ESCANABA — A public hearing Tuesday on a yet unfinished ordinance regulating renewable energy in the county offered a glimpse into how Delta County could manage utility scale solar.

“I just want to remind folks, a big reason that you’re all sitting up there tonight was that one of the former commissioners had a massive conflict of interest when it came to solar, and it really was Bob Barron and Dave Moyle who decided what those setbacks were going to be in the end,” said Joe Kaplan, who serves as on the Delta Conservation District Board but spoke as a resident at the Delta County Board of Commissioners meeting Tuesday.

Kaplan was the only resident to speak on the ordinance, which may have been due to no draft of the document being publicly available.

The ordinance is still at the planning commission level and will be discussed at that board’s next meeting, set for Dec. 2 at 5:30 p.m. However, due to certain timing factors, a notice advertising the the public hearing held at the board of commissioners meeting Tuesday was published in the Daily Press. Rather than cancel the hearing, the board of commissioners allowed the public to give input on renewable energy regulation.

The ordinance being written is a CREO, a “compatible renewable energy ordinance” that would bring the county in line with new regulations regarding siting of renewable energy projects. The ordinance must be no more restrictive on things like setback, height and lighting requirements than Public Act 233, which was signed into law last year. If the ordinance is more restrictive, developers can side-step the county and apply for necessary permits directly from the Michigan Public Service Commission (MPSC).

PA 233 has been wildly controversial. Critics say the law strips local control of the site plan process from municipalities by dictating what restrictions can be placed on developments. Supporters claim the law restores the rights of property owners to develop their properties as they see fit, even if the developments are unpopular with local units of government.

Delta County is in a unique position with regards to the new mandate. While other communities are being forced to relax their regulations on solar and wind development, it is very likely that any CREO the county adopts will be more restrictive than what is already on the books.

The county’s existing solar ordinance, which was adopted in June of 2022, was heavily modified by the board of commissioners prior to its adoption. Multiple pages of the version sent by the planning commission to the commissioners were stricken, with the two most drastic changes being the elimination of a detailed setback system that increased setbacks from properties not participating in a solar development and shifting solar projects from a conditional use to a permitted use in five zoning districts.

As it stands, solar developments are a permitted use in C-1, C-2, and C-3 commercial districts, as well as industrial (I), resource production (RP), and agricultural (AP) districts. All setbacks, the distance solar panels and other equipment must be from a lot line, were set to 30 feet — the same distance required for other types of construction in the county, like building a garage.

Under PA 233, the minimum setback from the lot line of a non-participating property is 50 feet. The setback from occupied community buildings and dwellings on nonparticipating properties is 300 feet from the nearest point on the building’s outer wall.

“There was a lot of work done at the planning commission level previously that was basically ignored when it got to the commission. So I would say that you should reevaluate what those setbacks are and take a look at what was changed from the original planning commission document because the planning commission seemed far more equitable than what the commission ended up deciding and changing,” said Kaplan.

Commissioner Kelli van Ginhoven said the planning commission had formed a three-person subcommittee — which includes both the planning commission chair and County Commissioner Matt Jensen — to review the work of the prior planning commission and recommend appropriate amendments.

The changes made in 2022 were highly controversial at the time of their passing, largely because of the involvement of Commissioner Bob Barron, who was removed from the commission last May during a special recall election.

Barron was one of a number of Escanaba Township landowners who were contracted to use their land for the development of a utility-scale solar farm in 2017. While solar was initially supported by the township, a shift in the makeup of the township’s planning commission and later the township board ultimately ended the project with the adoption of an amendment to the township’s zoning ordinance. The 13-page amendment adopted in 2022 uses an overlay district to restrict utility-scale solar development to an area of less than 400 acres bordering Brampton Township — far from the site of the proposed solar project — the vast majority of which is contained in a single parcel. A further restriction in the ordinance limits solar developments to 20% of a single parcel, leaving less than 80 buildable acres in the township.

Escanaba Township recently approved their own ordinance they have called a CREO, but that ordinance continues to use the overlay district to restrict solar development. The district makes the ordinance incompatible with rules put forward by the MPSC in October, but the township is betting on a class action lawsuit they joined against the MPSC being successful and bringing the ordinance into compliance.

While the township’s 2022 amendment and the recently adopted ordinance the township considers a CREO both prohibit solar development on Barron’s land, Barron and other landowners from the 2017 project have continued to seek ways to develop their properties. After voting for the changes to the county’s solar rules, Barron lead an attempt to have a portion of Escanaba Township annexed to neighboring Cornell Township, which would have been under the county’s new rules. That annexation attempt failed.

Currently, the landowners are working with DTE Energy, which has repeatedly sent representatives to township meetings. Those representatives have said they want to work with the township directly on developing utility-scale solar and are potentially willing to accept rules that are more restrictive than PA 233’s requirements. With the pending litigation, the township has not given any indication it would be willing to work with DTE or any other developer.