Moratorium on applications for commercial wind project special land use permits (SLUPs); Mootness; Amendment under the Michigan Zoning Enabling Act (MZEA); Writ of mandamus

In this case involving a moratorium on applications for commercial wind project SLUPs, the court dismissed the appeal as moot. Defendant-Township of Speaker challenged the trial court’s grant of a writ of mandamus to plaintiff (doing business as Liberty Power), “requiring that its SLUP application be considered by Speaker by a date certain, as well the trial court’s holdings that the moratorium should have been passed by amendment to Speaker’s zoning ordinance, and did not advance a legitimate governmental purpose.” Speaker asserted “that the trial court erred in: (1) holding that the moratorium required an amendment under the MZEA; (2) determining the moratorium did not advance a legitimate governmental purpose; and (3) issuing the writ of mandamus.” Among other things, Liberty asserted that the appeal was moot. The court failed “to see any actual case or controversy with regard to whether Speaker lawfully enacted its initial moratorium for a legitimate governmental purpose. Speaker heard and denied Liberty’s SLUP application, and just days later, enacted a moratorium by referendum in accordance with the MZEA, which is what Liberty claimed was required.” Thus, it was “unclear what legal effect a ruling on these issues would have on the existing controversy.” Speaker argued the issue was not moot, asserting “that it expects Liberty to appeal the denial of its SLUP application[.]” But the court noted that “any potential appeal of Speaker’s denial of Liberty’s application does not alter this Court’s decision, as we should only consider the effect of our ruling on the existing controversy.” Speaker also asserted “that, even if moot, the issue of whether a police power moratorium is valid in these circumstances is one of public significance that is likely to recur, yet evade judicial review, citing the fact that Liberty raised the issue in another lawsuit[.]” However, merely “stating that municipalities often adopt moratoria outside of zoning ordinance amendments, citing to a federal district court case in which a municipality used its police power to adopt a moratorium and to the fact that Liberty has previously made this argument, has not convinced us that recurrence is likely, as opposed to simply possible. Michigan caselaw, albeit unpublished, has addressed this issue, and as Speaker argues, this issue may arise in a subsequent appeal of the decision denying the SLUP application.” The court was also not convinced “that this is a matter of public significance.” Likewise, it found Speaker’s argument as to the writ of mandamus moot.