoning Administrator for 40 wind-turbine permits within the airport zoning area. The administrator approved seven permits but denied the other 33 because the turbines would violate certain airport zoning ordinances, such as aircraft descent minimums. Pegasus then sought variances from the AZBA for those 33 turbines.
The AZBA denied all 33 variances, and Pegasus appealed in the Tuscola Circuit Court. In late November 2019, the Tuscola Circuit Court concluded that Pegasus had established the requirements for the variances and reversed the AZBA's denial of the variances. On March 6, 2020, the AZBA issued the 33 variance certificates. The certificates were sent to MAC and, after they were reviewed, MAC issued the tall-structure permits (the Permits). Ten days later, the AZBA and Airport Authority each initiated an appeal in the Ingham Circuit Court (hereinafter, the circuit court), alleging that it was an aggrieved party of MAC's order issuing the Permits.
The AZBA's subsequent applications for leave to appeal in both this Court and our Supreme Court were denied. 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), lv. den. 506 Mich. 941, 949 N.W.2d 696 (2020), recon den 507 Mich. 871, 953 N.W.2d 396 (2021).
In May 2020, Pegasus moved to expand the record and moved to dismiss the appeal. Pegasus alleged that the circuit court lacked jurisdiction because MAC's issuance of the Permits was not an order or rule that was appealable under the Act. Pegasus further argued that, even if MAC's issuance of the Permits was appealable, neither the AZBA nor Airport Authority were aggrieved parties. MDOT and MAC filed a joint brief concurring in both the motion to dismiss and the motion to expand the record. Electing not to hold oral argument, the circuit court granted Pegasus's motion to dismiss. Although the court concluded that it had jurisdiction over an appeal of the Permits, it determined that neither the AZBA nor Airport Authority were aggrieved parties.
These appeals followed.
II. STANDARD OF REVIEW
This Court reviews de novo as a question of law whether a party has standing to invoke appellate review of an administrative ruling. Olsen v. Chikaming Twp. , 325 Mich.App. 170, 180, 924 N.W.2d 889 (2018). This Court also reviews de novo "whether a matter is properly placed before a court by a person with standing," as well as "the interpretation of statutes and court rules." Mathew R. Abel, P.C. v. Grossman Investments Co. , 302 Mich.App. 232, 237, 838 N.W.2d 204 (2013).
III. ANALYSIS
The sole issue before this Court is whether either the AZBA or Airport Authority is an aggrieved party under MCL 259.489 and MCR 7.103(A). We hold that the circuit court properly concluded that neither the AZBA nor Airport Authority was an aggrieved party.
The AZBA and Airport Authority filed their appeals in the circuit court pursuant to MCL 259.489, which provides:
Within 10 days after the issuance of an order or rule of the commission,[ ] a person aggrieved by the order or rule may appeal to or have the action of the commission reviewed by the circuit court of Ingham county in the manner provided for the review of orders of other administrative bodies of this state.
"Commission" refers to MAC. See MCL 259.481(d).
Under MCR 7.103, a circuit court has jurisdiction over an appeal of right "filed by an aggrieved party from ... a final order or decision of an agency from which an appeal of right to the circuit court is provided by law." MCR 7.103(A)(3) ; MCNA Ins. Co. v. Dep't of Technology, Mgt. & Budget , 326 Mich.App. 740, 744-745, 929 N.W.2d 817 (2019). Thus, under MCL 259.489, a party seeking relief from a decision from MAC must establish to the circuit court that they are "an aggrieved" party. See MCL 259.489. "An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court's power." Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 291-292, 715 N.W.2d 846 (2006). "To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency." Id. at 291, 715 N.W.2d 846 (quotation marks and citation omitted).
