Is an Ordinance Holding Back Sustainable Energy in EL?

A request by University Lutheran Church to build a solar array is being stymied by a 2012 East Lansing ordinance created to regulate alternative energy in the city.

At its Wednesday, July 12, meeting, East Lansing’s Zoning Board of Appeals (ZBA) tabled the church’s request for a variance, or exemption, after it was denied a permit by the City of East Lansing to construct a 20.5 kW system on the ground near its building.

University Lutheran, located at 1020 S. Harrison Road, proposed a new 60-foot by 16-foot ground-mounted photovoltaic (PV) array that would have joined its existing 19.84 kW rooftop solar array, approved in 2020 by the city.

The church was denied the permit for the new installation because East Lansing’s Ordinance 1256 prohibits the installation of anything larger than a “15 kWh (Kilowatt Hours)” at this site.

Ordinance 1256 was formally adopted by the City Council in January 2013 by a unanimous vote. Council members at the time were Mayor Diane Goddeeris, Mayor Pro Tem Nathan Triplett, Kevin Beard, Kathy Boyle and Vic Loomis. It amended Section 50-9 of Article I and Section 50-22 of Article IV while adding Section 50-156, a portion titled “Alternative Energy Generation Systems.”

After the recent denial by the city’s building department, the church had the option of taking its case to the ZBA.

To approve a variance, the ZBA must, among other considerations, find the application meets at least one of three criteria: the proposed plan must involve “practical difficulties or hardships resulting from the physical characteristics of the property,” involve “exceptional or extraordinary circumstances or conditions which apply to the property in question that do not apply to other properties,” or “such variation [must be] necessary for the preservation of a substantial property right possessed by other properties within the same zoning district.”

At the July 12 meeting, the ZBA quickly turned its attention to the expected output of the requested array. Board members William Schulz and Chris Wolf said they believed the limitations in the ordinance should remain in effect and City Council should change the limits, if it wishes to do so.

“We don’t know [the 15 kWh limit] was arbitrary,” Schulz said. “The Council had an environmental specialist who recommended [the limit]. We have no idea of the impact at this time. It opens the barn door and I don’t know that the current standards are arbitrary.”

Schulz was responding to remarks made by Rob Kaercher and parishioner Dale Romsos, who spoke at the meeting on behalf of University Lutheran Church. Kaercher is co-founder of Absolute Environmental Solutions (AES) of Lansing. AES has installed several solar arrays in the area, including those at the Islamic Center and the one already at University Lutheran Church.

While Kaercher said he understood the board’s standing and deliberative process, he was quick to point out the recent history of the city’s irregular approach to enforcement of the law. University Lutheran itself had previously been approved for its 19.84 kW rooftop solar array and the Islamic Center’s installation exceeds 20 kW, as well. According to Kaercher, both were approved by the building department without any variance. Kaercher also said the city had recently approved another AES solar project that was above the 15 kWh limit.

Kaercher took issue with the ordinance’s limit itself.

“On its face irrational, 15 kWh cannot be applied,” he said. “15 kWh is a measure of actual energy. What the ordinance is trying to do is limit the size of the system. For a 15,000 watt system, when you say kilowatt hours, that is what solar panels produce. 15 kilowatt hours is produced by a single solar panel in 15 to 20 minutes. The [15 kWh] limit basically asks people to turn off their panels after 20 minutes.

“You can look anywhere in the state [and] this hard limit doesn’t exist,” he said.

ELi revisits meeting minutes and videos to understand the context of the ordinance.

To better understand the context of the ordinance, ELi reviewed Planning Commission and City Council meeting minutes and videos from discussions on alternative energy from 2010 to 2013. We found a record of city leaders looking toward other communities for inspiration for its zoning code.

“The subcommittee reviewed ordinances from throughout Michigan and other states (notably California and New Jersey) to develop regulations that would suit East Lansing,” wrote then Planning and Zoning Administrator Darcy B. Schmitt in a 2012 staff memo. “Several clarifications were made to the ordinance as it was introduced to make solar energy generation systems more appealing to install… A subcommittee member also approached [former mayor] Doug Jester, who works on alternative energy issues throughout the State, to review the proposal and he made a critical suggestion to clarify the ability of a homeowner to sell energy back to a utility company, which has been incorporated into the ordinance.”

