Wind company responds to suit; Special judge named in case 

The wind company at the focus of a civil suit by a group of Fayette County landowners has finally weighed in on that suit.

Whitewater Wind LLC, a subsidiary of NextEra Energy Resources, filed its response this past week to a civil suit by the group of county landowners, which alleges that the company’s decommissioning agreement with county commissioners is not valid.

The company’s attorney, Mary Solada of Indianapolis, filed the response June 20 in Fayette Circuit Court, which seeks to dismiss the civil suit entirely based on claims that it was not filed in the proper amount of time per state law, that the suit improperly challenges the decisions by both the Fayette County Area Plan Commission and Board of Zoning Appeals, and that the court does not have subject matter jurisdiction, among other arguments.

Whitewater Wind LLC is the driving force behind the Whitewater Wind Farm project, which would see a commercial wind farm spread throughout a three county area – Fayette, Rush and Henry counties – with approximately 43 of those wind turbines in the farm located in Posey and Fairview townships.

The group of county landowners, who reside in those townships, are challenging the decommissioning agreement between Whitewater Wind LLC and the county commissioners based on their claims that the agreement did not adhere to the county’s zoning ordinance, specifically regarding financial assurance related to the decommissioning and removal of commercial wind turbines once they’ve reached their lifespan of roughly 30 years.

The landowner group also claims that the addendum signed by the county and Whitewater Wind LLC – which was created in response to many concerns from residents about the original decommissioning agreement allegedly not addressing financial assurances for taking the turbines down – still does adequately address the issue, and is not in compliance with the county’s zoning code.

“Plaintiffs have failed to bring before this court a viable claim for which relief can be granted and for which jurisdiction lies,” the response states. “In their complaint, Plaintiffs ask this Court to declare the Fayette County Decomissioning Agreement and the Addendum to the Decommissioning Agreement between Whitewater Wind and the Board of Commissioners void for failing to comply with the Fayette County Zoning Ordinance.

“However, the allegations establish that the Agreement and Addendum comply with the Zoning Ordinance, and that their approval by the Board of Commissioners was not arbitrary or capricious because the agreements were approved by other reasonable people, i.e. the Fayette County Area Plan Commission and the Fayette County Board of Zoning Appeals,” the response continued.

Based on that, Solada states in the response, the entire case should be dismissed by the court, while adding that the landowners challenge to the decommissioning agreement is a ploy to interfere with the development of the Whitewater Wind Farm.

“Accordingly, the Court should dismiss the Plaintiffs’ Complaint in its entirety and disallow Plaintiffs’ misguided efforts to interfere in the planned development of a wind energy conversion system,” the response states.

Other news in the case this week included the naming of a special judge in the case this past Wednesday, as Franklin Circuit Court Judge Clay Kellerman was appointed special judge, after Fayette Circuit Court Judge Beth A. Butsch recused herself earlier this month. Butsch removed herself from the case in order to avoid the appearance of impropriety.

Kellerman has served as judge of the Franklin Circuit Court II since 2008, having recently been reelected in 2014.

No decision by Kellerman, on the motion by Whitewater Wind LLC and the Fayette County Board of Commissioners, to dismiss the suit has been made.