A. DOCKET NO. 357209 (AZBA)
The AZBA argues that the trial court erred by concluding that it was not an aggrieved person with standing to appeal MAC's decision to issue permits to Pegasus. We disagree. The circuit court concluded that AZBA had not established that it would suffer a concrete and particularized injury or that it had an interest of a pecuniary nature beyond mere possibility. The court rejected the AZBA's argument that its role in enforcing the Airport Ordinance by hearing and deciding requests for variances gave it a "substantial interest in limiting the height of structures and regulating the use of property in the vicinity of the airport." The circuit court noted that the variances in this case had already been issued, the Tuscola Circuit Court had already issued orders with respect to the conditions the variances could contain, and that once those variances were obtained, the Act allowed MAC to issue the Permits. The circuit court concluded that "[t]he AZBA's role in this matter has already been resolved, and the actions of the MDOT and the MAC based on the variances already issued do not present a concrete or particularized injury or an interest of a pecuniary nature."
On appeal, the AZBA contends that using the circuit court's reasoning, no entity would be able to appeal a permit in this matter, even though the Act permits aggrieved parties, not simply applicants, to appeal. However, the fact that the AZBA is not an aggrieved party in this case, or that no one else could be considered an aggrieved party in this case, does not automatically render the circuit court's decision erroneous. The Legislature "may permissibly limit the class of persons who may challenge a statutory violation." Miller v. Allstate Ins. Co. , 481 Mich. 601, 607, 751 N.W.2d 463 (2008). As MAC points out, the Legislature can make that limitation very strict, as it did in MCL 324.35305(1), which limits those who can contest a permit or decision to the applicant or the "owner of the property immediately adjacent to the proposed use...." Thus, in some instances there may not be an entity that constitutes an aggrieved party after an administrative body renders a decision. That this may have occurred here does not evidence that the appeals process provided for in the Act is being circumvented or rendered moot.
Appellees argue that the AZBA lacks any authority to file an administrative appeal, noting the limited nature of its authority delineated in MCL 259.457 and the Tuscola Area Airport Zoning Ordinance (the Airport Ordinance). We agree.
"Townships have no inherent powers; they possess only those powers expressly granted them by the Legislature or the Michigan Constitution or ‘fairly implied’ therefrom." Hughes v. Almena Twp. , 284 Mich.App. 50, 61, 771 N.W.2d 453 (2009) (citation omitted). A zoning board of appeals "is a municipal administrative body, charged with interpreting the ordinance, hearing appeals, granting variances, and performing various other functions that may arise in the administration of the zoning ordinance." Sun Communities v. Leroy Twp. , 241 Mich.App. 665, 670, 617 N.W.2d 42 (2000) (citation omitted). Under the Airport Ordinance, "[t]he Board of Appeals has the powers set forth in Section 27 of the Airport Zoning Act, being MCL 259.457,[ ] and shall exercise such powers as are conferred upon it in the Airport Zoning Act and in this Ordinance." Airport Ordinance, § 5.2. Airport Ordinance § 5.2(D), titled "Powers," provides:
MCL 259.457 provides:
All airport zoning regulations adopted under the provisions of this act shall provide for a board of appeals to have and exercise the following powers:
(a) To hear and decide appeals from any order, requirement, decision, or determination made by the administrative agency in the enforcement of the zoning regulations, as provided in [MCL 259.459 ];
(b) To hear and decide any special exceptions to the terms of the airport zoning regulations upon which such board may be required to pass under such regulations;
(c) To hear and decide specific variances under [MCL 259.454 ].
The Board of Appeals, by the concurring vote of a majority of its members, shall have the power to issue certificates of variance under the provisions of this Ordinance, or to otherwise decide appeals from any order, requirement, rule, regulation, decision or determination made by the Airport Zoning Administrative Agency/Zoning Administrator under the powers conferred upon it by this Ordinance. [Emphasis added.]
Thus, under the Airport Ordinance, these are the sole powers conferred on the AZBA.
