The Indiana Court of Appeals has published a potentially precedent-setting decision upholding a Warrick County resident’s right to build a wind turbine on his property. The three-judge panel unanimously affirmed an earlier decision by Warrick Superior Court Judge Keith Meier.
In its ruling, the state appeals court said not allowing wind turbines in a residential area would prevent property owners from benefiting from public policies encouraging alternative energy development.
The ruling is significant because as a published opinion, rather than just a case-specific memorandum, it can be cited by attorneys arguing similar cases in other communities, said Morrie Doll, attorney for the Warrick County Board of Zoning Appeals. He said it could set precedent not only in Indiana but nationally.
“You can count on two hands all of the cases in the country dealing with this,” he said.
Attorney Les Shively, representing objecting neighbors, said the court did not address a portion of Meier’s decision holding David Johnson to a limit of 40 feet for the wind turbine, effectively addressing the neighbors’ concern.
But he said the homeowners would likely ask the appeals court for a rehearing and could also ask the Indiana Supreme Court to consider it.
The appeals court ruling upholds Meier’s decision that the wind turbine complies with the county’s zoning ordinance as long as it is appropriately sized to meet county requirements.
The question under consideration was whether such a wind turbine – which would generate electricity for household use – could be considered an appropriate accessory structure to a residential property and not an entirely separate structure that should be considered separately under the zoning ordinance.
In 2008, neighbors in the Huntington Creek Subdivision near Newburgh objected when Johnson sought a variance from the county’s Board of Zoning Appeals to build a 60-foot high wind turbine, which would be 20 feet taller than the maximum height allowed in the county’s zoning classification for single-family dwellings. He sought the variance so the turbine high would stand above trees in the area.
At the time, the question was not whether the turbine was permitted, Doll said, but whether the height variance was appropriate.
But in challenging the wind turbine, the residents objecting to it argued not only against the height variance but also as to whether it was allowable under the wording used in the zoning ordinance.
The ruling hinged on interpreting phrasing in the county’s zoning ordinance saying that such accessory structures should be “customary in connection with” the principal building or use of the property. However, the ordinance does not define what is considered an accessory or what customary means.
Doll said the zoning ordinance purposefully does not define what a type of accessory structure is because “when you begin to list them, what you fail to list is excluded.”
“It’s up to the board and its executive powers to decide if this is an accessory,” he said.
The neighbors had argued that until wind turbines are shown to be a customary or habitual practice in areas zoned for such residential use that they should not be permitted.
But the county contended that argument was circular because wind turbines could never become customary if they weren’t allowed to be built in the first place. Not allowing any wind turbine to be built in residential areas, the county argued, would prevent property owners from benefiting “from the public policies enacted to spur the growth of alternative energy.”
“Such a requirement would be contrary to public policy,” Judge Elaine Brown wrote in the appellate decision.
Brown noted that state and federal governments have made it a priority to encourage using renewable energy technologies such as wind power.
Doll also said that basing an ordinance on what is customary now and expecting that to be the same several years later was not logical.
“Customs change over time. Historically indoor plumbing wasn’t a custom. You can’t say whatever exists today will be customary three years from now,” he said.
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