ELi reached out to Jester, a managing partner at 5 Lakes Energy consulting firm, for comment but he did not return our calls.

Past Planning Commission chairperson says changes should be made if they are needed.

Lynsey Clayton was chairperson of the Planning Commission when that body studied and adopted the ordinance language.

“I will be completely honest,” she told ELi in a phone interview, “I do not recall why we had a cap on the amount of energy. When we drafted the ordinance, we were trying to just create a template. But I don’t recall any specific discussion about limiting the amount of energy someone could produce…more about trying to have something to encourage the growth of this vital tool toward environmental sustainability.”

“I would never have voted to hold back our community from energy independence,” Clayton continued. “If that was the result of my vote, it wasn’t the intent. Our goal was to try and get something to start with. If this no longer works, which likely it doesn’t given the advancements in technology in this area, then I would implore our city government to ask the planning department and commission to reevaluate this matter and update as it sees fit and quickly. Unfortunately, our city staff has lost so much leadership that these basic functions are now hard.”

AES co-founder points out the city had approved other projects like University Lutheran’s proposal.

At the July 12 meeting, the ZBA appeared on its way to denying the variance request when Kaercher mentioned the recent AES project the city had approved that exceeded the ordinance’s limit.

“Can we find out if this is true?” asked ZBA Chairperson Andria Ditschman, directing her question to Tim Dempsey, interim director of Planning, Building & Development.

“We can find that out,” Dempsey answered, while making a note on his computer.

“I would like to know what has been approved,” Ditschman said. “[What] building permit was approved or zoning was done incorrectly.”

“It’s unfortunate that the applicant is caught in this,” ZBA member Beverly Bonning said at the meeting. “I’m generally not a fan of patchwork ordinances, but there could be a short-term fix and a long-term fix. What would be the timeline for City Council to focus on this with everything else going on in the city?”

“That’s a very fine question,” Dempsey said. “But I don’t have an answer. It might involve the Planning Commission, [the Commission on the] Environment, and possibly [the] Historic [District Commission].”

In the end, a majority of ZBA members decided to table the request until city staff could determine how recent installation requests had been handled.

William Schulz and Chris Wolf explain why they voted against tabling the request.

Schulz and Wolf voted against tabling because they do not believe it meets the five conditions required of all variances. These conditions, outlined in the staff report for the meeting include:

(1) The variance shall not be contrary to the public interest or the general intent and purpose of the Zoning Code;

(2) The variance shall not permit the establishment of a use within a given district which is prohibited therein;

(3) The variance shall not be a variance so commonly recurring as to make reasonably practical the formulation of a general regulation by the City Council;

(4) The variance shall not cause substantial adverse effect to properties in the immediate vicinity or in the zoning district where the variance is located; and

(5) The variance shall relate only to property that is described in the application for the variance.

Both Schulz and Wolf stated at the meeting they opposed granting the variance because they do not believe the proposal meets the third required condition.

“There is an ordinance that specified that the kw were supposed to exceed 15, and they already had 18 approved in 2020,” Schulz said in a follow-up telephone interview with ELi. “How that happened, we didn’t know. In my opinion, a variance wasn’t called for. If it’s appropriate that it’s greater than 15, then the City Council should decide that.”

University Lutheran is now in a holding pattern for its project.

While the ZBA waits to hear from city staff before moving forward (its next meeting is scheduled for Aug. 2), University Lutheran is left waiting.

The church congregation has been working hard to limit its carbon footprint. Before adding its rooftop solar array, the church reduced its electric bills by 40% by switching out 1,200 fluorescent lights with LEDs.

“It feels like East Lansing didn’t even know they had this [ordinance] on the books until they were looking at our request,” Romsos said to ELi. “And now we’re stuck waiting when we thought everything was going to move smoothly.”

Romsos said installation of the solar panels was supposed to begin the week of July 24. Contributions from church members and an eventual savings through the Inflation Reduction Act were going to be used to pay for the bulk of the array. In addition, the church took out a $30,000 loan that it had planned to pay back using the savings obtained from the new solar array.