The AZBA attempts to rely on the purpose of the Airport Ordinance, which is to "prevent[ ] the establishment of airport hazards, restrict[ ] the height of structures and objects of natural growth and otherwise regulate[ ] the use of property in the vicinity of the Tuscola Area Airport ...." Airport Ordinance, § 1.2. However, that is the stated purpose of the Airport Ordinance, not the stated purpose of the AZBA. Two additional purposes stated for the Airport Ordinance are "designating the Airport Zoning Administrative Agency/Zoning Administrator charged with the administration and enforcement of such regulations; [and] establishing an airport zoning board of appeals[.]" Airport Ordinance, § 1.2. Therefore, according to the Airport Ordinance, administration and enforcement of the regulations does not sit with the AZBA, but with the Zoning Administrative Agency/Zoning Administrator.
Moreover, Airport Ordinance, § 6.4, "Civil Action Available," gives the authority to initiate an action in Tuscola Circuit Court to "[t]he Airport Zoning Administrative Agency/Zoning Administrator, on behalf of and in the name of the County of Tuscola" in order to "prevent, restrain, correct or abate any violation of this Ordinance or under the Airport Zoning Act ... or of any order or ruling made in connection with their administration or enforcement ...." Furthermore, the AZBA and the Airport Zoning Administrative Agency/Zoning Administrator are entirely separate entities. Article 2 defines "Airport Zoning Administrative Agency" as "[t]he Tuscola County Airport Zoning Administrator or its Agent, the local zoning administrator," which is distinctly separate from the AZBA, "[a]n independent, five (5) member board appointed by the Tuscola County Commissioners." Airport Ordinance, §§ 2.9, 2.10. Accordingly, the Airport Ordinance does not authorize the AZBA to file suit in relation to issues related to the ordinance. Rather, the Airport Ordinance expressly grants and limits that authority to someone other than the AZBA.
Notably, even the agency/administrator's power to bring suit is limited and permitted only "if the local unit's administrative body or the County Board of Commissioners, respectively, shall have authorized a civil action." Airport Ordinance, § 6.4.
The AZBA also relies on Dept. of Consumer & Indus. Servs. v. Shah , 236 Mich.App. 381,386, 600 N.W.2d 406 (1999), arguing that it is an aggrieved party because it has a "statutory duty to protect the Airport against hazards and therefore has an interest in ensuring that the Tall Structure Act is properly applied." However, Shah does not support the AZBA's position.
In Shah , the petitioner, the Department of Consumer and Industry Services, appealed the final order of dismissal issued by the Disciplinary Subcommittee of the Board of Medicine. Id. at 384, 600 N.W.2d 406. The petitioner had charged the respondent with multiple violations of the Public Health Code. However, after a hearing, the disciplinary subcommittee adopted the hearing referee's recommendation and dismissed the charges against the respondent. On appeal, the respondent argued that the petitioner lacked standing to appeal the subcommittee's decision. Id. This Court held that the petitioner, "[a]s an agency charged with enforcing the Public Health Code," had a "cognizable interest in ensuring that a hearing referee properly applies the law in an administrative proceeding." Id. at 385-386, 600 N.W.2d 406. Further, this Court concluded that the petitioner had "an interest in the litigation because misconstruction or improper application of the law would hinder [the petitioner's] ability to enforce the law as the Legislature intended." Id. at 386, 600 N.W.2d 406. In contrast, the instant case involves issuing a permit under MCL 259.482a, which MAC, not the AZBA, is tasked with enforcing. Further, our Supreme Court has recognized that "an interest in the proper enforcement of a statute has never before been thought sufficient to confer standing; instead, a concrete and particularized injury is required to confer standing." Federated Ins. Co. , 475 Mich. at 291 n. 4, 715 N.W.2d 846.
The AZBA contends that the statutory appeal right is "meaningless if the local agencies charged with regulating structures near airports do not have standing to appeal the erroneous issuance of a Tall Structure Permit for wind turbines beside an airport." However, as the circuit court noted, the AZBA has the opportunity to regulate the structures before any tall-structure permit ever gets issued. That is, a tall-structure permit is generally not issued unless the AZBA has already authorized the variances necessary. See MCL 259.482a(1). To permit the AZBA to be an aggrieved party to MAC's issuance of tall-structure permits, particularly in this case in which the Permits were issued in reliance on the AZBA's certificates of variance approval, would give the AZBA an unwarranted second bite at the apple.
