Wells County wind turbine appeal denied by Indiana Court of Appeals 

The Indiana Court of Appeals has affirmed last year’s Huntington Circuit Court decision concerning wind turbines in southern Wells County, turning down an appeal of that decision by six residents of southern Wells County.

It is not certain if the matter will be appealed to the Indiana Supreme Court.

The appellate court, in a decision released May 12, said Special Judge Thomas Hakes of Huntington Circuit Court was correct in his ruling of June 10, 2014. In that ruling, Hakes gave what was in essence a split decision. He said the six couples attempting to have the 6-3 vote of the Area Plan Commission “were not aggrieved” by the APC’s decision to allow Apex Wind Energy to place 68 wind turbines in Harrison, Chester, Nottingham, and Liberty townships. He also said, however, that the reciprocal setbacks provision violated the property rights of three of the six couples that are plaintiffs to the suit.

Hakes told the APC to reconsider its decision about the reciprocal setbacks.

The six couples bringing the suit – James E. and Tamara L. Dunmoyer, Linus and Karen Harrold, Theron and Clara Miller, Michael and Barbara Butcher, Jeffrey and Janet Harshman, and Clarence and Beverly Zimmerman – appealed Hakes’ decision in a motion filed in early July of 2014. The Zimmermans, the Harrolds, and the Millers are the couples that, Hakes’ ruling said, would be financially impacted the by reciprocal setbacks.

A week ago last Tuesday, in a decision that has been promulgated within the past few days, three Indiana Court of Appeals judges – James S. Kirsch, Terry H. Crone, and Ezra H. Friedlander – affirmed Hakes’ ruling.

Original estimates said that the filings requested by the appellate court could take as much as six months. The court’s ruling came a little over 10 months from when the appeal was filed.

In a footnote in the Court of Appeals ruling, Kirsch – who authored the decision – said the judges “commend the trial court for the clarity and thoroughness of its written judgment, which have (sic) significantly assisted our appellate review.”

Patrick Hess, one of the plaintiffs’ attorneys, said his clients have 30 days from the time of the appellate decision – until June 11 – to decide if they want to appeal the case again, this time to the Indiana Supreme Court. The technical term, Hess said, is to file a “petition to transfer the case.”

“The Supreme Court does not have to agree to review the decision of the lower court; they could let it stand as is,” Hess said. “My clients are in the process of assessing what they want to do.”

Michael Lautzenheiser Jr., executive director of the Wells County Area Plan Commission, said the only consideration the APC has given to the matter is a decision not to hire its attorney – at the time, Andy Antrim – to file a court brief supporting its decision. He said it would not come up for discussion, even to adhere to Hakes’ order to reconsider the issue of reciprocal setbacks, until the 30 days allowed for appeal has expired.