September 5, 2013

Juwi files lawsuit against Tipton Co. Board of Zoning Appeal

By Ken de la Bastide | Kokomo Tribune | September 5, 2013 |

TIPTON – The developer of the proposed Prairie Breeze Wind Farm has filed a complaint against the Tipton County Board of Zoning Appeal seeking judicial review of zoning decisions.

The lawsuit filed this week by juwi Wind in Tipton Circuit Court also alleges the Board of Zoning Appeals violated Indiana’s Open Door law during a July meeting.

Mary Solada, attorney for juwi Wind, said the company will request a change of venue from Tipton County.

BZA President Jerry Acres is named as a defendant in the legal action with the company claiming that he is not unbiased in considering the juwi application based on comments Acres made at public meetings.

The company has proposed a $300 million investment to place up to 92 wind turbines in northwestern Tipton County.

The petition states that Mr. Acres has demonstrated that he cannot make an unbiased and objective decision on the application based on his public statements and refusal to allow a public hearing on the matter.

“Since we first came to Tipton County, we have always followed the rules and procedures set forth when it adopted the wind ordinance and invited wind companies to consider investing in their community,” Michael Rucker, juwi CEO, said in a press release. “We hoped our request for modification of conditions would have been granted a fair and open hearing.

“Due to the constraints placed on communication with the BZA, we have not had an opportunity to explain to the members that the conditions placed on our approval were unreasonable,” he said. “At this point, Board President Jerry Acres has demonstrated a clear bias and cannot make an objective decision as to the merits of our application. We are confident that the court will agree with our position.”

juwi Wind in the complaint states it has exhausted all administrative remedies through the BZA and is seeking the judicial review alleging the board acted in an arbitrary manner in excess of its jurisdiction in denying the company’s request to modify the setback requirements for the placement of wind turbines.

The BZA in March approved a conditional use permit for the Prairie Breeze project with the stipulations that the turbines be located 1,500 feet from the property line of adjacent property owners and the creation of a property value guarantee.

The complaint states the county’s zoning ordinance requires a 1,000 foot setback and the BZA required the 1,500 foot requirement without any legal authority to do so.

The BZA at a July meeting to set the ground rules for a public hearing on the property value guarantee issue voted to deny juwi Wind’s request for a modification of the setback requirement without taking any conducting a public hearing.

The complaint notes that during the March hearing, Jerry Acres, president of the BZA, that his review of the application was not based on the merits of the application.

“On the E.ON vote, I looked more at the financial gains than probably the long-term losses,” Acres said of his vote in support of the Wildcat Wind Farm. “I probably didn’t do my homework on E.ON and that’s what I’m saying,” the complaint states.

Acres also said that the issue has gotten personal for him after visiting the property of a friend near the Wildcat Wind Farm.

“These comments from the Board’s President, Acres, demonstrate that he was not unbiased and objective, and that he improperly injected his personal feelings into the matter, for whatever reason,” the complaint states.

juwi Wind said because Acres didn’t allow a vote on the property value guarantee on Aug. 28, it was not an issue for judicial review.

The violation of the Indiana Open Door law complaint states because the BZA took final action on the setback modification request without providing proper notice to the public.

The complaint seeks that decision be declared void and sent back to the BZA for action.

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