This interpretation is further supported by Airport Ordinance, § 6.1. This provision grants MAC the authority, as an aggrieved party, to appeal a determination by the AZBA. This provision flows logically from the fact that MAC's preliminary determinations can essentially be "overruled" by the AZBA, rendering MAC an aggrieved party. MAC, on the other hand, does not have the authority to "overrule" the AZBA. MAC generally has already provided notice that a permit can be issued if variance certificates are received. Therefore, there is little for MAC to do but issue a permit after it receives variance certificates.
Airport Ordinance, § 6.1 provides, "Any person, including the [MAC] on behalf of and in the name of the State, aggrieved by any decision of the [AZBA], may appeal to the Circuit Court of the County of Tuscola as provided in [MCL 259.460 ]."
Considered in context, it would be both illogical and inconsistent for us to conclude that the AZBA has the ability, let alone the authority, to appeal MAC's issuance of a tall-structure permit. By the time the issues reach MAC, the AZBA has already reviewed all of the evidence, held hearings, and created whatever record it believes is necessary to support its variance decision. The AZBA can hardly be an aggrieved party under such circumstances. Indeed, the only conceivable times the AZBA would want to appeal the issuance of a tall-structure permit after it had already issued the requested variance would necessarily be times when it was simply displeased by the result, i.e., when the courts overrule its denial, as occurred in this case, or when the makeup of the AZBA changes between issuance of the certificates and issuance of the permit so that the minority that wanted to deny a variance is now a majority.
Lastly, the AZBA contends that for MDOT to grant a tall-structure permit, it must satisfy certain requirements "including an opinion by MDOT that the Michigan Tall Structure Permit could be issued." The AZBA argues that "MDOT making such [an] opinion requires an airspace study or finding of noninterference, which is lacking in the present case." However, this argument relates to the substantive merits of the case, not whether the AZBA has standing. Accordingly, we conclude that the circuit court did not err when it determined that the AZBA was not an aggrieved party.
B. DOCKET NO. 357210 (AIRPORT AUTHORITY)
As with the AZBA, the circuit court concluded that Airport Authority was not an aggrieved party because it had not established that it would suffer a concrete and particularized injury or that it had an interest of a pecuniary nature beyond mere possibility. More specifically, the circuit court determined that Airport Authority failed to provide any evidence about how the wind turbines "will affect its current flight paths, how many airplanes might cease using the airport, or any financial data related to those flights" to support its assertion that it will lose money if fewer airplanes use the airport because of the wind turbines. The circuit court noted that the record was filled with concerns from pilots of things the turbines " ‘may’ " do. The court likewise acknowledged that the administrative record reflected departure paths " ‘potentially’ " excluding aircrafts from departing under certain weather conditions. Ultimately, however, the court explained that "these potential risks were specifically not considered by the FAA in its determination because the FAA determined they did not constitute a ‘substantial adverse effect’ on safety at the airport." Thus, the circuit court concluded that Airport Authority was "not able to state, as a matter of concrete, particularized injury, that there will be actual losses of flights, fuel sales, or use of the airport."
The circuit court also rejected Airport Authority's concerns regarding loss of federal grants from the FAA because it "presented no evidence or authority to suggest that the FAA, having determined that the wind turbines present no substantial safety risk, will subsequently revoke a grant to the airport based on a safety risk presented by the wind turbines." In reaching these decisions, the circuit court noted that the Tuscola Circuit Court had "already rejected several of these arguments," and although it was not bound by those decisions, it found that Airport Authority's "arguments, testimony, and evidence have not changed in any way that would bring this Court to a separate conclusion."
