79 Michigan Municipalities Take Fight for Local Zoning Control to State Supreme Court
Foster Swift Files Application for Leave to Appeal in Almer Charter Township et al. v. MPSC, Challenging the Michigan Public Service Commission’s Unlawful Rewriting of Public Act 233 of 2023
GRAND RAPIDS, Mich. — Foster Swift Collins & Smith, PC today announced the filing of an Application for Leave to Appeal in the Michigan Supreme Court on behalf of 79 townships and counties from across Michigan. The application asks the Supreme Court to reverse the Michigan Public Service Commission’s unlawful rewriting of Public Act 233 of 2023 (“PA 233”), the renewable energy siting law the Legislature enacted two years ago to balance meaningful local control with state energy goals.
The application, filed June 18, 2026, in Case No. 373259, follows a May 2026 published decision by the Michigan Court of Appeals that correctly struck down two portions of the MPSC’s October 10, 2024 Order, but upheld two others. Appellants now ask the Supreme Court to finish the job.
What the Legislature Promised — and What the MPSC Took Away
PA 233 struck a carefully negotiated compromise: utility-scale wind, solar, and energy storage facilities may seek approval from the MPSC rather than local governments but only if those local governments have not already adopted a “Compatible Renewable Energy Ordinance” (CREO) meeting the minimum standards set by the Legislature. A municipality with a valid CREO retains its zoning authority and its right to regulate the siting of such facilities within its borders.
Dozens of Appellants spent most of 2024, at considerable time, cost, and public engagement, going through the full statutory process to adopt CREOs, exactly as the Legislature invited them to do. In Speaker and Fremont Townships, voters themselves went to the polls and overwhelmingly approved their communities’ CREOs by referendum. These communities acted in good faith, in reliance on the Legislature’s express promise that a CREO would allow them to keep their seat at the table.
The MPSC then broke that promise. Before PA 233 even took effect, the Commission issued an order that rewrote the statute’s definition of CREO to mean something the Legislature never enacted: that a local ordinance may contain “only” the specific setback, fencing, height, and sound standards listed in Section 226(8), and nothing more. Under this interpretation, local governments with CREOs cannot require a special land use permit, cannot conduct a public hearing at developer expense, cannot require a decommissioning plan or a fire response plan, cannot limit the zoning districts in which facilities are permitted, and cannot charge an application fee or escrow covering the costs of review. Overnight, the CREOs these communities had lawfully adopted, the very ordinances that were supposed to preserve local control, were declared non-compliant not by the Legislature, but by a bureaucratic agency.
The MPSC’s Overreach Was Sweeping
The MPSC’s October 2024 Order did not stop at CREOs. It also: invented a new category of “hybrid facilities” or combinations of wind, solar, and storage that together meet the jurisdictional threshold, even though PA 233 contains no such category; redefined “affected local unit” to exclude local governments that do not exercise zoning authority, stripping non-zoning governments (such as counties in unzoned areas) of statutory notice rights and financial benefits; rewrote unambiguous statutory timelines; and created exceptions to mandatory public meeting requirements. The Legislature gave the MPSC none of this authority.
The Court of Appeals correctly vacated the MPSC’s redefinition of “affected local unit” and its rewriting of statutory timelines, holding that “an agency cannot — just like a court cannot — rewrite the plain terms of a statute under the guise of statutory interpretation.” But the court applied that sound principle selectively, permitting the same type of overreach when it came to CREOs and hybrid facilities.
The Legal Arguments
Appellants’ application presents two principal issues for Supreme Court review.
First, the MPSC’s narrow CREO definition is flatly inconsistent with the statutory text. PA 233 defines a CREO as an ordinance “the requirements of which are no more restrictive than the provisions included in section 226(8).” The phrase “no more restrictive than” sets a ceiling on substantive standards; a CREO’s noise limits cannot exceed the state standard, its setbacks cannot exceed the state standard. It does not say a CREO may contain “only” those items. The MPSC conflated “additional” with “more restrictive” words the Legislature deliberately did not use as synonyms. The Supreme Court’s own preemption jurisprudence, including DeRuiter v. Byron Township, confirms that additional local requirements do not create a conflict with state law simply because the state has also regulated the subject.
Second, “hybrid facilities” simply do not exist in PA 233. The Legislature expressly authorized the MPSC’s jurisdiction over solar facilities, wind facilities, and energy storage facilities meeting defined capacity thresholds. It allowed energy storage to be included within solar or wind facilities. It did not allow solar and wind facilities to be combined to manufacture jurisdictional eligibility for projects that would otherwise fall below the threshold and remain subject to local approval. The MPSC’s invention of hybrid facilities expands its own jurisdiction beyond what the Legislature authorized and opens the door to smaller projects evading local zoning by bundling together.
What Is at Stake
As the application notes at the outset: “Thirty-seven million acres is all the Michigan we will ever have.” This case will determine who gets to decide what happens to the farmland, open space, and rural communities that define Michigan’s character. The 79 Appellants represent some of the most productive agricultural land in the state. An additional 43 townships and counties filed formal resolutions supporting Appellants’ position. Eleven amicus briefs were filed in the Court of Appeals. These communities are not opposed to renewable energy; they are fighting for the right to have a meaningful voice in how and where it is sited in their own backyards, a right the Legislature expressly preserved.
The MPSC’s Order, if allowed to stand, would render the CREO process a legal fiction: communities would go through months of public hearings and ordinance adoption procedures, only to discover their ordinances have been declared invalid because they did anything beyond copying the narrow list in Section 226(8). The Legislature never intended that result. As the Court of Appeals recognized in striking down other parts of the Order, courts — and agencies — are not free to rewrite statutes to solve perceived practical problems. That principle must apply consistently.
“Our clients acted in exactly the good-faith manner the Legislature invited when it enacted PA 233,” said Michael D. Homier, lead counsel for Appellants. “They spent months and considerable public resources adopting compatible ordinances to preserve local zoning authority. The MPSC rewrote the rules before the ink was dry and effectively nullified those efforts. The Michigan Supreme Court has never permitted that kind of agency overreach, and we are confident it will not permit it here.”
About Foster Swift Collins & Smith, PC
Foster Swift Collins & Smith, PC is a Michigan law firm with offices in Grand Rapids and Lansing. The firm’s municipal law practice, led by shareholder Michael D. Homier, represents local governments across Michigan in matters of zoning and land use, renewable energy siting, intergovernmental relations, open meetings, FOIA, and economic development. Foster Swift has represented local governments in PA 233 matters since the law’s enactment.
