Elmwood Township acted within its authority when giving permission for Wolverine Power Cooperative to build a substation off M-72 that power officials say is necessary to supply reliable electrical service to Leelanau County.

So ruled 13th Circuit Court Judge Philip E. Rodgers Jr. in an oral opinion delivered Monday after hearing arguments presented by attorneys representing Wolverine Power and three people opposed to the substation.

Gaylord attorney Jim Pagels, who is representing a couple developing a subdivision near the substation site and an 88-year-old woman who has lived adjacent to the site for nearly half her life, said his clients are discussing whether to take further legal action.

“We were just surprised that the power company could come in and not abide by any zoning, by any setbacks,” added Mason Argue, who with his wife, Lisa, is developing Bahia Vista subdivision.

Rodgers said in his decision that the Elmwood Township Zoning Board of Appeals acted within its authority in upholding an interpretation by a former township zoning administrator allowing the substation. The project was allowed because it was deemed an “essential use” in the zoning ordinance.

“The court simply sees no legal grounds to prevent construction of a substation on this site under the then applicable section 3.4 of the Township Zoning Ordinance,” state Rodgers.

Section 3.4, which allowed electrical substations in all Elmwood zoning districts, no longer exists, having been replaced with a stricter version approved by the Township Board at its March 10 meeting that would not allow the substation to be built at the M-72 site. Rodgers left open an argument that the zoning amendment could be used to stop the substation.

According to Elmwood Township attorney Jim Young, there is some legal precedent in Michigan allowing a newly adopted zoning ordinance to regulate developments that are still on the drawing board. Those that are already under construction may be entitled to what are termed legally “vested rights.” Young spoke at the hearing to explain the township’s procedures.

“Let the record be clear,” said Rodgers. “This court has not addressed issues that might arise from the amendment of Section 3.4 or the application of vested rights argument as none were before it today. Certainly proceeding with construction with notice of the ordinance change would not itself confer vested rights.”

Attorneys spoke for nearly 1½ hours prior to Rodgers’ decision, which was issued after a break for lunch.

Lawyer William Perrone said opponents should never have been allowed to take their case to the township Zoning of Appeals. He also rebutted a statement made by Pagels.

Perrone said: “Clearly this is a NIMBY case, a ‘not in my backyard.’ You heard (Pagels) say this substation should be go to Garfield Township where it belongs,” he said.

But Pagels occupied most of the time, expounding on the pages of written arguments he had submitted and at times answering probes from Rodgers.

Said Rodgers: “It’s not that zoning doesn’t apply to (the substation). It’s just that it’s a use by right.”

Replied Pagels: “It’s exempted. It’s not a use by right.”

Rodgers also addressed an argument made by Pagels that comments made by trustee Terry Lautner at the Zoning Board of Appeals meeting held Feb. 6 tainted the ZBA decision. Lautner has signed an agreement with Wolverine to sell 8.7 acres of his farm to be used for the substation. In a previous decision, Rodgers had taken a former Elmwood trustee to task for selling property to a developer seeking Township Board permission to build a subdivision, establishing a strict standard that even the “appearance” of a conflict of interest would not be tolerated.

But Rodgers found that Lautner, whose financial interest in the project was well known and who spoke about the need for the substation to provided reliable power to farmers, was within his First Amendment rights — while offering an editorial comment.

“Since there is no evidence of hostility, threats or intimidation, and clear notice of his financial interest existed, and since he was present on his own behalf on a nondiscretionary issue, the court finds he used poor judgment but did not act illegally,” Rodgers said.

The hearing also offered a lighter moment on the same subject when Pagels argued that the ZBA decision should be overturned because Lautner “has the abililty to seat and unseat these people.”

Replied Rodgers: “Seating and unseating someone in Elmwood Township is more like an act of God.”