The determination whether Airport Authority is an aggrieved party centers on whether Airport Authority's alleged harms are "concrete and particularized." See Federated Ins. Co. , 475 Mich. at 291, 715 N.W.2d 846. Airport Authority argues that "there is a substantial risk that [it] will lose revenue because of the steeper flight paths imposed by the grant of the Tall Structure Permit" to the extent that it "has shown a sufficient likelihood of harm." It further argues that certainty is not required and cites Detroit Downtown Dev. Auth. v. U.S. Outdoor Advertising, Inc. , 480 Mich. 991, 992, 742 N.W.2d 133 (2007), for the premise that any "potential" cause of economic damage is sufficient.
Although Detroit Downtown Dev. Auth. , 480 Mich. 991, 742 N.W.2d 133 was a "standing" case and not an "aggrieved party" case, this distinction is of no consequence here even though the former governs the right to bring suit and the latter the right to appellate review of an administrative decision; in either case, a particularized and concrete injury must be shown, i.e., that the injury arose from the actions of a court judgment or the underlying facts of the case. See Olsen , 325 Mich.App. at 181, 924 N.W.2d 889.
In that case, an advertising agency had sought a variance from the Detroit Board of Zoning Appeals (ZBA) to allow them to place large advertisements on a variety of buildings. Detroit Downtown Dev. Auth. v. U.S. Outdoor Advertising Inc. , unpublished per curiam opinion of the Court of Appeals, issued April 12, 2007 (Docket No. 262311), pp. 1-2, 2007 WL 1094410, rev'd 480 Mich. 991, 742 N.W.2d 133 (2007). Because the Detroit Downtown Development Authority (DDA) owned a parking garage located within 300 feet of one of the buildings, it received notice of the advertising agency's request for a variance, and the DDA opposed the advertising plans. Id. at 2. The ZBA granted the requests for two buildings, but denied requests for two other buildings. Id. The DDA appealed the decision in the circuit court, arguing that the decision was not supported by competent, material, and substantial evidence. Id. The advertising agency argued that the DDA lacked standing, but the circuit court disagreed and reached the merits. Id. On appeal in this Court, in a split opinion, the advertising agency again argued that the DDA lacked standing. Id. This Court held that the DDA's opinion "that the super graphics will harm its overall development plan of the downtown area" was "unsupported by evidence" and, therefore, was insufficient to satisfy the requirement of a "concrete" "injury in fact." Id. at 3. Our Supreme Court reversed this Court, holding:
[P]laintiff has shown that it has made substantial investments in the area surrounding the variance, that it owns nearby buildings, and that it has a supervisory authority over the development district that encompasses the variance. Further, plaintiff has shown that the variance will potentially cause economic injury to its interests. Because a judgment in favor of plaintiff will eliminate these injuries, plaintiff has established standing to challenge the variance. [ Detroit Downtown Dev. Auth. , 480 Mich. at 991-992, 742 N.W.2d 133.]
The Airport Authority argues that the Supreme Court's order in Detroit Downtown Dev. Auth. should be read broadly to mean that a showing of "potential" for any economic injury to its interests is sufficient to constitute a concrete, particularized, and actual or imminent injury. We disagree. The instant case is distinguishable because the DDA's interests were greater than mere ownership of property near the buildings that would show the advertisements and because the degree of the "potential" injury was far greater in that case than has been suggested here. The DDA had invested over $65 million in the "affected area" that was statutorily created to "eliminate the causes of property value deterioration," Detroit Downtown Dev. Auth. ( METER , J., dissenting), unpub. op. at 4 (quotation marks, citation, and brackets omitted), and held "supervisory authority over the development district that encompasse[d] the variance," Detroit Downtown Dev. Auth. , 480 Mich. at 992, 742 N.W.2d 133. Therefore, the potential injuries the DDA was likely to incur were not simply the loss of renters in the garage, but loss of value to its millions in investments to the larger area and negative impacts related to its statutory obligations. This is a far more concrete and particularized injury than those alleged by Airport Authority, as explained more fully later in this opinion. Moreover, the instant case is further distinguishable from Detroit Downtown Dev. Auth. because, unlike in the instant case, the DDA sought to challenge the grant of a variance by the ZBA—not the issuance of a permit from another agency after variances had already been granted by the ZBA. Nonetheless, we consider the Airport's Authority's arguments in turn.
