Court upholds Rush County wind decision 

INDIANAPOLIS – The proposed Flat Rock Wind Project in Rush County became a little less likely to happen, at least in Rush County, as of this week.

The Indiana Court of Appeals Tuesday morning issued its opinion on the case involving Flat Rock Wind, LLC. – also known as Apex Clean Energy – and the Rush County Area Board of Zoning Appeals, with that opinion upholding the decision back in July 2015 to enact a 2,300-foot setback distance, from non-participating property lines, on Apex’s special exception permits for construction of industrial wind turbines as part of the proposed wind project which is slated to span both Rush and Henry counties.

That decision by the BZA was later upheld, during a challenge by Apex Clean Energy in Rush Superior Court, by Judge Matthew D. Bailey. Apex argued that the BZA does not have the authority to change the setback distance from the county-stated minimum of 1,000 feet, while Bailey ruled that the BZA did, in fact, have such authority. The decision led to Apex appealing the ruling, thus sending the case to the Court of Appeals.

Apex, in its oral arguments presented by the Fort Wayne law firm Haller & Colvin to the Court of Appeals in Indianapolis on Jan. 13, questioned whether the Rush Superior Court had “abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings,” and whether “the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a commercial Wind Energy Conversion System, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement.”

Regarding the argument by Apex Clean Energy that the Rush Superior Court should not have allowed the group of Rush County landowners to become involved in the appeal filed by Apex regarding the BZA’s decision, the Court of Appeals stated that “In their petition, Remonstrators alleged to be interested parties by virtue of their ownership of real estate in the immediate vicinity of the wind facility proposed by Flat Rock.

“They claim that if the decision of the BZA is modified or reversed, their real estate values and personal health will be significantly and directly affected,” the court continued. “Additionally, if the BZA, at some point, elects to change its decision or settle the lawsuit, Remonstrators would no longer be adequately represented by the BZA … we conclude that the trial court did not abuse its decision by granting the Remonstrators’ motion to intervene.”

In its response to the second argument presented by Apex, that the trial court erred in its decision to uphold the BZA’s decision – which Apex originally argued against that it exceeded its authority in making – the Court of Appeals stated that “we presume the determination of the BZA, an administrative agency with expertise in zoning matters, to be correct … we will reverse only if the BZA’s decision is arbitrary, capricious, or an abuse of discretion.”

The court added that the minimum setbacks in the Rush County zoning ordinance, for wind turbines, are just that – a minimum guideline.

“Based on the explicit language of the Zoning Ordinance, we conclude that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring this Setback,” the court’s opinion states. “In interpreting the Zoning Ordinance, the BZA viewed the siting setback as a ‘minimum’ guideline, which was subject to ‘reasonable restriction’ to preserve the health and safety of the public … because we find the BZA’s interpretation reasonable and consistent with the Zoning Ordinance itself, we must defer to the agency’s decision.”

The Court of Appeals concluded its opinion by stating the Rush Superior Court properly allowed the group of landowners to become involved in the judicial proceedings, along with adding that the Rush County BZA did not exceed its powers with its setback requirements for the project.

It is unknown whether Apex will appeal the Court of Appeals ruling to the Indiana Supreme Court.

As for the Rush County BZA, it finds itself in another civil proceeding – currently ongoing – brought against it by the West Fork Wind LLC., also known as NextEra Energy Resources, which was filed last month in Rush Superior Court.

Details of that civil suit were unavailable as of the News-Examiner’s Tuesday deadline, but the suit filed by NextEra against the Rush County BZA likely tackles the BZA’s decision in December 2016 to enact 2,640-foot setbacks from non-participating landowners for turbines in the West Fork Wind Energy Center project – slated to encompass Rush, Fayette and Henry counties – along with those turbines being 200 feet tall or less.

The News-Examiner will update that story as more details become available.