Airport Authority has alleged three potential harms: loss of revenue to the airport caused by fewer pilots using the airport, injury to its safety interests resulting from alteration of flight paths "to a steeper and riskier approach angle" resulting from the building of the turbines, and revocation of federal grants by the FAA.
Looking first at the loss of revenue to the airport, Airport Authority relies on MDOT reports to establish that "the average visitor to the airport spends $262" and contends that the loss of even one visit would establish a pecuniary interest. There are multiple problems with this argument. First, given that the number of visitors to an airport varies from year to year, even without turbines, the loss of multiple visitors, let alone a single one, is not enough to establish that the loss—if any—was created by the installation of turbines. Rather, weather conditions, the economy, the personal finances of individual pilots, and any number of other factors necessarily affect the number of visitors to an airport in any given year. Absent some way to correlate the loss of revenue to the installation of turbines, this assertion of harm is nothing more than speculation. See Federated , 475 Mich. at 291, 715 N.W.2d 846.
Second, MDOT's method of calculating the spending of the "average" visitor to the airport is nothing more than dividing revenue by the number of visits to the airport. Airport Authority has provided no evidence to establish that this number can or should be used to represent what the average pilot, who might not make a particular visit because of the turbines, spends. There is no evidence to indicate what types of revenue, such as fuel sales and hangar rental, make up the $262 figure, nor is there any evidence to establish whether a typical pilot who might be affected by the changes in descent altitude makes any of these types of expenditures when they use the airport. Further, although it is reasonable to conclude that the weather will cause the cancellation of some flights, this does not automatically translate into a loss of revenue. Just because a pilot does not make a flight on a particular day because of the weather does not establish that the visit is lost forever—it may simply be deferred to a different day when weather conditions are better. Indeed, weather conditions prevent pilots from being able to fly even without the presence of turbines. However, these losses are unpredictable and entirely caused by unexpected weather conditions.
Although Airport Authority argues that inclement weather is all but certain to occur, inclement weather is affected by so many different variables that its occurrence is extremely difficult to predict and cannot constitute anything other than a mere possibility arising from multiple unknown and future contingencies. See Truman v. J. I. Case Threshing Machine Co. , 169 Mich. 153, 158, 135 N.W. 89 (1912) (holding that anticipated profits from anticipated use of a threshing machine were "too conjectural and uncertain" because threshing "is conducted in the open air and subject to contingencies of weather, breakages, delays, ... and skill and energy in operating the machine, which make it impracticable definitely to ascertain ... the profits") (quotation marks and citation omitted). Further, although pilots expressed concerns that the wind turbines could create navigational hazards or pose a threat to the safety of the airspace, not a single pilot stated that the addition of the turbines would definitely cause them to stop using the airport or that they had intended to fly under VFR during periods of low visibility but would now be prevented from doing so as a result of the turbines.
Airport Authority contends that the circuit court erred by faulting Airport Authority for failing to provide evidence of how the turbines would affect current flight paths, how many airplanes might cease using the airport, or any financial data related to those flights. Airport Authority notes the " ‘higher than standard minimum climb gradient,’ " which could " ‘potentially exclude[ ] aircraft from departing Tuscola Area Airport ....’ " This evidence only supports the circuit court's determination that Airport Authority failed to prove anything concrete, given that the statement specifically provides that it only potentially excludes aircraft. The vague potential of this outcome is enough to render this harm a mere possibility arising from some unknown and future contingency. See Federated , 475 Mich. at 291, 715 N.W.2d 846.
Airport Authority's next purported harm is "a concrete and particularized injury to its interests in safety [because it would be] required to alter its flight paths to a steeper and riskier approach angle...." However, the record does not support that there is any injury to Airport Authority's safety interests from the building of the turbines. Not only has the FAA issued its DNH, but it also rejected these exact arguments when raised in the petition requesting a discretionary review of the determinations, concluding that "the structures would not have an adverse effect on the safe and efficient use of the navigable airspace by aircraft and would not be a hazard to air navigation." Notably, the circuit court relied, in part, on the Tuscola Circuit Court's determination in the reversal opinion that " ‘no evidence was presented by an expert to substantiate the contention that the turbines would negatively affect airport operations, nor did the members of the public cite any reliable authority which would contradict Pegasus’[s] evidence.’ " (Brackets omitted.) The FAA already considered the pilot testimony regarding the concerns and arguments being raised by Airport Authority before it issued its affirmation of the DNH's conclusion that the turbines "would not be a hazard to air navigation." No new evidence has been added to the record since that time. There is no support in the record for Airport Authority's contention that there is an injury to its safety interests created by MDOT's issuance of the Permits in reliance on the certificates issued by the AZBA.
MAC argues that even if turbines in general could cause such harms, "it is entirely speculative that these turbines will specifically harm [Airport] Authority." Indeed, when Airport Authority sought to challenge the FAA's DNH, the United States Court of Appeals for the District of Columbia Circuit noted that "[t]he area already contains numerous other turbines." Tuscola Area Airport Authority v. Dickson , 831 F.Appx. 511 (D.C., 2020). The record does not indicate that Pegasus's turbines are taller, closer, or somehow more obstructive of flight navigation than the hundreds already in existence. In fact, the FAA concluded that "the aggregate impact on air safety would be negligible." Id.
Airport Authority argues that the public comments from pilots related only to the new turbines—not those already constructed. Airport Authority also argues that the existing turbines did not change the flight altitude or potential for inclement weather. Neither the issuance of the Permits nor the actual construction of the turbines will alter the potential for inclement weather any more than the existing turbines. Further, as discussed, the FAA repeatedly concluded that Pegasus's turbines do not create a safety risk, either individually or in aggregate with the ones already in existence.
Lastly, Airport Authority contends that it might lose FAA funding because the turbines pose a hazard. The FAA has already determined that the turbines will pose no hazard to air navigation. To argue that the FAA would revoke funding on a conclusion that those same turbines now constitute a hazard is counterintuitive at best. On this record, there is no evidence to conclude that Airport Authority bears any real risk of losing future funding from the FAA as a result of Pegasus building turbines that the FAA has explicitly determined are not a hazard. This purported harm is nothing but a mere possibility arising from some unknown and future contingency. Federated , 475 Mich. at 291, 715 N.W.2d 846.
Affirmed.
Murray, J. (concurring in part and dissenting in part).
The majority opinion correctly concludes that the Tuscola Area Airport Zoning Board of Appeals is not an aggrieved party under MCL 259.489 of the Tall Structure Act, MCL 259.481, and MCR 7.103(A). However, for the reasons briefly set out below, I depart from the conclusion that the Tuscola Area Airport Authority (Airport Authority) is not an aggrieved party, and I therefore would reverse in Docket No. 357210. As the majority notes, an aggrieved party for purposes of this statute and court rule requires that a party " ‘have some interest of a pecuniary nature in the outcome of the case and not a mere possibility arising from some unknown future contingency.’ " Olsen v. Chikaming Twp. , 325 Mich.App. 170, 181, 924 N.W.2d 889 (2018), quoting Federated Ins. Co. v. Oakland Co. Road Comm. , 475 Mich. 286, 291, 715 N.W.2d 846 (2006). As the Federated Ins. Co. Court stated:
[T]o have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court's power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. [Id. at 291-292.]
Here, the Airport Authority is an aggrieved party because (1) the airport and its customers are the exclusive groups the permitting decision is concerned with, and the Airport Authority's statutory duties could be impacted by the decision to allow the wind turbines to be built, (2) record evidence shows the high likelihood that the issuance of the permits will cause the Airport Authority to lose revenue, and (3) the combination of (1) and (2) show that the Airport Authority will suffer damage in a way unlike others in the community.
First, with respect to the Airport Authority's duties, there is no doubt that it has broad statutory responsibility over all aspects of the airport, including the landing facilities. MCL 259.622. It also has the power to sue, tax, and otherwise control the entirety of airport operations. Id. The safety of planes landing and taking off from the airfield governed by the Airport Authority is of paramount concern to the Airport Authority. Thus, the decision to issue a tall-building permit that allows for the placement of wind turbines in the immediate vicinity of the airport, and which may have real consequences to certain planes seeking to use the airport, causes the Airport Authority a particularized injury. Evidence from the administrative record presented to the circuit court shows that with the placement of these wind turbines, certain planes seeking to use the airport will be required to enter a higher airspace, which in turn requires those planes to utilize a steeper decline to land at the airport, and a steeper incline to take off. This change in flight patterns causes actual, particularized safety issues for the Airport Authority.
Indeed, tied directly to the issues of airspace and airplane descents to, and takeoffs from, airports, and the placement of tall structures that could affect those descents and ascents is the Tall Structure Act. The stated purpose of the Tall Structure Act is, in part, to "promote the safety, welfare, and protection of persons and property in the air and on the ground by regulating the height, location and visual and aural identification characteristics of certain structures[.]" 1959 PA 259, title (emphasis added). Because of that purpose, the act contains detailed guidelines on what the Michigan Aeronautics Commission (MAC) must evaluate to determine the effect, if any, a tall structure will have on airspace surrounding airports, including alterations to descents and ascents. See MCL 259.482a(2)(b) and (g), and MCL 259.481(e). Thus, the Legislature has recognized that there is a direct corollary between the permitting of tall structures near airports and "the safety, welfare, and protection of persons and property in the air and on the ground...." 1959 PA 259, title. This alone shows that the Airport Authority's concern for safety on the grounds it has jurisdiction to oversee, and for the planes and passengers flying into the airport, is real, particularized, and substantial.
Supporting the legislative determination that tall structures can have an effect on safety in the air and on the ground was public comments from several experienced pilots who have used the airport. That evidence showed that a new decline for landings (and inclines for takeoffs) resulting from the use of a higher airspace, and the likely need to circumnavigate the wind turbines by certain planes, may either decrease the safety of landing on the airport runway or cause planes to divert to another airport to avoid these concerns. There was also undisputed evidence that the airport's radar would be impacted if and when certain planes flew over the turbines. Additionally, the Federal Aviation Administration (FAA) determined that the wind turbines would interfere with air navigation and the use of instrument flight rule procedures but concluded the interference would not be substantial.
Second, the likely potential that some planes may no longer use the airport because of the undisputed need to enter higher airspace and then engage in a steeper descent to land (and steeper incline to take off), will cause the airport to lose revenue. Evidence presented showed that, on average, each plane landing at the airport spends $262. Thus, even if one less plane that would have otherwise used the airport diverts to another, the airport will have suffered a pecuniary loss. Because it is not the amount of pecuniary loss, but the fact of it occurring that counts, the Airport Authority established a pecuniary loss.
It is true that, unlike in a typical case where a money judgment is entered against a party, there is no absolute certainty as to the extent of any pecuniary loss the Airport Authority may experience. But under these circumstances, where the challenge is to permits that would allow future development of the turbines, it would be impossible to prove with absolute certainty a pecuniary loss.
These two factors together establish that the Airport Authority also has "special damages different from those of others within the community." Olsen , 325 Mich.App. at 193, 924 N.W.2d 889. Quite simply, Congress and the Michigan Legislature required these statutory investigations by the FAA and MAC regarding these wind turbines precisely to ensure that the safety of the airport , and the planes and passengers that use it, is not jeopardized. Because the Airport Authority is the legal entity charged with control over the airport, and a decision to grant these permits only impacts the airport and the customers that use it, I would hold that the Airport Authority is an aggrieved party and that the circuit court erred in not addressing the merits of the Airport Authority's appeal.